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In the national interest: the promotion and protection of human rights

Attorney-General’s Department Talking Heads Seminar Series


The Hon Catherine Branson QC, President, Australian Human Rights Commission

24 June 2010


1 Introduction

Thank you for the opportunity to speak here today. I would like to begin by acknowledging the traditional owners of the land on which we meet, the Ngunnawal peoples, and pay my respects to their elders past and present.

Over many years, officers of the Attorney-General’s Department have worked hard to ensure the protection and promotion of human rights in Australia. In particular I would like to acknowledge the work of the Human Rights Branch and the Office of International Law. You will be aware of the significant efforts of the Human Rights Branch during the National Human Rights Consultation, and the ongoing work in implementing the recently announced Human Rights Framework. The Commission is grateful for the good working relationship that we have with the teams responsible for this work.

Today I would like to begin with a brief overview of the work of the Australian Human Rights Commission and the internationally recognised role of national human rights institutions such as ours. I will then reflect on the Human Rights Framework for Australia and the ways in which I see this new Framework improving human rights protections in Australia.


2 An introduction to the work of the Commission

I am sure that many of you will have a good understanding of the role and functions of the Australian Human Rights Commission – however, for those of you less familiar with our work, I would like to give an overview of who we are and what we do.

The Australian Human Rights Commission is an independent statutory agency established in 1986 by the Australian Human Rights Commission Act. The Act sets out our responsibilities and functions in relatively broad terms.

The Commission has functions under the four federal discrimination acts – the Sex Discrimination Act, the Race Discrimination Act, the Disability Discrimination Act and the Age Discrimination Act.

We also have more general human rights responsibilities to protect and promote the rights and freedoms contained in certain international human rights treaties, including the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities and International Labour Organisation Convention 111 which relates to equal opportunity in employment.

To execute our responsibilities we have a range of statutory functions:

The Social Justice Commissioner has responsibilities to prepare two reports annually on Indigenous peoples’ enjoyment of human rights. These are the Social Justice Report and Native Title report and they are tabled in the federal Parliament.

The Commission also has a small international program team that specialises in education and training with a focus on the Asia-Pacific Region.


3 The role of National Human Rights Institutions

We are Australia’s national human rights institution. Internationally, national human rights institutions are guided by a set of standards contained in a resolution of the United Nations General Assembly and more commonly referred to as the ‘Paris Principles’. These principles identify the key characteristics of national institutions necessary for an institution to be recognised as credible and sufficiently rigorous. They are concerned with role, composition, functions and independence. National institutions are subject to a process of accreditation on a periodic basis to establish whether they meet, or continue to meet, these standards.

In order to be compliant with the Paris Principles, a national human rights institution requires:

The Australian Human Rights Commission is an ‘A’ Status national human rights institution. This means that the Commission fully meets the requirements set by the international community for an effective national institution that promotes and protects human rights.

I would like to discuss two key features of ‘A’ status national human rights institutions: independence and the power of investigation as it relates to individual complaints.[2]

3.1 Independence

It is important to understand the true value of an independent institution such as ours.

National human rights institutions walk a difficult path. While we are dependent on government for funding, our role is to sit outside the government and to analyse law and policy through a human rights lens. Our independent voice requires that, if necessary, we criticise what the government has done or proposes to do. At other times we may support a particular policy or the passing of a new law. We are not bound by ministerial direction and our work is not dictated by government policy. We have a direct relationship with the Parliament, and a direct reporting relationship and significant interaction with the parliamentary committee system. Our position is always determined by reference to the international human rights obligations into which Australia has voluntarily entered.

The independence of the Australian Human Rights Commission makes an important contribution to the checks and balances in our political system. We contribute to the accountability of government. Our independence is fundamental to our work. However, we always endeavour to work constructively and collaboratively with the Australian Government to improve the protection of human rights in our community.

The independence of the Commission is particularly important in the absence of statutory or constitutional protection of rights. The Commission consistently reminds the Australian Government that it has agreed to be bound by international human rights standards. We also support the community sector in their efforts to ensure that Australian law and policy meets human rights standards.

3.2 Individual Complaints

Another key feature of a national human rights institution is the capacity to receive and investigate complaints from individuals who allege a breach of their human rights.

The Commission can accept complaints on three related grounds: complaints about unlawful discrimination, general human rights complaints and complaints about discrimination in employment flowing from our obligations under the International Labour Organisation Treaty 111.

The resolution of individual complaints can have an impact on two levels: it always has an impact on the individual involved, and often it also has a systemic impact.

For example, a substantial number of the complaints the Commission receives relate to unlawful discrimination on the grounds of disability. The conciliation of such a complaint can change an individual’s life. An example is a conciliation process which led to an employer installing screen reader software for a person with a vision impairment. The employer had previously refused to make this reasonable adjustment to the workplace.

In some cases, the resolution of an individual complaint has a systemic outcome. In one such instance, a deaf man from Western Australia made an individual complaint to the Commission about his local cinema failing to provide captioned movies. He told the Commission that his complaint was not just about him and his local cinema: the failure to provide captioned movies was an issue that affected all deaf and hearing-impaired people in Australia.

The Commission established a forum involving industry and disability groups. The result was the roll out of a National Access Plan, with a number of major cinemas releasing captioned movies right around Australia. A noteworthy result from one person’s complaint!

Individual complaints also inform the Commission’s broader policy work. The complainant concerned about his local cinema is just one of a number of people with disability to lodge complaints about the lack of access to public services and facilities. These complaints have served as an impetus for developing general standards to clarify the non-discrimination provisions of laws such as our Disability Discrimination Act.

Just last month the Australian government tabled the Disability (Access to Premises) Standards in Parliament. The Commission, along with this department, played an important role in developing these Standards, which clarify how architects, builders and developers can design and construct buildings to ensure that buildings are accessible to people with a disability. These voluntary Standards will apply to all new public buildings constructed or renovated after May next year. This is a very significant development – Parliamentary Secretary Shorten described the current situation as similar to apartheid: we would not tolerate a sign outside a building prohibiting people of different races from entering and yet we have until now tolerated buildings being built in such a way that many people with disabilities simply cannot physically enter them.

The resolution of complaints can have a fundamental impact on the lives of vulnerable people in our community. Sometimes individual lives are changed; sometimes the result is a change in the lives of many. We are committed to ensuring wherever possible that our broader policy work draws upon the issues that come before us as individual complaints.

4 Australia’s Human Rights Framework

When Louise Arbour held the position of the United Nations High Commissioner for Human Rights, she was asked to comment on the inadequacies of the UN system in dealing with serious human rights violations around the world. While she conceded that there were problems with the system, she replied:

“This is our world. We have to make it work.”[3]

In Australia, the system of human rights protection is far from perfect. But we have to make it work, particularly for those whose rights are easily overlooked or undervalued. It is in the national interest for all of us in Australia to begin to take human rights more seriously.

As you no doubt know, Australia is the only Western democracy without over-arching legal human rights protection – through either a Bill of Rights or a Human Rights Act. There are some limited human rights protections in our Constitution, in statutes and in the common law. However, the constitutional protections aside, these protections can be deliberately or inadvertently undermined by laws made by the Parliament.

Although the Government’s recently announced Australia’s Human Rights Framework has not promised all that we, as a Commission, wished for, we do believe that the Framework contains much that is positive and much that can be made to work for the better protection of human rights in Australia.

I wish to address briefly two aspects of the new Human Rights Framework for Australia: the Human Rights (Parliamentary Scrutiny) Bill and the support for better human rights education in Australia.

4.1 Human Rights (Parliamentary Scrutiny) Bill 2010

The Commission has welcomed the recent commitment to establish a Parliamentary Joint Committee on Human Rights and to introduce a requirement that all new Bills introduced into Parliament be accompanied by a statement of compatibility Australia’s international human rights obligations. These initiatives have the potential to make significant contributions to the better protection and promotion of human rights in Australia and to give human rights a prominent place on the Australian political agenda.

The exact powers and proceedings of the Joint Committee will be determined by resolution of both Houses of Parliament.[4] So the details of exactly how the Joint Committee will function and what its powers will be are still undetermined. Nonetheless, there is reason to believe that the scrutiny of bills by this Joint Committee will prove an important step towards the development of an enhanced human rights culture in Australia. Such scrutiny has the potential to improve the protection and promotion of human rights in three ways. It should:

I will address each of these in turn.

(a) Prevent breaches of human rights from occurring, because human rights are considered from the beginning of the law and policy making process


By establishing a Parliamentary Joint Committee on Human Rights, the Australian government sends a message that it commits itself seriously to complying with its international human rights obligations.

Parliamentary processes can often work swiftly and without proper consideration of human rights. This was arguably the case, for example, with the Northern Territory Emergency Response legislation and some counter-terrorism legislation. Parliament has acted under the pressure of a perceived emergency and passed legislation subsequently widely criticised as incompatible with Australia’s international human rights obligations.

The preparation of Statements of Compatibility and the existence of the Joint Committee should ensure that the human rights implications of new laws are openly and transparently assessed and debated before the laws are enacted.

We can look to the example of how the Joint Standing Committee on Treaties has operated to be optimistic of this. That committee was introduced several years ago, along with new processes for the conduct of a National Interest Analysis prior to Australia entering into new treaty obligations. The working methods of that committee are now entrenched and thoroughly accepted as how we do business.

(b) Human rights should not be an after-thought but should be embedded in the early stages of the policy development process. And it is necessary not to think too narrowly about the potential for human rights issues to arise – as we know issues of this kind can arise in areas as diverse as the regulation of the legal profession and measures to enhance national security.


The Joint Committee will be an important mechanism for the prevention of human rights breaches in Australia, providing it is diligent, well informed and adequately resourced.

The Joint Committee has broad functions, allowing it to inquire into and report on any piece of legislation that raises significant human rights concerns. This will assist Parliament to be better equipped to consider the real human rights implications of legislation during debate.

I have spoken before about the need to build a ‘culture of justification’. By this I mean a culture in which every time government exercises power in a manner that interferes with our fundamental freedoms, this interference is publicly and transparently justified. This should include explaining why such interference is necessary and how it is the most limited restriction of rights available. I believe that the establishment of the Joint Committee lays the foundation for that culture. It will no longer be possible for the Parliament simply to overlook the human rights consequences of a particular law. The Parliament will need to be open and transparent about what it is doing and how it intends on doing it.

(c) Development of a dialogue about human rights between the Australian Government and the Australian people


The Australian Human Rights Commission believes that the Joint Committee should have the power to consult widely during any inquiry process. This will be a first important step towards ongoing, robust and meaningful dialogue between the Government and the community about human rights issues.

The scrutiny process itself should be open and transparent and easily accessible to members of the public. It is crucial that the Joint Committee encourages the community to engage with the scrutiny process. Direct public participation in the formulation and review of new laws will influence the development of law and policy in a way that is responsive to the community’s expectations about how human rights should be protected. It will also contribute to a greater understanding of human rights and how they apply to everyone, everywhere, everyday.

4.2 Human Rights Education

This leads me to discuss the importance of human rights education. Changes in human rights in Australia will not come about through the law alone.

We must build human rights into both law and practice. Just last week I spoke at a human rights policy forum in the Philippines about human rights challenges in Australia. In that speech, I identified building a stronger human rights culture as the greatest human rights challenge for Australia.

This challenge stems partly from the low levels of awareness about human rights in Australia. Indeed, the key finding of the National Human Rights Consultation Report was that Australians know little about their human rights – what they are, where they come from and how they are protected.[5]

This is why the Australian Human Rights Commission has welcomed the Government’s commitment to better human rights education in Australia and the dedicated funding to both the Attorney-General’s Department and the Commission for this purpose.

The Commission agrees with the Government that raising understanding and awareness of human rights within Australia’s public service must be a key priority in building a rights-responsive government.

The Victorian Human Rights and Equal Opportunity Commission has identified one of the major benefits of the Victorian Human Rights Charter to be

the continuing integration of human rights into decision making and policy formulation ... with departments beginning to demonstrate an understanding of the Charter as a set of underlying principles that guide daily practice.

Similar observations have been made about the impact of the UK Human Rights Act on embedding human rights principles into the daily practice of public bodies.[6]

The Commission supports the public service in its leadership role driving a cultural change that places human rights as a central consideration in policy development, in decision making and in service delivery.

At the same time, the overall Commission goal is to give greater prominence to human rights at all levels of society.

One of the Commission’s greatest challenges is to help strengthen Australia’s human rights culture so that all Australians believe and understand that ‘human rights’ is about all of us and our lives everywhere and everyday.

The Commission is therefore increasing our focus on building rights awareness and empowering not only the most vulnerable communities experiencing human rights abuses, but also the community at large.

It will be a priority for the Commission not only to leverage our education expertise and relationships with specific vulnerable communities but also to broaden our focus by engaging with members of the general community so that we all become active participants in creating a fairer and better Australia

In our educative role, we work with all sectors of society to improve human rights consciousness. We will be using a mix of activities to help achieve this long term goal – ranging from developing broad community information, education and engagement campaigns and programs, to working with government to build stronger human rights laws, policies and practices, to resolving discrimination and human rights complaints.

Some examples of our work in this regard include the recently launched materials on Workers with mental illness: a practical guide for managers. This guide was developed to help employers better understand mental ill-health and ensure the dignity and rights of workers with mental ill-health are respected in their workplaces.

The Sex Discrimination Commissioner has developed strong partnerships with large businesses to address ongoing inequality between men and women in corporate Australia. The Commission has been managing a number of projects under the Community Partnerships for Human Rights program to increase social inclusion and counter discrimination experienced by minority communities in Australia. These are just some examples of the types of activities we hope will build understanding and respect and strengthen the human rights culture within the community at large.

Through the Commission’s strategic planning process for 2010-11, we have also decided to place a significant focus in our work on issues relating to violence, harassment and bullying. We know that this is an important focus for the Government a well.

Most people in Australia have had some experience of violence, harassment or bullying, or know someone who has. It is an issue that impacts on all of us individually, and as a community, because we all want to feel safe and included in everyday life.

The Commission will be taking a multi-faceted approach to addressing this important human rights issue. We will be building on our existing work which monitors and develops systemic law and policy reforms intended to reduce violence and harassment in specific communities – for example family violence in indigenous communities, sexual harassment in the workplace and violence directed at international students.

We will also be developing new strategies designed to encourage all members of the community to take part in creating a safer and more inclusive Australia. We will start by focussing on bullying in the cyber-world and looking at strategies to inform and empower people on the internet to intervene in situations which they believe amount to bullying or harassment. We will work closely with partners already engaged in this space to ensure everyone has a safer experience online including the government, internet providers, community organisations and the young people who are most active in this space.

5 Conclusion

The last eighteen months has seen a remarkable amount of public discussion about human rights in Australia. This Department has played a leadership role in developing the Human Rights Framework. I urge you to continue in that important role as the Framework is rolled out. Particularly important will be your efforts to lead other departments in bringing human rights to mind early in the policy development process. The Australian people will be well served by a public sector that has a greater awareness of the human rights implications of law and policy.

The Human Rights Framework presents an opportunity for positive changes to Australia’s human rights record and reputation. We look forward to continuing to work with the Department to realise this opportunity to enhance the protection and promotion of human rights in Australia.

[1] Asia Pacific Forum, International Standards for National Human Rights Institutions, available at http://www.asiapacificforum.net/members/international-standards
[2] United Nations Office of the High Commissioner for Human Rights, Fact Sheet No. 19, National Institutions for the Promotion and Protection of Human Rights, available at http://www.ohchr.org/EN/PublicationsResources/Pages/FactSheets.aspx
[3] Louise Arbour, interview with George Negus, SBS Dateline,19 March 2008, transcript available at http://www.sbs.com.au/dateline/story/transcript/id/543024/n/Interview-with-Louise-Arbour
[4] Human Rights (Parliamentary Scrutiny) Bill 2010, s6.
[5] National Human Rights Consultation Report, 2009, Foreword
[6] British Institute of Human Rights, The Human Rights Act - Changing Lives (2nd ed., 2008), p 21. At http://www.bihr.org.uk/sites/default/files/The%20Human%20Rights%20Act%20-%20Changing%20Lives.pdf (viewed 23 March 2009).