Pearls and Irritations

Parliament’s Joint Committee on Human Rights has tabled a report that makes a persuasive argument for comprehensive legislation to protect Australians’ fundamental human rights. Its Inquiry into Australia’s Human Rights Framework (2024) identifies a catalogue of deficiencies in the nation’s disaggregated systems of human rights protection. The report provides a new and compelling case for Parliament to revisit the idea that Australia should join every other Western nation in providing comprehensive legal protection to combat the widespread infringement of human rights.

The Joint Committee acknowledges the work undertaken by the National Human Rights Consultation Committee in 2009. That Committee made sweeping recommendations for changes to the nation’s systems of protection. Central to its report was its recommendation that the Australian parliament should legislate to establish a statutory charter of human rights. The Joint Committee notes ruefully that the protective framework recommended by the National Consultation, including the recommendation that human rights should be provided with legal protection, is now largely non-existent.

In the current Joint Parliamentary Committee report, the case for change is argued strongly and persuasively. It concludes that for those whose rights are not protected in practice, the lack of a comprehensive and enforceable federal human rights framework is striking. ‘There are significant human rights problems that must be addressed ranging from our relationship with Aboriginal and Torres Strait Islander peoples, protection of privacy in the digital age and the treatment of many and various minority groups’.

The Committee stated that since the National Consultation, there had been multiple examples of the failure of federal institutions to adequately consider citizens’ human rights, notably illustrated by royal commissions into Robodebt; the violence, abuse, neglect and exploitation of people with disability; and aged care quality and safety. Covid 19 had also exposed failures by governments to reference and act upon significant incursions upon important human rights. Freedom of expression, freedom of assembly and freedom of movement had each been significantly curtailed.

The Committee focused its attention particularly on the situation of Indigenous people. In this area its concerns ranged from such matters as self-determination, to housing and criminal justice. It endorsed the view that there is no other group in Australian society that is a greater litmus test of the place of human rights protection in Australian history than Indigenous Australians. It also highlighted the incomplete and piecemeal application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Australian law.

Unsurprisingly the Committee drew attention to Australia’s policies of offshore processing in third countries and immigration detention as key examples of punitive, arbitrary and abusive infringements of international human rights law. Extensive evidence was provided that Australia’s laws and policies breached the International Refugee Convention, including by infringing the prohibition of non-refoulement. It reiterated the view of ‘Refugee Legal’ that the practice of indefinite detention had been foundational in normalising a rights-violating culture in Australia which had, in turn, enabled policies which systematically perpetrated other serious violations and caused large-scale harm.

The Committee referred to the recent findings from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability to highlight the inadequacies of existing human rights mechanisms federally in providing protections towards people with disability. The Australian Federation of Disability Organisations submitted that people with disability are over-represented in places of detention and experience higher rates of violence, ill-treatment and torture. ‘DeafBlind Australia’ submitted that currently any attempts to rectify observed violations of the rights of DeafBlind people fail because there is no law to compel action by those infringing upon individual rights.

The neglect of children’s rights was cited as a serious area of concern. Despite Australia’s accession to the International Convention on the Rights of the Child, children’s rights remain inadequately protected. In particular, concerns were raised before the Committee regarding the rate of imprisonment of children. The Australian Lawyers Alliance described the imprisonment of children as a ‘national crisis’. Aboriginal and Torres Strait Islander children are significantly more likely to have contact with the youth justice system and to be held in detention. This is to say nothing of the appalling treatment that children and young people experience while in out-of-home care and youth detention.

It is often said by those who oppose a Human Rights Act that there is no need for one. The human rights of Australians are more than adequately protected by the common law and statute. Anyone still holding that view will be hard pressed to retain it should they read the recent, comprehensive report on the subject prepared by the Australian Law Reform Commission. The report is entitled ‘Traditional Rights and Freedoms: Encroachments by Commonwealth Law.

The report identifies hundreds of provisions in Commonwealth law that may constitute incursions on human rights and freedoms. The nature and extent of the legislative provisions that may be in breach of fundamental rights and freedoms will come as a shock to anyone who cares to delve into the ALRC’s first class report. No report in recent decades has come close to providing such a detailed enumeration, description and analysis of statutory infringements of human rights. Take freedom of speech and procedural fairness as examples.

Commonwealth laws that may prohibit or restrict freedom of speech have been identified in criminal laws, national security laws, secrecy laws, contempt laws, media and telecommunications laws, intellectual property laws, information privacy laws and anti-discrimination laws.

Not all of these laws will be unjustified but, equally, the ALRC has distinguished many that are likely to be. These include provisions in the Crimes Act, Aboriginal and Torres Strait Islander Act, Aged Care Act, Anti-Money Laundering and Counter-Terrorism Financing Act, Australian Securities and Investments Commission Act, the Australian Intelligence Organisations Act and the recent Australian Border Force Act.

Statutory encroachment upon the right to procedural fairness constitutes another hugely important class of potential rights violations. Procedural fairness is the entitlement that every person whose rights are adversely affected by a government decision has to contest the decision before an independent and impartial court or tribunal.

Procedural fairness has not infrequently been denied in the spheres of corporate and commercial regulation, national security legislation and migration law. In recent years, there has been tidal wave of denials of procedural fairness in the latter category.

There are four key areas of concern in relation to migration. These relate to the mandatory cancellation of visas (on character, security grounds or other grounds); the ‘fast-track’ process for assessing applications for refugee status; changes to the Maritime Powers Act (the legislation which authorises boat turn-backs); and ASIO assessments in relation to refugees and non-citizens. In each, many former rights to procedural fairness have been swept away.

The ALRC has done remarkable work in identifying a plenitude of similar instances. It is readily apparent from that work that Australia’s protection of traditional rights and freedoms can at best be characterized as piecemeal and haphazard. Given the numerous examples of statutory infringements of rights and freedoms that have been identified, it is clearly time seriously to consider the most comprehensive and sensible solution to this mishmash: that is, the parliamentary enactment of an Australian Human Rights Act.

The primary purpose of the Human Rights Act will be to test the compliance of draft federal legislation with the human rights set down in the Act. Ministers introducing legislation will, as now, be required to provide statements of legislation’s compatibility with human rights to the parliament. Statements of compatibility and their related legislation will be referred to the Parliamentary Joint Committee on Human Rights for review.

Where the Committee believes that legislation is incompatible with human rights the matter will be returned to the relevant minister to decide whether or not provisions in draft legislation should proceed or be amended.

If there is a dispute between the minister and the committee, or an individual who believes their human rights have been transgressed, the matter may be referred to the courts for definitive legal opinion. Upon receipt of the court’s opinion, the government will make a final, fully informed determination.

Government accountability whether to the parliament, the courts, or to individual citizens, has been substantially weakened in the past two decades. An Australian Human Rights Act will make a substantial difference in this crucial area of governmental action by strengthening accountability, informing the Australian people of their fundamental human rights, and providing them with appropriate avenues of redress.

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