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).