The national Human Rights Commission has released a Human Rights Act Position Paper that:
• identifies the gaps in Australia’s current framework and makes the case for a federal Human Rights Act (Chapters 2 and 3)
• outlines the Commission’s proposed model for a Human Rights Act (Chapters 4 to 12)
• considers existing parliamentary scrutiny mechanisms and improvements that can be made with the introduction of a Human Rights Act (in Chapter 13)
• focuses on the role of Commission and the enhanced contributions the Commission can make to promoting and protecting human rights in the light of a federal Human Rights Act (Chapter 14)
The Paper states
Why Australia needs a Human Rights Act
• Australia does not adequately protect human rights at the present time xx Australia has a patchwork legal framework of human rights protection. The rights that are protected are located in scattered pieces of legislation, the Constitution and the common law. It is incomplete and piecemeal. xx The Australian Constitution offers only limited protection for a small number of discrete human rights. This includes the implied right to freedom of political communication; and a prohibition on making federal laws that establish a religion, impose a religious observance or prohibit the free exercise of any religion. The High Court has rejected suggestions that other basic rights, like the right to equality, are implied by the text of the Constitution. xx The common law recognises a number of rights and freedoms. The common law protects human rights indirectly through statutory interpretation principles such as the ‘principle of legality’, which presumes that Parliament ‘does not intend to interfere with common law rights and freedoms except by clear and unequivocal language’. However, common law protections are fragile, as Parliament can pass a law that overrides them at any time. xx While Parliamentary scrutiny measures enable some consideration of human rights during the law-making process, these measures alone have not resulted in an embedded human rights culture within Parliament. Parliament routinely passes laws that are not human rights compliant. While discrimination laws implement key aspects of the international treaties Australia has ratified, they are only a partial implementation of them, with many key international rights finding no corresponding federal protections. xx Human Rights Acts have been passed in Victoria, the Australian Capital Territory and, most recently, Queensland. The lack of an overarching federal instrument means that a person’s access to rights protections is wholly contingent on where they live. xx The Commission’s ability to resolve human rights complaints can be very limited. Unlike complaints alleging unlawful discrimination, if the Commission cannot conciliate a human rights complaint, the person cannot then bring court proceedings, nor obtain any enforceable remedies. UN Treaty bodies have repeatedly concluded that core treaties have not been adequately incorporated into Australia’s legal system. Many of Australia’s commitments to human rights are confined to rhetoric without corresponding domestic protections. xx The need for a Human Rights Act can be summed up in one simple statement: people’s human rights matter all of the time. Government that is here to serve the people, should consider their impact on people whenever they make decisions.
• The current rights framework in Australia is not easily explainable, or readily comprehensible, to all people in Australia. xx The above patchwork of rights is difficult to explain to everyday Australians, whose rights are meant to be protected. Not only should the law afford appropriate protection to the people of Australia, but it should be capable of being understood by all.
• A Human Rights Act for Australia is an evolution not a revolution Human Rights Acts have been passed in three states and territories in Australia and been in operation since 2004. Throughout this paper there are references to case studies of how a Human Rights Act has made a positive difference to the protection of human rights in these jurisdictions, as well as in the multiple countries that have introduced such legislation over the past 20 years. xx The proposed model for a federal Human Rights Act builds on the success and lessons from these existing models, while also tailoring a Human Rights Act to the specific constitutional requirements of Australia. xx The proposed model for a Human Rights Act set out in this paper also seeks to build on the lessons from the Australian Human Rights Commission having administered a human rights and ILO 111 complaints handling stream under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) since 1986. There are deficiencies to how these complaint processes operate, which limit their effectiveness. In the Commission’s model for a Human Rights Act, these existing human rights complaint streams would be replaced with a much clearer set of rights in the Human Rights Act. By learning from the lessons of other models, and building on the legacy of the AHRC Act processes that have been in domestic law for 36 years, the Commission’s proposal for a Human Rights Act is an evolution not a revolution.xx
The Commission proposes, in summary,
Federal policy-makers and decision-makers
Government, administrators and public service providers would be required to consider human rights and to act in accordance with human rights when making policy or decisions that affect individual lives. They would have to consult with the people who would be directly or disproportionately affected by policies or laws, especially First Nations people, children, and people with disability.
Federal law-makers
Parliament would be required to place greater priority on the human rights impacts of all new proposed laws.
Federal courts
Courts would be required to interpret legislation, where possible, in a way that is consistent with human rights. However, courts would not have the power to strike down laws for not being compatible with human rights.
Limitations on human rights
Limitations could be placed on some human rights in certain circumstances. For example, it might be necessary to balance the right to freedom of expression with the right to privacy, or the right to access information with national security interests.
When deciding whether to pass a new law that limits human rights, Parliament would have to consider whether the proposed limitation is proportionate. For example, any limitation on individual rights would need to be reasonable and necessary to achieve an important public interest and be put in place for the shortest time possible.
Complaints
Individuals who consider that their human rights have been breached would have the option of making a complaint to the Australian Human Rights Commission. A complaint could proceed to conciliation, a facilitated process for the parties to seek a resolution on their own terms.
Access to the court for a remedy
If a complaint about human rights cannot be resolved through conciliation, then the individual would have the option of taking the complaint to the relevant federal court. The court could provide remedies such as preventing government from taking an action that would breach human rights, or ordering government to pay compensation.
