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President speech: The National Human Rights Consultation: Outcomes

Commission Commission – General

The National Human Rights Consultation: Outcomes

The Hon Catherine Branson QC

Centre for Comparative Constitutional Law, Melbourne Law School, University
of Melbourne

21 October 2009


1 Introduction

I would like to begin by acknowledging the traditional owners of the land on
which we meet, the Wurundjeri People of the Kulin Nation, and pay my respects to
their elders past and present.

Thank you for the opportunity to speak with you today. I have been asked to
offer some observations about the outcomes of the National Human Rights
Consultation.

Father Frank Brennan, the chair of the Consultation Committee, and his fellow
Committee members, Mary Kostakidis, Mick Palmer and Tammy Williams, delivered
their report to the Attorney-General on 30 September this year. It was launched
and publicly released in Melbourne on 8 October.

We have seen a remarkable democratic process unfold in Australia through this
Consultation. The Consultation Committee received more than 35,000 submissions.
Another 6000 people attended the community roundtables held by the Committee in
52 locations around Australia. The Committee also held three days of public
hearings in Canberra in July, with over 70 speakers taking part in panel
discussions and debates.

This is the largest participation in a national consultation process ever
seen in Australia. We can draw two main conclusions from the level of community
involvement in this Consultation. First, a significant number of Australians
care enough about how human rights are protected to make their views known to
the Consultation Committee. Secondly, democratic processes are changing with
technological advances. Many of the submissions were facilitated by on-line
communications strategies by organisations such as Amnesty International, GetUp!
and the Australian Christian Lobby.

Critics of the Consultation Committee’s recommendations have sought to
discredit submissions made through campaigns. My own view is that the views of
all those who felt strongly enough about the issue to have their say should be
counted. This is not to say that every submission received should be attributed
precisely the same weight or that it can safely be concluded that submissions
were received from a representative sample of Australians. It was, one may
assume, because the Committee recognised this last point that it commissioned a
national telephone survey of a random sample of Australians.

2 What did the Committee hear?

Most of the people who engaged with the Committee wanted to see greater
protection of human rights in Australia. The majority of those Australians who
constituted the random sample wanted this also.

The Committee heard that there have been serious breaches of human rights in
Australia. The following examples from the past decade were frequently raised
during the Consultation:

  • the suspension of the Racial Discrimination Act 1975 (Cth) in order
    to implement the Northern Territory Emergency Response (often called the
    Intervention)
  • the lengthy, and potentially indefinite, mandatory detention of asylum
    seekers and
  • the increase in the powers of law enforcement agencies under new national
    security laws.

The Committee observed a general sentiment that
‘the power of the executive arm of government needs to be checked’.

But the Consultation did not only hear about high-profile examples of human
rights breaches, such as those that I have mentioned.

The Committee also heard about the human rights that affect so many of us in
our everyday lives. Basic rights, such as the right to the highest attainable
standard of health, the right to an adequate standard of living, the right to
adequate housing and the right to education. Many people told the Committee of
their concern that vulnerable groups such as Aboriginal and Torres Strait
Islander people, people experiencing homelessness, the mentally ill, people with
disabilities, the elderly and children in care often miss out on the fulfilment
of some of their basic rights.

Many other people told the Committee that they thought that human rights are
adequately protected in Australia. This is probably because most of us, most of
the time, do not find our basic human rights under threat.

Some examples

My challenge to those who feel that human rights are adequately protected in
Australia is to put themselves in the position of the most marginalised members
of our community.

The Australian Human Rights Commission has over two decades’ experience
in monitoring the adequacy of the protection of human rights in Australia. Our
view is very similar to the majority of those who made submissions to the
Consultation Committee.

Many fundamental human rights are currently not adequately protected
in Australia. Our Constitution was not intended to be a human rights instrument.
It contains very few rights and these are limited. The common law protects some
rights but is also incomplete and fragile – Parliament can override common
law rights. Some international human rights treaties have been incorporated into
Australian law, but Australia has not comprehensively incorporated into domestic
law all of the human rights treaties by which it is bound.

And in many cases individuals whose human rights are breached do not have
access to an effective remedy.

For example, the High Court of Australia found that the right of Mr Al-Kateb
to be free from arbitrary detention was breached by the Migration Act
1958
(Cth).[1] The majority found
that the Act unambiguously required Mr Al-Kateb to be detained until he could be
removed from Australia, even though there was no real prospect of his removal.
There is nothing in the Constitution to prohibit indefinite detention of this
kind. Nor do we currently have any formal means whereby Parliament is notified
that a law can give rise to a human rights breach so as to trigger a
reconsideration of the law.

In another example, the Federal Court found in Rush v Commissioner of
Police
[2] that the Australian
Federal Police had acted lawfully in providing information to the Indonesian
authorities about the young men and women now known as the Bali Nine. This
action exposed the Bali Nine to the death penalty (three of the group are
awaiting execution). This is despite the fact that Australia is a party to the
ICCPR (which protects the right to life) and to the Second Optional Protocol to
the ICCPR (which aims at the abolition of the death penalty worldwide). There is
currently no requirement for our executive government formally to consider
whether its policies in an area such as this breach fundamental human
rights.

Over many years the Commission has also heard of the human rights concerns
that touch on everyday life, particularly of the most marginalised members of
our community, including Aboriginal and Torres Strait Islander peoples, those
experiencing homelessness, people with a disability, including those
experiencing mental illness, and those living in rural and remote Australia. For
many of these people what matters is the realisation of economic, social and
cultural rights. This was a matter of much controversy and debate during the
Consultation and is an issue I will return to later.

3 What did the Committee recommend?

So what did the Committee recommend?

The Committee recommended that Australia adopt a federal Human Rights Act.
The vast majority of submissions supported this option for the reform of the
protection of human rights in Australia. The Australian Human Rights Commission
also strongly supports a Human Rights Act for Australia.

However, over half of the Committee’s recommendations do not concern a
Human Rights Act. They too, if implemented, will make a significant difference
to the protection and promotion of human rights.

A culture of human rights

The Committee’s primary recommendation was that education be the
highest priority for improving and promoting human rights in Australia.

The Committee observes that ‘improving people’s understanding of
what human rights are, how they are protected and what they mean in terms of
individual and collective responsibilities appears to be vital to developing a
human rights culture’. The Committee also ‘accepts the view that if
a community has a greater understanding of human rights its members will start
to see themselves as ‘rights-holding entities’ and, in turn, will be
better able to assert their rights and be more likely to respect the rights of
others’.

The Committee identified significantly enhanced human rights education in
schools and universities, in the broad community and in the public sector as a
major priority. It suggests that a National Human Rights Education Plan would be
an appropriate means to coordinate the delivery of human rights education across
sectors in Australia.

The Commission agrees that a National Human Rights Education Plan,
accompanied by the delivery of practical and effective human rights education,
would significantly enhance the development of a human rights culture in
Australia.

However, we are concerned that human rights education is fundamentally linked
to effective human rights protections. While human rights protections in
Australia remain an incomplete patchwork, it will be difficult to deliver truly
effective human rights education.

For this reason the Commission believes that Australia needs comprehensive
legal protection of human rights at the federal level in the form of a national
Human Rights Act as well as significantly enhanced human rights education.

A Human Rights Act for Australia

As I have mentioned, a clear majority of those who made submissions to the
Consultation supported Australia adopting a federal Human Rights Act.

As explained by the Committee chair, Father Frank Brennan, ‘87.4 per
cent of those who presented submissions to the Committee and expressed a view on
the question supported such an Act — 29,153 out of 33,356. In the national
telephone survey of 1200 people, 57 per cent expressed support for a Human
Rights Act, 30 per cent were neutral, and only 14 per cent were opposed’.

The Commission provided a detailed submission to the Consultation outlining
why we think that a Human Rights Act is fundamental to increased human rights
protections, and our view on how such an Act should work.

The Commission believes that the building blocks of a good system of human
rights protection include:

  • an Australian Parliament that considers the human rights implications of all
    new laws
  • Australian Government decision-makers who respect human rights when
    implementing laws, developing policy and delivering public services
  • Australian courts that consider human rights when making decisions
  • the right to challenge government decisions which breach the human rights of
    individuals and
  • an awareness among all people in Australia of their human rights and their
    responsibility to protect the rights of others.

We believe that a
Human Rights Act should be based on these foundations.

The Committee specifically recommends a Human Rights Act in the form of the
‘dialogue model’ – one which:

  • protects the rights of all people in Australia
  • contains a ‘reasonable limitations’ clause for derogable
    rights
  • requires statements of compatibility to be tabled for all Bills introduced
    into the federal Parliament
  • contains an interpretive provision and
  • includes an independent cause of action against a federal public authority
    for breach of an individual’s human rights.

This model of
Human Rights Act is close to that put forward by the majority of substantive
submissions supporting a Human Rights Act.

This reform would not be a revolution in Australia’s system of
government, but a modest and sensible reform of the way that human rights are
considered by our decision-makers.

Implementation of the Committee’s recommendations regarding a Human
Rights Act for Australia would be a significant step towards a much better
system of human rights protection for Australia.

Economic, social and cultural rights

I would like to spend some time discussing the Committee’s treatment of
economic, social and cultural rights.

In our submission we suggested that a Human Rights Act should explicitly
include economic, social and cultural rights. Our reasons for this view include
that:

  • human rights are universal, interdependent and indivisible
  • some of the most pressing human rights concerns facing people in Australia
    involve economic, social and cultural rights – it is important that
    government decision-makers are given guidance on the significance of these
    rights
  • a Human Rights Act could be drafted to ensure that courts take into account
    the principle of ‘progressive realisation’
  • a Human Rights Act could be drafted to avoid requiring courts to make
    judgments that should properly be left to government – specifically by
    limiting the role of the courts to assessing whether the measures taken by
    government can be reasonably understood to be consistent with the progressive
    realisation of the right in question.

There is a significant
difference between the Commission’s view and the recommendations made by
the Committee about the treatment of economic, social and cultural rights.

The Committee suggests that some economic, social and cultural rights might
be included in a national Human Rights Act, namely the rights to an adequate
standard of living, to the enjoyment of the highest attainable standard of
physical and mental health, and the right to education. This is a significant
development as economic, social and cultural rights are generally not included
in human rights instruments in other comparable jurisdictions.

However, the Committee recommends that these rights should not be judicially
enforceable. They make this recommendation following advice from Stephen Gaegler
SC and Henry Burmester QC. The advice states that:

An examination of the rights set out in the [International Covenant on
Economic, Social and Cultural Rights] demonstrates a general absence of what
would traditionally be regarded as judicially manageable standards. Given the
issues of resource allocation that are necessarily involved, how is a court to
assess, for instance, whether or not a person is being denied “just and
favourable conditions of work” (Art 7), “an adequate standard of
living” (Art 11) or “the enjoyment of the highest attainable
standard of physical and mental health” (Art
12).[3]

I would like to make two observations about the justiciability of economic,
social and cultural rights. The first is that it is not only economic, social
and cultural rights which touch on issues of resource allocation. A classic
example of a case involving civil and political rights which impacted on
resource allocation is that of Dietrich.[4] In this case the
High Court considered the provision of legal aid in the context of the common
law right to a fair trial. This is something that obviously touches upon
resource allocation, but the High Court did not find itself unable to judge the
issue. Further, as I have already indicated, a Human Rights Act could be drafted
to limit the role of the courts to assessing whether the measures taken by
government are consistent with the progressive realisation of protected
economic, social and cultural rights. Such a test would not be far removed from
the current test of validity on the issue of ultra vires - i.e. whether the law
is appropriate and adapted to the achievement of an end within
power.[5]

My second observation is about the objection that economic, social and
cultural rights are too imprecise to be the subject of judicial determination.
The daily work of common law courts involves considering the meaning of a range
of inherently imprecise concepts. For courts concerned with constitutional
issues, examples include the implied constitutional right of political
communication[6] and the extent of
regulation that is compatible with trade, commerce and intercourse remaining
‘absolutely free’.[7]

More every day examples involve common law or statutory concepts such as what
is ‘unconscionable’, ‘unreasonable’,
‘unfair’ or ‘just in all of the circumstances’.
Therefore, consideration by a court of what conditions of work might be
‘just and favourable’, for example, would not seem to involve a
process of reasoning beyond that which courts currently
undertake.[8]

Nonetheless, the Commission acknowledges the strong views of many that
economic, social and cultural rights should not be the subject of litigation. We
therefore welcome the recommendation that the Commission should be able to
receive complaints about possible breaches of these rights. Our investigation
and conciliation processes will ensure the facilitation of the conversation
between individuals who feel these rights have been breached and relevant
government decision-makers.

The Commission also supports the recommendation that some economic, social
and cultural rights should be included in a Human Rights Act. Those parts of the
Act, such as pre-legislative scrutiny of proposed laws, that do not involve
access to the courts should apply to these rights. The lives of many people in
Australia will be enhanced if a human rights framework is consistently applied
to the development of law and policy affecting the rights to and adequate
standard of living, the highest attainable standard of health and the right to
education.

Recommendations about the Commission

The Commission is pleased with the recommendations to enhance the functions
of the Australian Human Rights Commission. In particular the Committee
recommended expanding the definition of ‘human rights’ under our
Act. This would mean that the Commission could perform our key functions of

  • providing education and raising public awareness about human rights
  • handling complaints of discrimination and breaches of human rights
  • researching human rights issues and contributing to policy developments and
  • performing legal advocacy on human rights issues

with regard to
all of Australia’s international human rights obligations.

In short, we will be able to do a more comprehensive job of promoting and
protecting human rights.

We also welcome the recommendation that complaints of human rights violations
and those made under International Labor Organization Convention 111 should be
able to proceed to court if they cannot be conciliated. Currently we have a
situation where individuals whose human rights have been breached, for example,
people who have experienced inhuman and degrading treatment while in immigration
detention, have no access to an effective remedy. The final outcome of their
complaint, should it not be conciliated, is a report made to Parliament - the
recommendations of which may not be acted upon. Providing access to the courts
for these complainants is an important step towards providing an effective
remedy for breaches of human rights.

There has been some controversy in the papers in recent days about whether
the Commission should have a role in notifying Parliament if a court finds that
a law is inconsistent with human rights. This controversy stems from the
question of whether a Human Rights Act should allow a court to make declarations
of incompatibility if a law cannot be interpreted consistently with human
rights. The report recommends that such declarations be made, but only by the
High Court.

However, the Committee observes that there may be practical problems with
this approach. They say:

If a party is seeking a declaration of incompatibility in the High Court, it
is most probable that the party will have lost its case in a lower court, having
failed to convince the court that the action on the part of the defendant
federal public authority is contrary to law. The losing party might have
exhausted their cause of action and have no prospect of winning an appeal. The
High Court might not be persuaded to grant special leave in a case where the law
is clear, where the lawfulness of the public authority’s action is
established, and where the wronged party is now seeking no remedy other than a
declaration of incompatibility.

The report contemplates the alternative of the Australian Human Rights
Commission notifying a Parliamentary Joint Committee on Human Rights regarding
the inconsistency. Much has been made in media reports of the difficulties of
this element of a Human Rights Act. In recent media reports, Father Brennan has
expressed his personal view that it the Australian Human Rights Commission
should not have a role in notifying Parliament.

Our view is that it does not matter who is charged with notifying Parliament.
What does matter is that Parliament is informed, so that there is an opportunity
for a careful and principled reconsideration of a law that has been found by a
court to breach human rights.

In any event, this element of a Human Rights Act, while important, is not the
key reform that will lead to enhanced human rights protections. Father Brennan
has been quoted as saying that this issue is ‘a pimple on a
hippopotamus’ backside’. What will make the greatest difference to
human rights protections are the pre-legislative processes that will assist in
preventing human rights problems from occurring in the first place.

4 Responses to the report: too much power to the
courts?

Whether Australia should adopt a Human Rights Act remains controversial.

The report of the National Human Rights Consultation has been generally well
received by those organisations and individuals that recommended enhanced human
rights protections, particularly those who recommended that Australia should
adopt a Human Rights Act.

However, as the report recognises, there is significant opposition to a Human
Rights Act for Australia. Those opposing such a reform have been vocal since the
report’s release.

The main criticism voiced by those opposing a Human Rights Act is that it
shifts power from the Parliament to the courts. Senator George Brandis, in his
press release, argues that a Human Rights Act would have the effect of giving
the courts the final say on questions such as conscription and same-sex
marriage.

It is worth stopping to consider the views expressed recently by Professor
Stephen Gardbaum, an international expert on the dialogue model of human rights
protections. He suggests that in assessing models of Human Rights Acts
‘the relevant question is not whether there has been an increase in
judicial power but whether too much or too little’. In my view, the
balance in the model being considered in Australia is the right one. It will
not, as some have suggested, compromise our system of democracy.

After all, a Human Rights Act would be an act of Parliament. Opponents of a
Human Rights Act are somewhat caught in a bind on this. They say we should place
our faith in our elected representatives to protect human rights. But not if
they should decide to do so through a Human Rights Act.

The fact is that an Australian Human Rights Act would be fundamentally
democratic. It would be an act of our democratically elected Parliament setting
out the framework for human rights protections in Australia.

A Human Rights Act obviously does give courts an increased role in protecting
rights. Lord Bingham of Cornhill has described the benefit of the UK Human
Rights Act as ‘empowering the courts to uphold certain very basic
safeguards ... for those members of society who are most disadvantaged, most
vulnerable and least well-represented in any democratic representative
assembly’.

A Human Rights Act should recalibrate the relationship between the courts and
Parliament. Parliament does not always get the balance between the rights of
individuals and the protection of the public right. Parliament does not always
recognise the full human rights impacts of the laws that it makes. We do want
the views of the courts to be known when they conclude that laws are
incompatible with human rights. And we do want Parliament to listen to these
views.

Frank Brennan in his address last week to the National Press Club provided a
direct response to Senator Brandis. He observed that it will always be our
elected Parliament that has the final say. An individual might challenge a law
in the courts. One or more courts would then have to consider whether any
limitations on rights were demonstrably justified in a free and democratic
society. If a court thought that there was an unwarranted interference with
human rights it would say so in its reasons for judgment. However, it would
always be up to Parliament to decide how to legislate in response to such a
finding. Parliament would not be obliged to change the law, but would have the
opportunity to undertake a serious, principled and transparent discussion of
whether to do so.

5 Responses to the report: A victory for the
elites?

In the last couple of weeks we have also heard the response that the report
is a victory of the ‘elites’. My response to this is short.

The majority of those whose human rights are most at risk of being breached
in Australia are members of marginalised groups; they are anything but
elite.

The Consultation Committee heard from a very wide range of people –
people from all walks of life, most of whom thought that changes should be made
to ensure that Australia is a fairer place to live.

The organisations that made submissions to the Consultation represent many
thousands of ordinary Australians.

This report does not represent the voice of the elite.

6 Moving forward

So what are we to do with the Committee’s report?

This report is an excellent document. It reports on a comprehensive process
of consultation with the Australian public; it provides a wealth of information
about the way human rights are currently protected in Australia; and it makes
careful and considered recommendations about how human rights could be better
protected.

It seeks to develop and Australian culture of human rights through more
comprehensive human rights education and mechanisms that integrate human rights
considerations into all stages of government decision-making.

An important aspect of the report is its recommendation for a Human Rights
Act.

We are at a significant juncture in the debate about whether Australia should
have a Human Rights Act. As I have mentioned, there has been heated media debate
in the two weeks since the report has been released, and there will be more.

My call to both those who support, and those who oppose a Human Rights Act,
is to engage in informed and measured debate on the question of how best to
protect human rights. Little will be gained from the rehearsing of polarised
positions or expressions of animosity.

There is much common ground – everyone engaged in this debate expresses
a desire for a community in which human rights are respected. The differences
lie in views about the best ways to achieve human rights protection.

Let us build on this common ground to work together to build a community
where all people are more aware of their human rights and their responsibility
to protect the rights of others.


[1] (2004) 219 CLR 562 at 581,
642-643, 661.
[2] (2006) 150 FCR
165.
[3] S Gageler SC and H
Burmester QC, In the matter of Constitutional issues concerning a Charter of
Rights – Supplementary Opinion
, SG No. 68 of 2009, 7 September 2009,
para 18.
[4] (1992) 177 CLR
292.
[5]Castlemaine Tooheys Ltd
v South Australia
(1990) 169 CLR 436 at
473-4.
[6]Australian Capital
Television Pty Ltd v Commonwealth
(1992) 177 CLR
106.
[7] Section 92 of the
Constitution.
[8] See, for example, Qantas Airways Ltd v Gama (2008) 167 FCR 537 (right to just and
favourable conditions of work considered to include the right to work free of
discriminatory comments from workmates); Australian Meat Holdings Pty Ltd v
McLauchlan
(1998) 84 IR 1 (whether dismissal harsh, unjust or unreasonable;
reinstatement to another position on terms and conditions no less
favourable).

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