On 28 July 2010, the HRLRC made a Submission to the APSC setting out the reasons for which the APS Values and Code of Conduct should be revised to require that the APS ‘actively respects, protects, promotes and fulfils human rights’, and the other educational and cultural measures and strategies that would support the entrenchment and realization of this value. 

In summary, the Human Rights Law Resource Centre recommends that:

• the APS Values and Code of Conduct should be revised to require that the APS ‘actively respects, protects, promotes and fulfils human rights’;
• for the purpose of the APS Values and Code of Conduct, ‘human rights’ should be defined to include all of the human rights and freedoms enshrined in all of the core international human rights treaties to which Australia is or may become a party;
• the scope, content and application of ‘human rights’ within the APS Values should be understood and informed by reference to ‘international human rights law and the judgments of domestic, foreign and international human rights courts, bodies and tribunals’;
• the revision of any APS Values to incorporate consideration of human rights should be accompanied by a comprehensive, integrated, well-resourced, targeted and ongoing human rights education program for the APS and related entities;
• federal departments and agencies should develop human rights action plans and report on human rights compliance in their annual reports; and
• the APS should develop a range of other mechanisms and measures, such as those adopted by public authorities in Victoria and identified by the Victorian Equal Opportunity and Human Rights Commission as being useful and effective in the development and entrenchment of a human rights-based approach to public service. 

On the international stage, Australia has a proud bipartisan history in the development of human rights laws and institutions.  At home, the recent National Human Rights Consultation demonstrated that human rights matter deeply to Australians.  Human rights principles resonate with Australian democratic values, including the rule of law and our sense of a fair go. 

The Consultation also demonstrated, however, that our framework of laws and institutions does not provide comprehensive protection of rights, particularly for vulnerable or disadvantaged groups.  The Consultation disclosed a strong majority view that ‘we could do better in guaranteeing fairness for all within Australia and in protecting the dignity of people who miss out’.

On 21 July 2010, the Human Rights Law Resource Centre released Human Rights 2010 – 10 Policies for a Fairer Australia.   Human Rights 2010 briefly sets out ten policies to which the next Federal Government should commit for a fairer Australia.  Together, the policies would promote human dignity, address disadvantage, enhance good government, and strengthen accountability. 

As the Federal Government prepares its response to the report of the Joint Parliamentary Committee on Foreign Affairs, Defence and Trade, ‘Human Rights and the Asia-Pacific: Opportunities and Challenges’, this policy brief on ‘Human Rights in the Asia-Pacific: Australia’s Role and Responsibilities’ contends that Australia should develop a comprehensive policy on human rights in the region.  The brief makes 21 concrete recommendations for action in the following areas:

• Human Rights as a Key Instrument and Aim of Australian Engagement in the Region
• Adopting a Human Rights-Based Approach to Aid and Development Assistance
• Adopting a Human Rights-Based Approach to Military and Security Cooperation
• Empowering Communities and Supporting NGOs
• Human Rights Treaty Ratification and Implementation
• Strengthening Human Rights Institutions
• Enhancing Parliamentary Engagement with Human Rights
• Human Rights Envoys and Ambassadors

This brief is the fifth in a series of policy papers designed by the Human Rights Law Resource Centre to inform and advance the human rights agenda in Australia.  Each brief identifies a human rights problem or opportunity, discusses the imperative for action, analyses relevant evidence, and makes concrete recommendations for Australia to advance the agenda at the international and national levels. 

Policy Brief on an Agenda to Promote Equality and Address Discrimination in Australia
(24 May 2010)

The policy brief on ‘Promoting Equality and Addressing Discrimination in Australia’ identifies that the law can and should play a central normative and educational role in advancing meaningful equality for all Australians.  This requires a shift away from an outdated and ineffective complaints-based, remedial model of anti-discrimination laws.  Instead, Australian law should promote a rights-based model of substantive equality which emphasises equal outcomes and addresses structural causes of inequality.  This would contribute to a more fair, cohesive and productive society.

The brief makes 7 concrete recommendations for action, including that:

1. The Government should release an exposure draft for a single, comprehensive Equality Act which promotes and enshrines a legal right to substantive equality.
2. The federal Equality Act should include a provision mandating that, after four years of operation, an inquiry be held into a constitutional amendment aimed at enshrining the right to equality.
3. The Federal Government should require public bodies to consider equality in policy development, spending and service delivery. 
4. The Federal Government, its agencies and public authorities should use public procurement to promote equality and assess suppliers on the progress that they are making in reducing inequality.
5. The Federal Government should show political leadership and support for the equality agenda by appointing a Minister for Human Rights and Equality who should hold a seat in cabinet.
6. All public bodies should produce and publish annual equality reports. 
7. The Australian Human Rights Commission Act should be amended to provide that all Commissioners are to submit a report, to be tabled in Parliament, regarding the status of human rights in Australia within their areas of responsibility and containing concrete recommendations to enhance human rights in these areas.  Further, the Commission should be adequately resourced to discharge this function. 

Policy Brief on Protecting Privacy while Responding to Terrorism
(3 May 2010)

The policy brief on ‘Protecting Privacy whilst Responding to Terrorism’ contends that the Australian Government should become a world leader in protecting the rights of its people to be safe from both terrorism and from undue interference with privacy.  Governments have a duty to protect the rights, lives and safety of people within their territory from legitimate threats of terrorist attacks.  However, protecting the community from terrorism and protecting human rights are not mutually exclusive.

The brief sets out the steps for the Australian Government to take to implement the approach to privacy protection recommended by the UN Special Rapporteur on Human Rights and Counter-Terrorism.  In particular it sets out important steps to be taken domestically, in both law and policy, and also opportunities to lead international developments such as a global declaration on data protection.

Policy Brief on Foreign Policy and Human Rights
(6 April 2010)

The policy brief on ‘Foreign Policy and Human Rights’ contends that human rights should be both a key goal and a key instrument of Australian foreign policy.  It sets out that, despite identifying ourselves as a ‘principled advocate of human rights for all’, and demonstrating significant commitment to human rights in practice, Australia has not developed a comprehensive, consistent and coherent policy on human rights and foreign affairs.  Such a policy could integrate human rights in all areas of Australian foreign affairs and capitalise on the benefits of doing so.

The brief maintains that Australia’s approach to human rights and foreign policy should be progressive, principled and persistent.  It sets out 14 concrete recommendations for action at the international, regional and domestic levels under the headings of:

• a principled approach to universal human rights and accountability;
• multilateralism and engagement with the United Nations; and
• empowering communities and supporting NGOs.

Policy Brief on Business and Human Rights
(22 March 2010)

The policy brief on ‘Business and Human Rights’ contends that the further development and operationalisation of the business and human rights agenda presents a significant opportunity and responsibility for Australia, both at the international and domestic levels.  It contains 15 recommendations for Australian action at the international and local levels.

The brief makes 6 concrete recommendations for Australian action at the international level, including explicitly adopting the Special Representative’s framework as a basis for Australia’s approach to corporate human rights law and policy, and conducting conduct human rights impact assessments of proposed multilateral and bilateral trade and investment agreements, together with major public-private projects. 

The brief makes 8 recommendations for Australian action at the local level, including using public procurement to reinforce the responsibility of business to respect human rights and to promote socially and environmentally responsible governance, and amending the Corporations Act 2001 to require (or at the very least explicitly permit) directors to consider human rights issues as an aspect of their duty to act in the best interests of the company. 

The Framework commits Australia to help Pacific countries strengthen the rule of law and protect human rights.  It states that ‘[t]he performance of the law and justice system is critical to the preservation of fundamental human rights, promotion of the rule of law and access to justice, particularly for the poor and vulnerable.  Without development in this area, achievement of the MDGs will be beyond reach’

The Framework emphasizes the importance of building partnerships with Pacific government and non-government agencies and building local capacity.  It details specific commitments in areas including transnational crimes, gender equality and violence against women, public administration and access to justice. 

The Human Rights Law Resource Centre provided comments on a draft of the Framework which were subsequently incorporated in the final document.  The Centre’s comments discussed ways in which the protection and promotion of human rights contribute to positive security, governance and development outcomes and recommended that the human rights framework play a central role in Australia’s law and justice engagement with the Pacific.  

The Framework for Law and Justice in the Pacific is available at www.ag.gov.au/pacificframework.

The Victorian Government needs to establish an Independent Body which is hierarchically, institutionally and practically independent of the organisation being investigated, both in theory and in practice.

The Independent Body must be adequately empowered and resourced to, where necessary, conduct the primary investigation of the death, in place of the investigative role currently undertaken by the Homicide Squad.  Investigations must be placed in the hands of the Independent Body as soon as practicable, ideally within one hour of a death associated with police contact.  

Investigations must be conducted with genuine independence.  This should involve procedural safeguards, such as separating police officers until they are interviewed by the Independent Body.  It is important that police officers (either witnesses or suspects) are interviewed as soon as practicable, preferably within 24 hours after the incident, unless there are exceptional and justifiable circumstances.  Interviews must be recorded electronically.  Police officers involved in the relevant event should be required to cooperate with the investigation and provide all relevant accounts and documents regarding the event. 

Finally, independent review mechanisms must be established to permit public scrutiny of investigations and their results.  Specifically, the victim and/or next-of-kin must have an enforceable right to be involved in the investigation to the extent necessary to safeguard their legitimate interests.

The Human Rights Law Resource Centre welcomes these Bills and supports their expeditious passage.  On 9 June 2010, the Centre made a submission to the Committee entitled Parliamentary Scrutiny and the Promotion and Protection of Human Rights. 

The Human Rights (Parliamentary Scrutiny) Bill 2010 establishes a Joint Parliamentary Committee on Human Rights, to be comprised of five members of the House of Representatives and five Senators, with two primary functions:

1. first, to ‘examine’ Bills, legislative instruments and existing Acts ‘for compatibility with human rights and to report to both Houses of Parliament on that issue’; and
2. second, to ‘inquire into any matter relating to human rights which is referred to it by the Attorney-General, and to report to both Houses of Parliament on that matter’.

The Bill also introduces a requirement that each new Bill introduced to parliament be accompanied by a Statement of Compatibility which includes an ‘assessment of whether the Bill is compatible with human rights’  This requirement also extends to certain legislative instruments

For the purposes of both the Joint Committee and Statements of Compatibility, ‘human rights’ means those human rights and fundamental freedoms contained in the seven core international human rights treaties to which Australia is party.

In introducing the legislation, the Attorney-General stated the purpose of the measures is to ‘improve parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development’.

The submission considers the features which each of the measures should possess in order to best fulfil this purpose. 

The Bill establishes a Joint Parliamentary Committee on Human Rights, to be comprised of five members of the House of Representatives and five Senators, with two primary functions:

• first, to examine Bills, legislative instruments and existing Acts ‘for compatibility with human rights and to report to both Houses of Parliament on that issue’; and
• second, to inquire into ‘any matter relating to human rights which is referred to it by the Attorney-General, and to report to both Houses of Parliament on that matter’.

The Bill also introduces a requirement that each new Bill introduced to parliament be accompanied by a Statement of Compatibility which includes an ‘assessment of whether the Bill is compatible with human rights’. 

For the purposes of both the Joint Committee and Statements of Compatibility, ‘human rights’ means those human rights and fundamental freedoms contained in the seven core international human rights treaties to which Australia is party. 

The legislation gives effect to the finding of the National Human Rights Consultation Committee that:

Greater consideration of human rights is needed in the development of legislation and policy and in the parliamentary process in general.  The primary aim of such consideration is to ensure that human rights concerns are identified early, so that policy and legislation can be developed in ways that do not impinge on human rights or, in circumstances where limitations on rights are necessary, those limitations can be justified to parliament and the community. 

Consistent with this finding, in introducing the legislation, the Attorney-General stated the purpose of the measures is to ‘improve parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development’.  In order to fulfil this purpose, the measures should exhibit the following features. 

Joint Parliamentary Committee on Human Rights

The powers, proceedings and modalities of the Committee are to be ‘determined by resolution of both Houses of Parliament’.  In the view of the HRLRC, in determining the Committee’s powers and working methods, Parliament should have regard to the following considerations. 

First, the Committee should be given broad and permissive powers.  The broad mandate and modalities of the UK Joint Committee on Human Rights, recommended by the Council of Europe as an example of best practice in parliamentary human rights scrutiny, is one of its key strengths.

Second, the Committee should ‘screen’ all Bills that come before parliament, but, as with the UK Committee, focus its inquiries and reports on those Bills which raise prima facie human rights concerns (including those Bills or types of laws which have been identified as doing so by UN human rights bodies, the Australian Human Rights Commission and reputable human rights NGOs).  This will ensure that the work of the Committee is appropriately targeted.

Third, in assessing and reporting on the human rights compatibility of legislation, the Committee should consider Statements of Compatibility (together with other extrinsic materials), but should conduct its own independent analysis to ensure effective scrutiny of Bills.  It should also consider relevant international and foreign human rights jurisprudence. 

Fourth, the Committee must have the power to call for submissions, convene public hearings and examine witnesses. 

Fifth, the Committee must be given sufficient time to conduct inquiries and produce reports so as to actually inform parliamentary debate in a meaningful way.

Sixth, it is critical that the Committee have an adequately resourced secretariat with the requisite human rights law experience and expertise.

Seventh, the Committee should play a role in giving effect to the Government’s commitment to a ‘review of legislation, policies and practices for compliance with the seven core UN human rights treaties’.  In order to do this, it should be able to make recommendations and requests to the Attorney-General as to those matters which are referred to it for inquiry. 

Statements of Compatibility

While the Human Rights (Parliamentary Scrutiny) Bill 2010 specifies that Statements should include an ‘assessment’ as to the compatibility of a proposed Bill with the human rights in all seven core UN human rights treaties to which Australia is party, it is silent on the nature, scope and detail of this assessment.  If, however, Statements of Compatibility are to fulfil their purpose of ‘improving parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development’, they should have the following features. 

First, human rights should be considered, and Statements of Compatibility prepared, early in the policy development process.  As the Australian Human Rights Commission has stated, ‘to be truly useful, these statements must assist policy and legislative development from the outset, rather than being treated as an administrative requirement that is simply added on at the end stage of preparing a Bill.’

Second, Statements must be reasoned and include discussion and rigorous analysis of the human rights issues raised by a Bill.  The Attorney-General’s media release accompanying the Bill contained useful guidance in this regard, stating that Statements should ‘assist in explaining the purpose and intent of legislation, to contextualise human rights considerations, and where appropriate, justify restrictions or limitations on rights in the interests of other individuals or society more generally’. 

Third, Statements should not be too long, legalistic or technical as this will detract from their utility in informing parliamentary dialogue about rights.  Keeping Statements of Compatibility succinct but adequately reasoned will be a particular challenge given that the compatibility analysis is to take account of the seven core human rights treaties, rather than, say, just civil and political rights as is the case under the Victorian Charter and the ACT Human Rights Act.  The best way to achieve this may be to confine the discussion to those rights which are actually limited by a Bill or a provision thereof, rather than to include a discussion of all those rights which are merely engaged by the proposed legislation. 

Fourth, Statements of Compatibility should consider and, where appropriate, explain limitations in a rigorous and evidence-based manner which demonstrably justifies the intrusion on rights.  This will be a challenge because the seven core human rights treaties do not include a general limitations clause unlike, say, s 7 of the Victorian Charter of Human Rights and Responsibilities or s 1 of the Canadian Charter of Rights and Freedoms.  The best approach as a matter of practice may be for Statements to set out (a) whether and how a Bill limits human rights and (b) where human rights are limited, whether and how such limitations are ‘reasonable limits under law which can be demonstrably justified in a free and democratic society’.  This formulation is very similar to that contained in s 1 of the Canadian Charter which requires that any impairment of rights (a) be for a ‘pressing and substantial’ purpose; (b) be proportionate and rationally connected to the purpose; and (c) impair human rights as little as possible (see R v Oakes [1986] 1 SCR 103). 

Fifth, given the extensive international and comparative human rights jurisprudence from which Australia can draw, it would be useful for guidelines on the preparation of Statements to specify that, in considering the scope and content of the seven core human rights treaties, ‘proper consideration be given to international human rights law and the judgments of domestic, foreign and international human rights courts, bodies and tribunals’.  Section 32(2) of the Victorian Charter contains a similar formulation.

Finally, to have the greatest impact and accessibility, Statements of Compatibility should be tabled with the Second Reading Speech of a Bill and also included in Hansard.  This will ensure that they meaningfully inform parliamentary dialogue and debate. 

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

In its letter, the Centre recalled the recent recommendation of the Joint Standing Committee on Foreign Affairs, Defence and Trade that AusAID ‘adopt a human rights-based approach to the planning and implementation of development projects’.  The Centre also drew attention to the call by the UN Special Rapporteur on Torture for ‘the international donor community to consider the protection of human rights as the highest priority’ in PNG. 

Having regard to these developments, the Centre outlined that the treaty review is a significant opportunity for Australia to enhance aid effectiveness, demonstrate leadership on human rights in the Asia-Pacific, and contribute to the realisation of human rights in PNG in practical and effective ways.  Further, the Centre called on the Australian Government to take advantage of this opportunity by explicitly committing to the promotion and protection of human rights as a primary goal and instrument of Australia’s development cooperation with PNG. 

The Centre’s submission outlines practical steps and measures, including legislative, administrative and financial measures, for the Australian Government to improve the promotion and protection of social and economic rights, including in relation to:

• the legal protection of rights;
• the mandate, functions and powers of the Australian Human Rights Commission;
• anti-discrimination legislation;
• the Northern Territory Intervention;
• Indigenous self-determination and political participation;
• gender equality;
• homelessness;
• Indigenous health, education and language and land rights;
• mandatory immigration detention; and
• human rights education in Australia. 

The detailed opinion concludes that the Australian Government’s policy is unlawful under international and Australian law.  The policy – and persons acting under the policy – are susceptible to challenge in the Federal Court of Australia and the High Court of Australia.  A complaint could also be lodged with the United Nations Human Rights Committee.