Pearls and Irritations

Parliament has the power to enshrine human rights protections in federal law. Proposals are on the table.

Australia is a human rights outlier among liberal democracies, with no national charter of human rights. Its human rights protections are piecemeal and split across a patchwork of laws, authorities and jurisdictions.

Although Australia has a strong record of protecting some civil and political rights, and has a range of anti-discrimination laws, it is routinely called out at the United Nations for failing to fully incorporate international obligations into domestic law.

International criticism of Australia has often focused on its human rights practice in relation to Indigenous peoples and asylum seekers and refugees. Restrictions introduced in response to COVID-19 also brought human rights questions to the fore within Australia.

Change may be coming

In March 2023, Attorney-General Mark Dreyfus announced an inquiry into Australia’s human rights framework, building on a groundswell of advocacy from the Australian Human Rights Commission and other organisations.

However, reform is by no means guaranteed. A 2008 inquiry also recommended the passage of a Human Rights Act, but this reform was not implemented. Instead, the government of the day added a parliamentary scrutiny process to the existing patchwork protections.

In May 2024, the Parliamentary Joint Committee on Human Rights published its report from the inquiry. The 486-page report contains extensive commentary on Australia’s current human rights framework, drawing on the 335 submissions received and information from public hearings. The focus will be on the 17 recommendations put forward by the Parliamentary Joint Committee, which are far-reaching, and, many would argue, long overdue.

The key recommendation is that an Australian Human Rights Act should be established. Introducing legislation that would give effect to the international treaties Australia has committed to has been a longstanding request by UN human rights bodies each time Australia’s human rights performance has been reviewed.

The recommendations also aim to improve access to justice by allowing cases to be brought directly to the federal court where conciliation is not appropriate (rather than requiring it to have failed first) at no cost. The report recommends the government seek legal advice to determine whether there is a constitutionally sound way of having a process sitting between conciliation by the Australian Human Rights Commission and litigation in federal courts.

There are several other key themes in the recommendations. The first is a strong focus on the public sector, apparently noting the public sector as a site for human rights protection, and unfortunately, often a site of human rights violations.

For example, the report states, “many submissions highlighted the Robodebt scheme as an example of an unlawful program that resulted in significant human cost, where recipients of government support were not treated with dignity and fairness”.

There are recommendations on mandatory human rights training for all Australian Public Service employees, including senior executives, the creation of specialised human rights units in each government department, and the establishment of a Human Rights Office in the Attorney-General’s Department.

It is recommended that public servants have a positive duty to consider people’s rights and freedoms. This would include considering them when developing government policy and legislation.

Clear obligations for the public sector, accompanied by training and support, could improve human rights in a number of areas, including education and housing, and make a positive impact on many people’s daily lives.

The Committee’s report also supports providing human rights guidance material to private entities that perform public functions, such as in the aged care and disability sectors. This is important as many essential government services to vulnerable populations are delivered by non-government entities.

Royal Commissions into Aged Care and Violence, Abuse, Neglect and Exploitation of People with Disability have revealed the manifold human rights abuses that have occurred in these sectors. Another important aspect of the positive duty is the ‘participation duty’. As explained by the Australian Human Rights Commission in its ‘Free and Equal’ report:

The participation duty would require public authorities to ensure the participation of certain groups and individuals in relation to policies and decisions that directly or disproportionately affect their rights. The ‘participation duty’ addresses a fundamental problem in the development of federal policies and decisions – inadequate engagement with the very people to whom those decisions directly apply.

The Committee made recommendations for the Australian Human Rights Commission to be effectively and sustainably funded to perform its functions. This is to be welcomed as the Commission was fairly recently at serious risk of losing its A-status global accreditation due to non-transparent appointments to Commissioner positions and its budget has been insufficient to meet all its statutory responsibilities.

The Committee also recommended developing a national human rights indicator index to measure progress on human rights. (Full disclosure: one of the authors of this article has been awarded funding to progress this proposal).

Another useful recommendation for oversight purposes is to establish a public database of findings and recommendations for Australia from UN human rights bodies, and any Australian government responses. Over the years, Australia has sometimes responded to negative UN findings or reports but in other cases has rejected or ignored them.

Finally, the Committee also makes the somewhat weak recommendation that “further consideration be given to the drafting of the right to a healthy environment”. Here again, Australia lags behind global standards — over 150 of the UN’s 193 member states recognise and protect the right to a healthy environment through their constitutions and laws.

What happens next?

It is now for the government to respond to this landmark report. The Attorney-General initiated this inquiry and did so in terms that indicated strong endorsement for human rights reform. The volume of supportive submissions and the comprehensive nature of the Committee’s report indicate strong support for reform at social and parliamentary levels.

Importantly, the government now has before it full legislative proposals for a Human Rights Act – one from the Australian Human Rights Commission and another from the Committee, which draws heavily on the Commission’s model, but with some adjustments based on its inquiry.

It is within the power of parliament to establish a Human Rights Act for Australia.

The government will likely find considerable support among Green and Independent MPs and Senators should it move to incorporate international human rights obligations into Australian law. Doing so would be a historic step towards ensuring adequate human rights protection for everyone in Australia.

First published by 360info. on 14 June, 2024

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