On 15 May 2009, the Human Rights Law Resource Centre made a submission to the National Human Rights Consultation entitled, A Human Rights Act for All Australians [PDF] [Word]. The submission calls for the enactment of a comprehensive Human Rights Act to enhance our democracy and protect fundamental values such as freedom, respect, dignity and a fair go.
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.
