National Human Rights Consultation - Appendix 1

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Appendix 1 – Recommendations

Appendix 1: Recommendations

Recommendation 1: Australia should promote and protect all human rights in the international human rights treaties to which Australia is a party and the international human rights declarations Australia supports.
Recommendation 2: The Australian Parliament should enact a national Human Rights Act.
Recommendation 3: A Human Rights Act should protect the human rights of all people within Australia’s territory and all people subject to Australia’s jurisdiction.
Recommendation 4: The Australian Government should engage with the states and territories with the objective of creating a uniform system of human rights protection across Australia.
Recommendation 5: A Human Rights Act should include a preamble that:
- specifically recognises the human rights of Indigenous peoples
- highlights that it is the responsibility of government to protect, respect and promote human rights and the responsibility of every person in Australia to respect the human rights of others.
Recommendation 6: A Human Rights Act should protect civil, political, economic, social and cultural rights.
Recommendation 7: A Human Rights Act should contain an interpretive provision that expressly permits courts and other decision-makers to consider international and comparative legal materials when applying the Human Rights Act.
Recommendation 8: Marginalised groups of people, including Indigenous peoples, should be specifically consulted in the development of a Human Rights Act.
Recommendation 9: The human rights set out in a Human Rights Act should not be exhaustive.
Recommendation 10: A Human Rights Act should include a ‘reasonable limits’ provision. Human rights protected by a Human Rights Act should only be subject to such reasonable limits, prescribed by law, as can be demonstrably justified in a free and democratic society. Absolute rights should be exempt from the operation of this provision.
Recommendation 11: Any policy submission put to federal Cabinet (including proposals for new laws, amendments and policies) should be accompanied by a human rights impact statement.
Recommendation 12: Each bill and regulation introduced into the federal Parliament should be accompanied by a human rights compatibility statement.
Recommendation 13: A parliamentary Human Rights Committee should be established to review the compatibility of each bill with the human rights set out in the Human Rights Act.
Recommendation 14: Parliament should be required to review legislation within a specified time if the pre-legislative scrutiny process is bypassed.
Recommendation 15: All federal legislation should be interpreted in a way that is consistent with the rights identified in the Human Rights Act, so far as it is possible to do so consistently with the purpose of that legislation.
Recommendation 16: The obligation to interpret laws consistently with human rights should apply to everybody interpreting and applying federal legislation, including courts and public authorities.
Recommendation 17: If a federal court found that it could not interpret a federal law in a way that was consistent with the rights identified in the Human Rights Act, a statutory process should apply to bring this finding to the attention of federal Parliament and require a government response.
Recommendation 18: A Human Rights Act should give courts the power to invalidate subordinate legislation.
Recommendation 19: The definition of ‘public authority’ in a Human Rights Act should include private organisations when they are performing public functions on behalf of government.
Recommendation 20: Parliament and courts should be excluded from the definition of ‘public authority’ except when acting in an administrative capacity.
Recommendation 21: A Human Rights Act should make it unlawful for a public authority to:
- act in a way that is incompatible with human rights
- fail to give proper consideration to human rights in decision-making.
Recommendation 22: All federal government agencies should take steps to ensure that they respect the human rights set out in the Human Rights Act by:
- engaging in human rights training and education programs
- preparing internal human rights action plans
- reporting annually on compliance with the Human Rights Act.
Recommendation 23: The Australian Public Service Values and Code of Conduct should articulate the responsibility of the public sector to respect human rights.
Recommendation 24: A Human Rights Act should provide an independent cause of action against public authorities for a breach of their obligations under the Human Rights Act.
Recommendation 25: A Human Rights Act should provide remedies for breaches of civil and political rights and breaches of economic, social and cultural rights.
Recommendation 26: A Human Rights Act should provide access to the complaint handling section of the Commission for individuals alleging a breach of the human rights set out in the Human Rights Act.
Recommendation 27: A Human Rights Act should permit a court to make such orders as it considers appropriate if a public authority has breached human rights, including orders requiring action, injunctions and damages where necessary.
Recommendation 28: A Human Rights Act should include broad standing provisions that enable claims to be brought on behalf of a person who is an alleged victim of a breach of human rights.
Recommendation 29: A Human Rights Act should be clear, accessible and accompanied by a broad community education program.
Recommendation 30: The operation and implementation of a Human Rights Act should be subject to periodic independent review.
Recommendation 31: The Commission should have the following functions and powers under a Human Rights Act:
- a function of promoting public awareness and understanding of the Human Rights Act
- a discretionary, self-initiated power to examine whether laws and bills are compatible with the human rights protected by the Human Rights Act
- a function of investigating and conciliating complaints of alleged breaches of human rights by public authorities under the Human Rights Act
- power to intervene, without seeking leave, in court or tribunal proceedings involving the interpretation or application of the Human Rights Act
- power to notify the Attorney-General, either of its own motion or at the request of a party to the relevant proceedings, if a court finds that it cannot interpret a law consistently with the Human Rights Act
- a discretionary, self-initiated power to review the policies and practices of public authorities to assess their compliance with the Human Rights Act
- a function of preparing an annual report on the operation of the Human Rights Act.
Recommendation 32: If the Commission is granted new functions under a Human Rights Act, the Australian Government must ensure that sufficient additional resources are provided to the Commission to enable it to carry out those functions.
Recommendation 33: The Australian Government should refer to the Australian Law Reform Commission for inquiry and report the question of how best to strengthen, simplify and streamline federal anti-discrimination laws.
Recommendation 34: Indigenous peoples should be recognised in the preamble to Australia’s Constitution.
Recommendation 35: The Australian Government should begin a process of constitutional reform to protect the principle of equality for all people in Australia:
- section 25 should be removed from the Constitution
- the Constitution should be amended to guarantee racial equality and proscribe discrimination on the basis of race
- there should be a comprehensive national inquiry considering:
  - the exact wording of a constitutional clause to protect the right to equality
  - the extent to which specific grounds of protection should be included
  - whether the clause should include any possible limitation.
Recommendation 36: The Australian Government should resource a significantly enhanced nation-wide human rights education program.
Recommendation 37: The Australian Government should enhance the powers, functions and funding of the Australian Human Rights Commission, particularly if a Human Rights Act is adopted. Any new functions should be accompanied by appropriate funding.
Recommendation 38: The Commission’s existing functions and powers should be enhanced as follows:
- The Commission’s power to examine bills for their compatibility with human rights should be a discretionary, self-initiated power. When the Commission examines a bill or law and reports to Parliament, the Attorney-General should be required to table the Commission’s report as well as a government response within a specified time period.
- The Commission should have the power to intervene, as of right, in cases that raise significant human rights issues.
- The Attorney-General should give consideration to declaring the following instruments under section 47(1) of the HREOC Act:
  - ICESCR
  - CAT
  - Declaration on the Rights of Indigenous Peoples.
- The Commission’s inquiry function under the HREOC Act should be broadened to empower the Commission to inquire into human rights issues or concerns regardless of where in Australia they occur or whether they occur under a state, territory or federal law.
- For reports prepared by the Commission under one of its statutory functions and subsequently tabled in federal Parliament, the Attorney-General should be required to table a response in Parliament within a fixed period indicating how the government intends to address the Commission’s recommendations. This would include:
  - reports prepared by the Commission after conducting an inquiry under section 11(1)(f) of the HREOC Act
  - the annual Social Justice Report and Native Title Report, prepared by the Aboriginal & Torres Strait Islander Social Justice Commissioner
  - reports prepared by the Commission and tabled in Parliament under any new statutory functions granted to the Commission under a Human Rights Act.
Recommendation 39: If a complaint under the HREOC Act cannot be conciliated, the complainant should be able to commence proceedings in the Federal Court or the Federal Magistrate’s Court.
Recommendation 40: The Australian Government should invest adequate resources in ensuring that the Commission can fully and effectively carry out its statutory education functions.
Recommendation 41: The Australian Government should provide adequate resources in order to ensure that the Commission can fully and effectively carry out its current statutory functions.