The HRLRC has prepared a comprehensive submission, Towards a Tasmanian Charter of Human Rights, which recommends that a Tasmanian Charter have the following key features:

• The Charter should promote a dialogue about human rights between parliament, the executive, the courts and the community.  (The Proposed Model is a dialogue model.)
• The Charter should only recognise and protect the human rights of human beings.  (The Proposed Model only protects the rights of human beings.)
• The Charter should enshrine all civil, political, economic, social and cultural rights recognised by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.  (The Proposed Model does not adequately enshrine economic, social and cultural rights.)
• The Charter should balance rights, responsibilities and other interests.  It should recognise that certain rights are absolute, such as the right to protection from torture and cruel, inhuman or degrading treatment.  All other human rights should be subject to such reasonable limits as can be demonstrably justified in a free and democratic society.  (The Proposed Model provides appropriately for limitations of human rights.)
• The Charter should establish robust pre-legislative human rights scrutiny mechanisms.  New bills introduced into parliament should include a statement as to their ‘human rights compliance’ and a Joint Committee on Human Rights should review the human rights compatibility of all bills.  (The Proposed Model includes Statements of Compatibility but does not establish a Joint Parliamentary Committee.)
• The Charter should bind ‘Tasmanian public authorities’, including Ministers, bodies created by Tasmanian laws and undertaking public functions, and private entities that perform public functions on behalf of Tasmanian public authorities.  (The Proposed Model binds bodies ‘funded or controlled’ by government, but it should bind all bodies who ‘exercise functions of a public nature’ on behalf of the government.)
• The Charter should require that public authorities act compatibly with rights and give proper consideration to human rights in decision making.  (The Proposed Model requires public authorities to act compatibly, but only provides a limited requirement for the proper consideration of human rights.)
• The Charter should require courts to interpret all Tasmanian law compatibly with human rights, but only so far as is possible consistent with statutory purpose.  The Act should not empower courts to invalidate legislation.  (The Proposed Model does both these things.)
• Where legislation cannot be given a human rights-consistent interpretation, the Supreme Court of Tasmania should have the exclusive power to make a Declaration of Incompatibility.  Such a declaration would not affect the validity of the legislation but would require that parliament reconsider that legislation within a specified period.  The decision as to whether to amend, repeal or leave the legislation untouched would be entirely a matter for parliament.  (The Proposed Model provides for this dialogue between the courts and parliament.)
• The Charter should provide people with effective judicial and non-judicial remedies where their human rights are breached by a Tasmanian public authority.  There should be a stand alone cause of action and all relevant relief, including compensation, should be available.  (The Proposed Model does not contain a stand alone cause of action and expressly states that damages will not be available.  It currently has a confusing regime of judicial and non-judicial remedies.)
• The Charter should contain recognition of the human rights of Aboriginal People in the Preamble, in particular their distinct role and place as the First Peoples of Tasmania.  (The Proposed Model does not currently include this reference.)

The HRLRC further recommends that the Tasmanian Charter be accompanied and complemented by a comprehensive program of human rights education, both for the public and community sectors, and that legal and advocacy services be adequately resourced to enable people to understand and vindicate their human rights.

The Dinner was addressed by Louise Arbour (President and CEO, International Crisis Group and former United Nations High Commissioner for Human Rights) and The Hon Rob Hulls MP (Deputy Premier and Attorney-General of Victoria).

The Executive Director of the Human Rights Law Resource Centre, Phil Lynch, delivered a speech entitled ‘Human Rights at the Cross-Roads’. 

However, the Rudd Government’s failure to commit to a comprehensive, national Human Rights Act — a key recommendation of the Consultation which was supported by over 87% of a record 35,000 public submissions — is a missed opportunity to strengthen Australia’s democracy and build a fairer, more inclusive community.

A Human Rights Act deferred is human rights denied.  The Government’s deferral of a Human Rights Act until at least 2014 — when the new Human Rights Framework will be reviewed — is a denial of the many benefits which demonstrably accompany such an Act.  

Evidence and experience from Victoria and the Australian Capital Territory, both of which have their own Human Rights Acts, demonstrate that a national Act would promote more accountable government, improve public services, address poverty and disadvantage, and enshrine fundamental, unifying values.  Instead, the homeless, the elderly, people with mental illness and children with disability — all of whom have been beneficiaries of human rights laws in Victoria and the ACT — must now wait at least another 4 years before their human rights are adequately protected and promoted at the national level.

The deferral of a Human Rights Act aside, there are a number of significant and valuable commitments contained in the new “Human Rights Framework”.  These commitments include the establishment of a Joint Parliamentary Committee on Human Rights, which will be mandated to review legislation and conduct inquiries on human rights issues, and the development of a range of  scrutiny mechanisms to ensure that Australian laws and polices are compatible with human rights.  These measures will improve the development of laws, policies and practices and play an important role in ensuring that human rights are properly considered in both legislative and executive decision-making processes. 

The Government has also committed to invest much needed funds in human rights education – providing $2 million over 4 years to the community sector and $6.6 million over the same period to the Australian Human Rights Commission.  This reflects the recommendation of the National Human Rights Consultation Committee that “human rights education be the highest priority”.  The Government will also engage in more extensive consultation on both international and domestic human rights issues with civil society.  These are important initiatives and should not be discounted.  If properly implemented, they will assist in further developing a culture of respect for human dignity and human rights in Australia. 

Critically, however, the effectiveness of such measures will be substantially reduced without a robust enabling framework in the form of a comprehensive, judicially enforceable Human Rights Act.  Without such an Act, many vulnerable people are left without human rights remedies and Australians are forced to look to international human rights standards rather than have regard to local human rights laws.  As one homeless man said to me, ‘It is like icing without a cake’.  Under the Rudd Government, he’ll have to wait at least another 4 years for that.

In announcing the Framework, the Attorney-General was correct in stating that the “enhancement of human rights should be done in a way that unites us” rather than divides us.  Far from being divisive, however, a Human Rights Act would unite us through legal protection and institutional strengthening of those Australian democratic values we hold in common.  As demonstrated by the Apology to the Stolen Generations, political leadership and vision can unite people, even on controversial issues.  That is particularly the case when what is proposed is good, evidence-based policy that resonates deeply with our Australian commitment to respect, tolerance, fairness, freedom and the rule of law.

For the next 4 years at least, Australians will need to continue to look to international human rights laws and UN institutions in New York and Geneva for many of the human rights protections that should be enshrined in law here at home. 

The campaign for a Human Rights Act that befits, protects and unites us has only just begun.

Philip Lynch is Executive Director of the Human Rights Law Resource Centre

Background

On 21 April 2010, the Attorney-General launched the Federal Government’s response to the National Human Rights Consultation, entitled ‘Australia’s Human Rights Framework. 

The Government’s Framework fails to implement the key recommendation of the National Human Rights Consultation Report – supported by over 87% of a record 35,000 submissions – that Australia enact a federal Human Rights Act.

The Government’s Human Rights Framework does, however, contain a number of significant commitments to strengthen the promotion and protection of human rights in Australia:

• establishing a new Parliamentary Joint Committee on Human Rights to provide greater scrutiny of legislation for compliance with Australia’s international human rights obligations;
• requiring that each new Bill introduced into Federal Parliament is accompanied by a Statement of Compatibility with Australia’s international human rights obligations;
• reviewing legislation, policies and practice for compliance with the seven core international human rights treaties to which Australia is party;
• investing over $12 million over four years in various education initiatives to promote a greater understanding of human rights across the community;
• developing a new National Action Plan on Human Rights to ‘outline future action for the promotion and protection of human rights’;
• consolidating and harmonising federal anti-discrimination laws into a single Act; and
• creating a ‘Human Rights Forum’ to enable whole-of-government engagement with non-government organisations on annual basis.

The Government has committed to review the Framework in 2014 to ‘assess its effectiveness in the promotion and protection of human rights in Australia’. 

A copy of the ‘Human Rights Framework’ is available at www.ag.gov.au/humanrightsframework. 

Further information about the National Human Rights Consultation, including the outcome of the Committee’s report, is available at /www.hrlrc.org.au/our-work/focus/national-consultation/.

An HRLRC opinion piece on the new Framework, published on ABC Online, is available at www.abc.net.au/unleashed/stories/s2879605.htm.

The report aims to ‘identify and explore best practice processes for developing a new Bill of Rights for the UK’.  The report analyses evidence from related domestic and international experiences (including the ACT, Victoria and Australia) and identifies key principles to underpin the development of a Bill of Rights, regardless of which political party is in power.

The Human Rights Law Resource Centre was interviewed for the research and is extensively and positively cited through the report. 

The key finding and recommendations as to the process of creating a Bill of Rights include that it be:

• Non-regressive: Any future UK Bill of Rights should not dilute existing protection provided by the HRA, either in relation to the specific rights protected, or by weakening the existing machinery for the protection of Convention rights.  Any process that starts from a premise of going backwards would set a damaging precedent internationally.  
• Transparent: Politicians should be transparent about the purpose of a Bill of Rights and the terms of reference and methods of the process by which they propose to create it.  This entails a clear procedural commitment to act on the results of public consultation and deliberation within clearly articulated parameters.
• Independent: The body running the process should be demonstrably non-partisan, independent of government and have no vested interest in the outcome.
• Democratic: For the outcome to be seen as having democratic legitimacy, the process must also be democratic.  This principle recognises that Bills of Rights are not only a constraint on the exercise of arbitrary power; they are also a positive instrument to enable relatively powerless groups to have an effective say in the democratic process.
• Inclusive: The process should place the highest premium on eliciting the views and experiences of groups whose human rights are most vulnerable to being breached, and should give those voices an elevated status in the assessment of responses and in the final outcome.
• Deliberative and participative: The process should be an exercise in building citizenship, not merely ‘market research’.  It should provide multiple opportunities for participation and, ideally, properly constructed forum(s) for deliberation which should be used to educate and invigorate the wider consultation.
• Educative: The public should be informed to the greatest extent possible about existing human rights protections and options for building on them, and about their duty to respect the rights of others.  A minimum requirement is the provision of accessible and impartial information and the correction of myths and misperceptions about human rights and the HRA.  
• Evidence-based: Actors concerned with the protection and promotion of human rights should advocate for a concordat that would bind all parties that signed it to certain rules of engagement; principally, an agreement not to use language or bring stories into the public domain that knowingly distort the purported impact of human rights and the HRA.  This would help to ensure that all parties commit themselves to a process which is avowedly educative and non-partisan and does not trade in myths or seek to use the Bill of Rights as a proxy for unrelated issues.
• Reciprocal: The process should be a two-way dialogue in which the government, too, is educated.  The imprint of the process must be visible and acknowledged in the final outcome.
• Timed: Any process should have a clear timeframe with, at a suitable juncture, a momentum-building phase.  It should not be indeterminate.
• Political commitment:  The process should be adequately resourced and there should be a political commitment to act on the outcome of consultation.

The report is available at www.equalityhumanrights.com/legislative-framework/bill-of-rights/developing-a-bill-of-rights-for-the-uk-research-report/.  

Two years on, the Government’s response to the recommendations of the National Human Rights Consultation, in particular the enactment of an Australian Human Rights Act, present the Prime Minister with another opportunity to exercise responsible leadership and unite us around fundamentally Australian values. 

The Consultation Committee’s report was released following one of the most extensive exercises in participatory democracy in Australian history.  The independent committee received over 35,000 submissions and hosted 66 roundtables throughout metropolitan, regional and rural Australia.  The committee found that, ‘after 10 months of listening to the people of Australia, [there is] no doubt that the protection and promotion of human rights is a matter of national importance.’ 

On 26 January 2010, Gerard Henderson wrote that the report revealed that ‘a majority of Australians believe human rights are adequately protected now’.  This, however, tells only a small part of the story.  Yes, as Henderson wrote, most Australians may be ‘happy with their lot’, but most Australians are also informed, sophisticated and empathetic enough to recognise that their lot is not everyone’s lot.  Reflecting this, the report found that the patchwork of human rights protection is ‘fragmented and incomplete and its inadequacies are felt most keenly by the marginalised and vulnerable’.  There was a strong view that ‘we could do better in guaranteeing fairness for all within Australia and in protecting the dignity of people who miss out’.  This was corroborated by independent research commissioned for the report which demonstrated very strong support, up to 75 per cent, for further measures to protect the human rights of people with mental illness, the elderly, Aboriginal Australians and people with disability.  

Henderson further wrote that the push for a Human Rights Act ‘seems doomed’, citing the Attorney-General’s abundantly reasonable observation that ‘the enhancement of human rights should be done in a way that as far as possible unites a community rather than causes further division’.  Again, however, this only reveals a small part of the story.  The committee’s report demonstrated widespread public support for legislative and institutional action to promote human rights.  There was very strong support for a Human Rights Act.  87 per cent of submissions to the Committee which considered the issue supported a Human Rights Act, while the independent research demonstrated 57 per cent support and only 14 per cent opposition.  This compares very favourably with support and opposition pre-Apology. 

There is widespread public and political consensus on the implementation of many of the recommendations made by the National Human Rights Consultation Committee, including enhanced human rights education and strengthened parliamentary scrutiny of fundamental rights and freedoms.  The Government should move immediately on these. 

While it is true that there is less consensus regarding a Human Rights Act, the opposition to such an Act is often overstated, particularly that of religious groups.  Many religious groups, leaders and churches support a Human Rights Act, including the Anglican General Synod and the Uniting Church.  So do many past and present leaders from all sides of politics and all corners of the nation, among them Malcolm Fraser, Neville Wran, Gareth Evans, Fred Chaney, Steve Bracks, Michael Lavarch, Rob Hulls and Natasha Stott Despoja. 

The federal Attorney-General is correct in expressing a preference for the enhancement of human rights in a way that unites rather than divides us.  As demonstrated by the Apology, however, political leadership and vision can unite people, even on controversial issues.  That is particularly the case when what is being proposed is good, evidence-based policy that resonates deeply with our Australian commitment to respect, tolerance, fairness, freedom and the rule of law. 

Far from being divisive, political leadership on an already popular Human Rights Act would unite us through legal protection and institutional strengthening of those Australian democratic values we hold in common. 

Philip Lynch is Director of the Human Rights Law Resource Centre

The Human Rights Law Resource Centre considers that all human rights are interdependent, mutually reinforcing and indivisible.  We consider that an Australian Human Rights Act should enshrine social and economic rights and that both international law and Australian constitutional law clearly establish that such rights are justiciable and enforceable. 

Consistent with this view, the Centre obtained a Memorandum of Advice from Peter Hanks QC, Debbie Mortimer SC, Associate Professor Kristen Walker and Graeme Hill on the justiciability of social and economic rights under a Commonwealth Human Rights Act. 

Contrary to the brief advice from the Solicitor-General, this advice clearly states that:

• there is no necessary constitutional objection to including economic and social rights in any federal Human Rights Act;
• economic and social rights are no more broadly expressed than civil and political rights, which are capable of being interpreted and applied in the exercise of federal judicial power;
• decisions about social and economic rights may have implications for the allocation of budgetary resources, however the same is true for all human rights; and
• it is an overstatement to say that ICESCR rights do not contain judicially manageable standards.

The opinion concludes that the real issue is whether economic and social rights can be appropriately expressed and the court’s role limited. So long as rights are framed so as to give them specific content, and the court’s role limited to a consideration of whether the government’s action was reasonable within the available resources (as under the South African constitution), social and economic rights are capable of being protected and promoted in Australian law.

In light of the the findings of the Consultation as to the importance of ESC rights, Australia’s international obligations as to the interdependent protection and promotion of all rights, and the attached advice as to the constitutional justiciability of ESC rights, it is imperative that an Australian Human Rights Act enshrine all civil, political, economic, social and cultural rights and that such rights be justiciable and enforceable. 

The report also recommends a range of other measures to protect human rights in Australia, including strengthening the Australian Human Rights Commission, enhancing human rights education, improving parliamentary scrutiny of human rights, improving access to justice and addressing Indigenous disadvantage and exclusion.

The Government has announced that it will respond to the report in December 2009.  For people concerned with improved protection of human rights in Australia, the time to act is now!

Act Now for a Human Rights Act: What can you do? 

You can be part of the campaign for a Human Rights Act by writing or emailing to your local MP or to the Prime Minister and the Attorney-General. 

In preparing a letter, you may find the following materials helpful:

• Briefing Paper on a Human Rights Act for Australia - this Briefing Paper was sent by the HRLRC to key Ministers and MPs
• Letter to MPs and Senators on a Human Rights Act - this letter was sent by the HRLRC to all federal MPs and Senators
• Briefing Paper on the Benefits of a Human Rights Act for Australian Foreign Policy and Relations - this paper was sent by the HRLRC to DFAT and the Foreign Minister

 In writing your email or letter, don’t assume that your MP has any knowledge about the consultation or the report.  Here are some tips about what you might include in a letter:

• Tell your MP about the massive participation by Australians in the Consultation and that the report recommended the adoption of a Human Rights Act.
• Most importantly tell your MP about your story, why human rights matter to you. Is it because of a breach of your human rights or someone close to you? Or do you know about human rights problems through your work or community?
• Tell them why action needs to be taken NOW – tell how the human rights issue you experience persists in some form.

Tell your MP to support a Human Rights Act as a means of addressing these issues, and creating a human rights culture in Australia. 

About the National Human Rights Consultation and the Report:

The National Human Rights Consultation was announced by the Commonwealth Attorney-General, the Hon Robert McClelland MP, on 10 December 2008, the 60^th anniversary of the Universal Declaration of Human Rights.  The Consultation was conducted by an independent committee, comprising Father Frank Brennan (Chairperson), Mary Kostakidis, Mick Palmer, Tammy Williams and Philip Flood.

The Report of the National Human Rights Consultation was released following one of the most extensive exercises in participatory democracy in Australian political history.  The independent Consultation Committee received over 35,000 submissions and hosted 66 roundtables in 52 locations throughout metropolitan, regional and rural Australia.  Over 80 per cent of the submissions (almost 28,000) called for the enactment of an Australian Human Rights Act. 

The Committee found that, ‘after 10 months of listening to the people of Australia, [there is] no doubt that the protection and promotion of human rights is a matter of national importance.’ 

Key Findings:

The Committee made the following key findings which must be carefully considered in responding to the recommendations contained in the report:

• Human rights matter deeply to Australians.  They resonate with Australian democratic values, the rule of law and our sense of a fair go.  There is strong support for the promotion and protection of all human rights, including economic, social and cultural rights (p 96).  ‘For most Australians, the main concern is the realisation of economic and social rights such as the rights to education, housing and the highest attainable standard of health’ (p 365). 
• While Australia has strong democratic and legal institutions, they do not provide comprehensive or even adequate protection of human rights.  The patchwork quilt of human rights protection is missing pieces and this is felt most keenly by the marginalised and vulnerable (p 127-128).
• Human rights are not enjoyed fully or equally by all Australians.  Both in fact and in law, many groups within Australia experience profound disadvantage, including the homeless, people with mental illness, Aboriginal Australians, asylum seekers and children with disability.  There is a strong view that ‘we could do better in guaranteeing fairness for all within Australia and in protecting the dignity of people who miss out’ (p 343-344).  Positive legislative and institutional action to promote human rights has widespread public support. 
• There is a need for better education about human rights within the community (p 149-151).
• There is a need for a better understanding of and commitment to human rights within government and greater consideration of human rights in the development of legislation and policy (p 149-151, 175, 355-356).  Instilling a human rights culture in the federal public sector is integral to better protect and promote human rights in Australia (p 186).
• There is strong support for strengthening and expanding the powers, functions and resources of the Australian Human Rights Commission (p 195).
• There is very strong support for a Human Rights Act.  87.4 per cent of submissions to the Committee which considered the issue supported the enactment of a Human Rights Act. 

Key Recommendations:

Consistently with these findings, the Committee recommends that Australia adopt a comprehensive Human Rights Act with the following key features:

• The Act should promote a dialogue about human rights between parliament, the executive, the courts and the community. 
• The Act should only recognise and protect the human rights of human beings.  Its protection should extend to all people within Australia, as well as all people who are overseas but subject to Australian jurisdiction. 
• The Act should enshrine civil and political rights and possibly social and economic rights, particularly the right to adequate housing, the right to health and the right to education. 
• The Act should recognise and provide that certain rights are absolute and non-derogable, including the right to life, the right to a fair hearing and the right to protection from cruel, inhuman or degrading treatment.  All other human rights would be subject to a general limitations clause, which permits such reasonable limits as can be demonstrably justified in a free and democratic society, taking into account relevant factors.
• The Act should establish robust pre-legislative human rights scrutiny mechanisms.  New bills introduced into parliament should include a statement as to their ‘human rights compliance’ and a Joint Committee on Human Rights should review the human rights compatibility of all bills. 
• The Act should bind ‘federal public authorities’, including federal Ministers, bodies created by federal laws and undertaking public functions, and private entities that perform public functions on behalf of federal public authorities. 
• The Act should require that federal authorities act compatibly with rights (other than economic and social rights) and give proper consideration to human rights (including economic and social rights) in decision making. 
• The Act should require courts to interpret all federal law compatibly with human rights so far as is possible consistent with statutory purpose, but not empower courts to invalidate legislation. 
• Where it is not possible for legislation to be given a human rights-consistent interpretation, the High Court be given the exclusive power to make a declaration of incompatibility.  Such a declaration would not affect the validity of the legislation but would require that parliament reconsider that legislation within a specified period.  The decision as to whether to amend, repeal or leave the legislation untouched would be entirely a matter for parliament. 
• The Act should provide people with effective remedies where their human rights are breached.  In the case of civil and political rights, an individual would be able to institute an independent cause of action against a federal public authority, with the usual suite of remedies available, including damages.  The Committee recommends that breaches of economic, social and cultural rights not be justiciable, but that the Australian Human Rights Commission be given a mandate to hear complaints in relation to those rights. 

Further key recommendations in the Committee’s 450 page report include that:

• the Federal Government develop a national plan of comprehensive human rights education and that ‘education be the highest priority for improving and promoting human rights in Australia’;
• the Federal Government audit all legislation, policies and practices to ensure human rights compliance;
• Federal Parliament establish a Joint Committee on Human Rights to review all legislation for compliance with human rights (whether or not a Human Rights Act is adopted);
• the Administrative Decisions Judicial Review Act 1975 (Cth) be amended to provide that human rights are a relevant consideration in administrative decision-making;
• the Acts Interpretation Act 1901 (Cth) be amended to require courts to interpret federal laws consistently with human rights, as much as it is possible to do so consistently with the legislation’s purpose;
• the Federal Government develop a whole-of government approach to human rights and appoint a Minister responsible for human rights;
• federal departments and agencies develop human rights action plans and report on human rights compliance in their annual reports; and
• the Australian Human Rights Commission receive a strengthened mandate and powers. 

Click here for a full list of the Committee’s recommendations. 

The Human Rights Law Resource Centre made three major submissions to the consultation: Engage, Educate, Empower in April 2009; A Human Rights Act for All Australians in May 2009; and a Supplementary Submission on Religion and Human Rights in June 2009.  These submissions, together with our collection of case studies, online materials and comprehensive discussion paper entitled Engaging in the Debate, were extensively cited and endorsed in many other submissions and the report itself.  These submissions are available at: http://www.hrlrc.org.au/our-work/focus/national-consultation/. 

Further information on the Consultation is available at http://www.humanrightsconsultation.gov.au/. 

HRLRC Media Statement:

“The level of engagement demonstrates that human rights matter deeply to Australians – they resonate with our shared values of freedom, dignity, justice and a fair go,” said Philip Lynch, Director of the Human Rights Law Resource Centre.  According to Mr Lynch, the evidence collated by the Committee also demonstrates that human rights are not enjoyed fully or equally by all Australians.  “Both in fact and in law, many groups within Australia experience profound disadvantage, including the homeless, people with mental illness, Aboriginal Australians, asylum seekers and children with disability,” said Mr Lynch.  “The Federal Government’s response to the Committee’s report represents an historic opportunity to improve the lives not only of these vulnerable groups, but the quality of Australian democracy for all.”

The National Human Rights Consultation report makes a range of recommendations to better protect and promote human rights in Australia, including the enactment of a federal Human Rights Act.  Over 80 per cent of submissions supported a Human Rights Act.  “An Australian Human Rights Act could promote more responsive and accountable government, improve public services and address disadvantage,” said Mr Lynch.  “Like the Victorian Charter of Human Rights and the ACT Human Rights Act, it could ensure that human rights are taken into account by parliament, the courts and public services when developing and applying law and policy”. 

Welcoming the report’s recommendations, Mr Lynch said that, “The Rudd Government’s response to this report represents an historic opportunity to honour its commitment to the protection and promotion of human rights.”  “Australians have spoken loudly and clearly on the need for a Human Rights Act.  Now is the time for the Rudd Government to show political leadership and vision.  This report creates an opportunity – and responsibility – to promote human rights, dignity and diversity as being as central to Australian culture and identity as beaches, boomerangs, the Anzac spirit and the Ashes.” 

HRLRC Opinion Piece:

An opinion piece on the National Human Rights Consultation and the promotion and protection of human rights in Australia, published on the eve of the report’s release, is available here.

The Centre has also made a separate submission to the Consultation, entitled Engage, Educate, Empower, which considers a range of measures and initiatives to strengthen and complement the protection that would be afforded by a Human Rights Act.

Below is a brief summary of the submission on A Human Rights Act for All Australians.

Which human rights should be protected and promoted?

All of Australia’s human rights obligations under international human rights law should be incorporated and protected under Australia’s domestic law.

Comprehensive protection of civil, political, economic, social and cultural rights is vital because human rights are interdependent, indivisible and mutually reinforcing. Piecemeal recognition of human rights in inconsistent with basic human rights principles and threatens their effective implementation. Effective protection of all rights is necessary to ensure the conditions necessary for all people to live with dignity and participate fully and equally in the community.

Are these rights currently sufficiently promoted and protected ?

The state of human rights for many disadvantaged groups in Australia remains vulnerable.  Human rights are not given comprehensive and consistent legal protection in Australia. There is currently no comprehensive statement of rights in Australia that operates as a minimum standard for the protection of human rights. Many basic rights remain unprotected and others are haphazardly covered by an assortment of laws. There are numerous examples of violations that fall through the gaps in the current regime.

How could Australia better protect rights?

The Commonwealth Parliament should enact a Human Rights Act

A Human Rights Act would ensure that the human rights of all persons in Australia are protected. In addition to enshrining peoples’ rights in law and providing redress for the existing gaps in human rights protection, a Human Rights Act would provide important social, economic and cultural benefits, including:

• improving law-making and government policy;
• improving public service delivery and outcomes;
• protecting marginalised Australians by addressing disadvantage;
• contributing towards the establishment of a human rights culture;
• creating and adding economic value;
• more fully implementing Australia’s international obligations;
• promoting Australia’s reputation as a good international citizen and regional and global human rights leader; and
• ‘bringing rights home’ by enabling complaints to be heard and determined domestically rather than requiring that complaints be heard in New York or Geneva.

Whose rights should be protected?

Human Rights Act should protect all human persons in Australian territory and subject to its jurisdiction. It should not protect corporations.

What would a Human Rights Act look like?

A Human Rights Act should be an Act of the Commonwealth parliament, aimed at establishing a dialogue between the three arms of government about human rights. This is referred to as a legislative/dialogical model.

A Human Rights Act should protect all the rights derived from the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Recognising that a balance is required between protecting individual rights on the one hand and collective community values on the other, a Human Rights Act should specify which rights are absolute and which can be limited.

Under a Human Rights Act, the parliament, public authorities and the courts would all have obligations to protect and respect human rights.

A Human Rights Act would retain parliamentary sovereignty.

Parliament would be affected in the following ways:

• a Statement of Compatibility would need to be tabled by any parliamentarian introducing a new Bill, describing whether and how the Bill is compatible with human rights;
• a specialist Joint Committee on Human Rights should be established to, among other things, scrutinise all Bills for compatibility with protected rights; and
• if the courts made a Declaration of Incompatibility (discussed below), the responsible Minister would prepare a written response for parliament.

Public authorities would be affected in the following ways:

• all Commonwealth and state public authorities should be bound, including where they are acting outside of Australia. This should include government departments, statutory authorities, police, and local government. It should also extend to all persons or bodies that perform public functions on behalf of the Commonwealth, when they are performing those public functions; and
• all public authorities would be required to:
  • act compatibly with human rights (a substantive obligation); and
  • give proper consideration to human rights when making decisions and implementing legislation (a procedural obligation).

Courts would be required to:

• interpret all Commonwealth legislation in a manner compatible with human rights;
• have regard to international and comparative human rights jurisprudence when interpreting and applying laws that impact on human rights; and
• issue a Declaration of Incompatibility where it is not possible for a law to be interpreted consistently with human rights. Courts would not be able to invalidate laws passed by parliament that breach human rights.

A Human Rights Act should establish a free-standing cause of action. However, any application for a Declaration of Incompatibility should be required to be brought with another cause of action to minimise the chances of it being considered to be a request for an advisory opinion of the court.

A full range of judicial and non-judicial remedies should be available for breaches of all civil, political, economic, social and cultural rights, including all such remedies as are just and appropriate.

The submission is in the form of a Memorandum of Advice from Brian Walters SC and Alastair Pound of Counsel commissioned by the Centre in relation to the relationship between a national Human Rights Act and a range of religious beliefs and freedoms.

The Advice considers, among other matters:

• Would a federal charter of rights result in a transfer of political power to the courts?
• What are the potential cultural impacts of a federal charter of rights?
• What impact might a federal charter of rights have on freedom of religious speech and expression?
• What impact might the recognition of a right to life in a federal charter of rights have on issues such as abortion and euthanasia?
• What impact might the recognition of a right to equality and protection from discrimination in a federal charter of rights have on the ability of religious bodies to discriminate on the basis of religion?

These submissions include:

• Amnesty International Australia;
• Anglican Church of Australia, General Synod;
• ;Australian Centre for Human Rights Education at RMIT;
• Australian Human Rights Commission at http://www.humanrights.gov.au/legal/submissions/2009/200906_NHRC.html;
• Australian Human Rights Group at http://www.humanrightsact.com.au/ahrg/;
• Australian Lawyers Alliance;
• Australian Lawyers for Human Rights;
• Australian Lawyers for Human Rights, International Section;
• Australian Network of Environment Defenders Officers;
• Castan Centre for Human Rights Law at http://www.law.monash.edu.au/castancentre/publications/bill-of-rights.pdf;
• Federation of Community Legal Centres (Vic);
• Human Rights Act for Australia Campaign at www.humanrightsact.com.au;
• Human Rights Council of Australia;
• Human Rights Law Resource Centre at http://www.hrlrc.org.au/our-work/focus/national-consultation/;
• Law Council of Australia at www.lawcouncil.asn.au/initiatives/bill-of-rights.cfm;
• Law Institute of Victoria;
• Law Society of New South Wales at http://www.lawsociety.com.au/idc/groups/public/documents/internetpolicysubmissions/023675.pdf;
• Liberty Victoria;
• Mallesons Stephen Jaques Human Rights Law Group;
• Merkel QC, Ron and Pound, Alastair;
• PILCH Homeless Persons’ Legal Clinic and Annexure of Homeless Persons’ Views;
• Public Interest Advocacy Centre;
• Public Interest Law Clearing House (Vic);
• Santow, Edward, Director of the Charter of Human Rights Project at the Gilbert + Tobin Centre of Public Law, UNSW, at www.gtcentre.unsw.edu.au/news/docs/NHRC_Submission.pdf;
• SCALES Community Legal Centre;
• Uniting Church in Australia;
• University of Oxford Pro Bono Publico;
• UN Office of the High Commissioner for Human Rights;
• UN Special Representative on Business and Human Rights, Professor John Ruggie;
• Victorian Bar at http://www.vicbar.com.au/GetFile.ashx?file=BarCouncilSubmissionFiles%2fNational+HR+Consultation+Bar+Submission+-+Final+25May2009.pdf;
• Victorian Equal Opportunity and Human Rights Commission;
• Victorian Government;
• Williams, George, Foundation Director of the Gilbert + Tobin Centre of Public Law, UNSW, at www.gtcentre.unsw.edu.au/News/docs/2009_Charter.pdf; and
• Zifcak, Spencer and King, Alison at www.australiancollaboration.com.au/booksreports/Wrongs_Rights_Remedies.pdf.