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Submission to National Human Rights Consultation (2009)

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Friday 14 December, 2012

National Human Rights Consultation

Australian Human Rights Commission
Submission

June 2009

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Table of Contents

PART A: Which human rights should be protected and promoted in Australia?

PART B: Are human rights currently sufficiently protected and promoted in Australia?

PART C: How could Australia better protect and promote human rights?

Appendix 1: Recommendations

Appendix 2: Further specific measures that would better protect human rights in
Australia

Appendix 3: Statement of Constitutional Validity of an Australian Human Rights Act

Appendix 4: What legal mechanisms protecting human rights exist in other
jurisdictions?

Appendix 5: Australian Human Rights
Commission activities during the National Human Rights Consultation

Appendix 6: Summary of Commission
workshops for children and young people


1 Introduction

  1. The Australian Human Rights Commission (the Commission) welcomes the
    opportunity to make this submission to the National Human Rights Consultation
    (the Consultation).

  2. The Commission is Australia’s national human rights institution, with
    23 years of experience promoting and protecting human rights in Australia.

  3. The Consultation provides the first ever Australia-wide consultation about
    protecting and promoting human rights. This broad-based consultation process is
    a good example of participative democracy – people throughout Australia
    have been given an opportunity to tell the Australian Government how they want
    their human rights protected.

  4. The Commission acknowledges that there is a significant divergence of views
    about the appropriate mechanisms for protecting human rights in Australia. The
    Consultation Committee has been asked to ‘consult broadly’, to
    ‘seek out the wide range of views held by the community about the
    protection and promotion of human rights’ and to ‘provide an
    assessment of the level of community support for each option it
    identifies’.

  5. Genuine and broad-based support for the better protection of human rights in
    Australia is the first step towards creating a vibrant human rights culture
    across the country. Consequently, the Commission sees this consultation process
    as critical in moving towards enhanced human rights protections for all people
    in Australia.

  6. The Commission’s long experience working on human rights issues places
    it in a unique position to offer recommendations about the most appropriate
    mechanisms for better protecting human rights in Australia.

  7. The Commission has consulted directly with Australians about their human
    rights concerns for over two decades. This includes, for example, people from
    vulnerable communities including Aboriginal and Torres Strait Islander peoples,
    people with a disability and people who are homeless. It also includes
    ‘ordinary’ Australians from a broad cross-section of the community,
    including women from all walks of life and people who live in rural and remote
    Australia.

  8. Overwhelmingly, the Commission hears that Australians care about their
    fundamental human rights and think that there should be better protection of
    these rights.

  9. In light of all the Commission’s experience and after careful
    consideration, the Commission has come to the view that a better developed
    culture of respect for human rights is essential to improved human rights
    protection in Australia. The Commission believes that a number of measures must
    be taken to achieve this cultural change – and that the centre-piece of
    these measures should be a Human Rights Act which requires each of the three
    branches of government to integrate consideration of human rights into its
    everyday work.

  10. Australia played a significant role in drafting the Universal Declaration
    of Human Rights
    in the 1940s. Now, over 60 years later, it is time to make
    these human rights real for all people in Australia. It is time to bring human
    rights home.

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2 Summary

  1. Australia’s strong traditions of liberal democracy, an independent
    judiciary and a robust media have been sufficient to protect the rights and
    freedoms of most people in Australia, most of the time. However, not all people
    in Australia can be confident of enjoying this protection in respect of all
    aspects of their lives all of the time.

  2. Australia needs a system of government that makes sure that all people, no matter who they are, what they do, or where they live, have a safety
    net to protect their fundamental human rights.

  3. All people in Australia should be able to name the human rights that the
    Australian Government has pledged to protect; and they should understand their
    responsibility to respect the rights of others.

  4. A stronger human rights culture will build respect for the human dignity,
    freedom and equality of all people in Australia.

  5. This submission addresses the following key questions.

Part A
– Which human rights should be protected and promoted in
Australia?

  1. The Commission believes that Australia should protect and promote all human
    rights in the international human rights treaties to which Australia is a party
    and the international human rights declarations Australia supports.

  2. Many of the human rights in international instruments the Australian
    Government has agreed to uphold have not yet been implemented in Australia. This
    should change. Australia should live up to its international commitments by
    ensuring that human rights standards are brought into domestic
    law.

Part B - Are human rights currently sufficiently protected
and promoted in Australia?

  1. In the Commission’s view, human rights are not sufficiently protected
    and promoted in Australia at present. Most of the international human rights
    instruments that Australia has promised to uphold are not recognised in
    Australian law. There is no single place in Australian law where people can find
    a clear statement of the rights which are recognised by that law.
    Furthermore:

    • the Australian Constitution does not fully protect human rights
    • Parliament can make laws that breach human rights without providing explicit
      justification
    • human rights can be overlooked in law and policy development processes
    • the common law does not adequately protect human rights
    • administrative decisions may breach human rights
    • Australia does not always provide effective remedies for human rights
      breaches
    • the Australian Human Rights Commission’s human rights protection
      functions are limited and its funding base is inadequate
    • anti-discrimination laws do not protect all human rights or prohibit all
      types of discrimination
    • resources for human rights education are seriously inadequate.

Part C - How could Australia better protect and
promote human rights?

  1. A good system of human rights protection involves consideration of human
    rights at all levels, and by all branches of government, with the aim of
    preventing human rights violations. It also involves providing enforceable
    remedies for people whose human rights are breached.

  2. The building blocks of such a system include:
    • a 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
    • all people in Australia being aware of their human rights and their
      responsibility to respect the rights of others.
  3. The Commission believes that the following key measures would help to create
    a better system of human rights protection in Australia:

    • a national Human Rights Act
    • strengthened and streamlined federal anti-discrimination laws which extend
      the grounds of prohibited discrimination and promote equality
    • constitutional reform to
      • recognise Indigenous peoples in the preamble to the Australian
        Constitution
      • remove racially discriminatory provisions from the Australian
        Constitution
      • replace discriminatory provisions with a guarantee of equality and
        non-discrimination
    • a significantly enhanced national program of human rights education
    • enhancing the role of the Australian Human Rights Commission to support the
      better promotion and protection of human rights, and ensuring adequate funding
      for the Commission to fulfil that role.
  4. In making the key recommendation that a national Human Rights Act should be
    adopted, the Commission respectfully acknowledges the range of views about the
    best way to protect and promote human rights in Australia. Alternative arguments
    include, but are not limited to:

    • the argument for a constitutionally entrenched bill of rights
    • the argument for a stronger form of statutory human rights protection
    • the argument that our current system of government provides adequate
      protection for human rights and that no specific human rights law is necessary
      or desirable.
  5. The Commission has carefully considered these alternatives and has engaged
    in many discussions about the pros and cons of the various models. Ultimately,
    the Commission has come to the view that the best way to protect and promote
    human rights is through a national Human Rights Act, similar to the model used
    in the United Kingdom, New Zealand, Victoria and the Australian Capital
    Territory.

  6. The Commission believes that such a Human Rights Act would ensure that
    relevant human rights are considered every time a government law, policy or
    other decision is made. In this way, a Human Rights Act would help promote the
    development of a culture of respect for human rights, thus helping to prevent
    human rights breaches before they occur, and introduce greater transparency and
    accountability into our system of government.

A Human Rights Act
would be an exercise of parliamentary supremacy

  1. A national Human Rights Act should make sure that Australian Government
    decision-making respects human rights, while ensuring that parliamentary
    supremacy is preserved.

  2. Enacting a Human Rights Act would, in itself, be fundamentally democratic.
    It would be Parliament deciding how it believes human rights should be
    protected, promoted and respected in Australia. It would be Parliament deciding
    how its own processes and those of the executive and the courts should be
    altered to achieve that human rights protection.

A Human Rights
Act should bring human rights into parliamentary law-making processes

  1. A Human Rights Act should require the federal Parliament to consider human
    rights when it makes new laws:

    • each bill introduced into Parliament should be accompanied by a human rights
      compatibility statement
    • 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
    • Parliament should be required to publicly explain a decision to adopt a law
      that is inconsistent with the Human Rights Act.

A Human
Rights Act should bring human rights into government decision-making
processes

  1. A Human Rights Act should require the Australian Government to respect human
    rights when developing policy, making decisions and delivering services:

    • all Cabinet submissions should be accompanied by a Human Rights Impact
      Assessment
    • all federal public authorities should respect the human rights set out in
      the Human Rights Act by

      • considering and respecting human rights when they make decisions
        and set policies
      • preparing internal Human Rights Action Plans
      • reporting annually on compliance with the Human Rights Act
      • ensuring that public servants receive adequate human rights
        training.
  2. It should be 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.

A Human Rights Act should bring human rights into the
courts

  1. Federal courts and tribunals should be required to interpret legislation, as
    far as it is possible to do so consistent with the statutory purpose, in a
    manner that is consistent with the human rights in the Human Rights Act.

  2. There should be a mechanism to alert Parliament when a court finds that a
    law cannot be interpreted consistently with human rights. It would then be up to
    Parliament to consider the future of that law. The courts would not have the
    power to invalidate legislation.

A Human Rights Act should
provide remedies for breaches of human rights

  1. A Human Rights Act should provide ways for individuals whose human rights
    have been breached to seek remedies. These remedies should include:

    • internal complaint handling mechanisms within federal public
      authorities
    • conciliation of complaints by the Australian Human Rights Commission
    • a cause of action in the courts
    • the right to seek reparations, including compensation where necessary and
      appropriate.

A Human Rights Act should be accompanied
by a national Equality Act

  1. Australia has a thirty year history of anti-discrimination legislation.
    However, there remain key grounds of discrimination which are not prohibited in
    federal anti-discrimination laws, for example discrimination on the basis of
    sexuality. Further, current anti-discrimination laws are inconsistent in their
    approach.

  2. Australia’s federal anti-discrimination laws should be modernised and
    harmonised. In principle the Commission supports the enactment of a single
    Equality Act. However, due to the complexity of this task, there should be an
    extensive inquiry about how best to provide statutory protection of equality in
    a manner that minimises concerns that a single Act will lose the focus on
    discrimination for particular groups within society. Special purpose
    Commissioners should be retained.

A Human Rights Act should be
accompanied by constitutional protection of equality for all people in
Australia

  1. Although this submission focuses on a Human Rights Act, such legislation
    alone will not be enough to fully protect and promote human rights in
    Australia.

  2. The Australian Constitution continues to discriminate on the basis of race.
    This is unacceptable. The Australian Government should initiate a process of
    constitutional reform to ensure the constitutional protection of equality and
    non-discrimination, as soon as possible.

A Human Rights Act
should be accompanied by a strong human rights education program

  1. For Australia to develop a robust human rights culture, all people in
    Australia need to better understand their human rights and their responsibility
    to respect the rights of others. This includes parliamentarians, court
    officials, public servants, private sector workers, students in both schools and
    universities and members of the general public.

  2. Currently, human rights education efforts are ad hoc and inadequate. There
    is an urgent need for a properly resourced national human rights education
    program.

The role of the Australian Human Rights Commission
should be enhanced

  1. The Australian Human Rights Commission has over two decades of expertise in
    the protection and promotion of human rights in Australia. If Australia adopts a
    Human Rights Act, the Commission is the appropriate body to assist with the
    Act’s implementation and to monitor its effectiveness. In particular, the
    Commission should be charged with investigating and conciliating a broader range
    of human rights complaints.

  2. However, regardless of whether Australia adopts a Human Rights Act, there is
    a range of ways in which, if properly resourced, the Commission’s
    functions could be strengthened to ensure better protection and promotion of
    human rights. Strengthening the Commission would also lead to an enhanced
    ability to address systemic discrimination and build substantive equality.

  3. The Commission at present is not adequately funded. It needs to be properly
    resourced to carry out its existing functions and any additional functions would
    need to be accompanied by adequate funding.

A Human Rights Act
will not work in isolation of other measures

  1. None of these measures will work in isolation. For there to be a real and
    lasting improvement to human rights protection in Australia, all of these
    reforms should be implemented.

  2. The cumulative impact of these reforms will be the development of a stronger
    human rights culture in Australia. This will lead to a fairer Australia, where
    the human dignity, freedom and equality of all people are better respected.

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3 Recommendations

  1. The Australian Human Rights Commission makes the following key
    recommendations to the Consultation:

    1. The Australian Parliament
      should enact a national Human Rights Act.
    2. 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.
    3. The Australian Government should begin a process of constitutional reform
      to protect the principle of equality for all people in Australia.
    4. The Australian Government should resource a significantly enhanced
      nation-wide human rights education program.
    5. 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.

  2. Further recommendations are made throughout this submission. A full list of
    recommendations is provided in Appendix 1.

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PART
A: Which human rights should be protected and promoted in
Australia?

4 Introduction

  1. The Consultation Committee has focused on three key questions. The first
    asks which human rights (including corresponding responsibilities) should be
    protected and promoted in Australia.
  2. The Commission’s answer to that question is that Australia should
    protect and promote all human rights in the international human rights treaties
    to which Australia is a party and the international human rights declarations
    Australia supports.
  3. Many of the human rights in international instruments the Australian
    Government has agreed to uphold have not yet been incorporated into Australian
    law. This should change. Australia should live up to its commitments by ensuring
    that the human rights standards to which it has agreed internationally are
    implemented domestically.
  4. This section provides a fuller answer to the Consultation Committee’s
    first question by providing brief background on: what human rights and
    responsibilities are; where human rights come from; and Australia’s
    international human rights obligations.

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5 What
are human rights?

5.1 Human
rights are core human values

  1. Human rights are the basic standards of treatment that all people are
    entitled to, simply because they are human. They are based on the fundamental
    belief that all human beings have inherent dignity and worth.

  2. Human rights are based on core values like freedom, equality, dignity and
    respect. They are about living a life free from fear, harassment and
    discrimination. They protect people’s freedom to make choices about their
    own lives, and they promote equal opportunities for all people to develop to
    their full potential.

  3. Equality is one of the most fundamental values underpinning human rights.
    Equality is a fundamental right in itself – all people have a right to be
    equal before the law and to be protected from discrimination on any ground such
    as race, colour, sex, language, religion, political or other opinion, national
    or social origin, property, birth or other
    status.[1] In addition, all people are entitled to enjoy all of their other human rights
    without
    discrimination.[2]

5.2 Human
rights are universal and inalienable

  1. Human rights are universal – they apply to everyone, everywhere, every
    day. All people are entitled to enjoy the same basic rights regardless of who
    they are, what they look like, where they come from or what they believe
    in.

  2. The international community has long recognised that the enjoyment of human
    rights and fundamental freedoms is an essential element of a peaceful society.
    As acknowledged by the Universal Declaration of Human Rights (the
    Universal Declaration), the ‘recognition of the inherent dignity and of
    the equal and inalienable rights of all members of the human family is the
    foundation of freedom, justice and peace in the
    world’.[3]

5.3 Human
rights are indivisible and interdependent

  1. Human rights are often divided into two broad categories – civil and
    political rights, and economic, social and cultural rights. However, in practice
    this is an artificial distinction.
  2. In reality, human rights are indivisible and interdependent. The realisation
    of all human rights is necessary for an individual to live with dignity and to
    enjoy equality. Many civil and political rights cannot be realised unless
    economic, social and cultural rights are also secured.
  3. For example, if a person does not enjoy their economic right to adequate
    food, their civil right to life will be undermined. Or, if a person does not
    enjoy their economic right to adequate housing, they might have difficulty
    enjoying various civil and political rights including the right to privacy and
    the right to vote.
  4. In the Commission’s experience, many of the most pressing human rights
    concerns facing people in Australia relate to economic, social and cultural
    rights. These include access to adequate health care, education and housing. And
    the restriction of these rights is often linked to civil and political rights
    like the right to non-discrimination.
  5. The need for better protection to ensure the progressive realisation of
    economic, social and cultural rights in particular is discussed in more detail
    in section 20.5 of this submission.

5.4 Human
rights come with responsibilities

  1. It is important to recognise that, just as all people are entitled to enjoy
    all human rights, all people also have responsibilities to respect the rights of
    others.
  2. This is recognised in the Universal Declaration, which calls on every
    individual in society to promote respect for human rights and
    freedoms.[4] It is also recognised in
    key human rights treaties, which note that individuals have duties to other
    individuals and to their community, and have a responsibility to strive for the
    promotion and observance of human rights.[5]
  3. These responsibilities are not binding legal obligations on individuals.
    Nonetheless, respecting the rights of others is a fundamental civic duty. It is
    important to promote the awareness and exercise of these responsibilities in
    Australia.

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6 Where
do Australia’s human rights obligations come from?

  1. Australia as a nation state has a broad range of international human rights
    obligations. These obligations exist because Australian Governments have, over
    the past sixty years, voluntarily agreed to become a party to various
    international human rights instruments, as outlined below.

6.1 Seven
major human rights treaties

  1. Australia is a party to seven of the major international human rights
    treaties, as
    follows:[6]
Major human rights treaties
Australia adopted
International Convention on the Elimination of All Forms of Racial
Discrimination
(CERD)[7]
1975
International Covenant on Economic, Social and Cultural Rights (ICESCR)[8]
1976
International Covenant on Civil and Political Rights (ICCPR)[9]
1980
Convention on the Elimination of All Forms of Discrimination against
Women
(CEDAW)[10]
1983
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
(CAT)[11]
1989
Convention on the Rights of the Child (CRC)[12]
1991
Convention on the Rights of Persons with Disabilities (Disability
Convention)[13]
2008
  1. The two core treaties, adopted by the United Nations (UN) General Assembly
    in 1966, are the ICCPR and the ICESCR.
  2. The ICCPR protects a broad range of civil and political rights. Many of
    these aim to ensure that all people are able to participate in public and
    political affairs – for example, the right to vote and to run for
    election, and freedom of speech, association and assembly. Other rights aim to
    protect people’s physical liberty and safety – for example, the
    right to life and to be free from torture, freedom of movement, freedom from
    arbitrary detention, and the right to a fair trial.
  3. The ICESCR creates obligations on government to progressively realise a
    diverse range of economic, social and cultural rights. Many of these relate to
    the basic necessities people need in order to lead a healthy and dignified life
    – for example, the right to adequate shelter, food and clothing and the
    right to adequate health care. Others aim to ensure that all people can develop
    to their full potential and have access to economic opportunities – for
    example, the rights to a basic education, to work, and to fair and safe
    conditions at work.

6.2 Other
human rights treaties

  1. Australia is also a party to a number of other international treaties
    relating to human rights, including the
    following:
Other human rights treaties
Australia adopted
Convention on the Prevention and Punishment of the Crime of
Genocide
[14]
1949
Convention relating to the Status of
Refugees
[15]
1954
Supplementary Convention on the Abolition of Slavery, the Slave Trade,
and Institutions and Practices Similar to
Slavery
[16]
1958
Protocol relating to the Status of
Refugees
[17]
1973
Convention relating to the Status of Stateless
Persons
[18]
1973
Convention on the Reduction of
Statelessness
[19]
1973
Convention concerning Discrimination in respect of Employment and
Occupation
(ILO
No.111)[20]
1973
Optional Protocol to the International Covenant on Civil and Political
Rights
[21]
1991
Second Optional Protocol to the International Covenant on Civil and
Political Rights, aiming at the abolition of the death
penalty
[22]
1991
Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed
conflict
[23]
2006
Optional Protocol to the Convention on the Rights of the Child on the
sale of children, child prostitution and child
pornography
[24]
2007
Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against
Women
[25]
2008
  1. Australia has signed but not yet ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman
    or Degrading Treatment or
    Punishment.
    [26]
  2. There are some international human rights agreements that Australia has not
    yet ratified, including the following:

    • Optional Protocol to the Convention on the Rights of Persons with
      Disabilities
      [27]
    • Optional Protocol to the International Covenant on Economic, Social and
      Cultural Rights
      [28]
    • International Labor Organisation Convention
      169.
      [29]

6.3 International
human rights declarations

  1. Australia has expressed support for a number of international declarations
    relating to human rights.

  2. Unlike an international treaty, a declaration does not create binding legal
    obligations. However, declarations do carry significant political and moral
    weight because they are adopted through agreement by the international
    community. They therefore act as key standard-setting documents. Or, in some
    cases, they codify existing standards.

(a) The Universal
Declaration of Human Rights

  1. The most widely supported international human rights declaration is the
    Universal Declaration, which was adopted by the UN General Assembly in
    1948.[30] Australia played a key
    role in drafting the declaration.

  2. The Universal Declaration has had a profound influence on the development of
    international human rights law. It is globally accepted as a statement of
    fundamental rights which should be enjoyed by all human beings – including
    civil, political, economic, social and cultural rights. Some people argue that
    the Universal Declaration has become so accepted by the international community
    over the past sixty years that it has now become a part of international
    customary law, binding on all
    states.[31]

  3. Under the Universal Declaration, every individual and organ of society is
    called on to promote respect for human rights through teaching and education,
    and through the adoption of national and international measures aimed at
    securing the recognition of the rights in the
    declaration.[32]

(b) The United Nations
Declaration on the Rights of Indigenous Peoples

  1. Another particularly important international declaration is the United
    Nations
    Declaration on the Rights of Indigenous Peoples (Declaration
    on the Rights of Indigenous Peoples), which was adopted by the UN General
    Assembly on 13 September
    2007.[33] Under the previous federal government, Australia voted against the adoption of
    the declaration. On 3 April 2009, the current federal government reversed this
    position and made a formal statement in support of the
    declaration.[34]

  2. The declaration does not ‘create’ new rights. Rather, it
    elaborates existing human rights as they apply to Indigenous peoples. It affirms
    that:

    Indigenous peoples have the right to the full enjoyment, as a
    collective or as individuals, of all human rights and fundamental freedoms as
    recognized in the Charter of the United Nations, the Universal Declaration of
    Human Rights and international human rights
    law.[35]

(c) Other human rights
declarations

  1. Australia also supports a range of other international declarations relating
    to human rights, including the following:

    • Declaration on the Elimination of All Forms of Intolerance and of
      Discrimination Based on Religion or Belief
      [36]
    • Declaration on the Rights of Mentally Retarded
      Persons
      [37]
    • Declaration on the Rights of Persons Belonging to National or Ethnic,
      Religious and Linguistic
      Minorities
      .[38]

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7 What
are Australia’s obligations under the major human rights
treaties?

  1. The human rights set out in an international
    treaty do not automatically become part of Australian law because the Australian
    Government becomes a party to that treaty. However, by becoming a party, the
    Australian Government makes a commitment to the international community –
    and is thereafter bound by international law – to protect the treaty
    rights in Australian law and practice.
  2. The major international human rights treaties require the Australian
    Government to take a range of steps to respect, protect, fulfil and promote
    human rights.[39] An overview of the
    key steps is set out below.

7.1 Adopt
laws that protect and promote human rights

  1. All of the human rights treaties require Australia to take concrete
    measures, including changing or adopting laws, to implement the terms of the
    treaty domestically.[40]
  2. For example, in the case of the ICCPR, Australia is obliged to ‘adopt
    such laws or other measures as may be necessary to give effect to the
    rights’ recognised in the
    Covenant.[41]
  3. The UN Human Rights Committee has said this means
    that:

...unless Covenant rights are already protected by their
domestic laws or practices, States Parties are required on ratification to make
such changes to domestic laws and practices as are necessary to ensure their
conformity with the Covenant. Where there are inconsistencies between domestic
law and the Covenant, article 2 requires that the domestic law or practice be
changed to meet the standards imposed by the Covenant's substantive
guarantees.[42]

  1. This obligation to implement domestic protection under the ICCPR is
    unqualified and took effect as soon as Australia became a party. The UN Human
    Rights Committee has said that ‘[a] failure to comply with this obligation
    cannot be justified by reference to political, social, cultural or economic
    considerations within the
    State’.[43]
  2. The obligation to ensure that human rights are respected and protected
    domestically is primarily the responsibility of the federal government. It is
    well established that in federal nations like Australia, this obligation
    includes ensuring protections also apply at the state and territory level. For
    example, Article 50 of the ICCPR states that ‘[t]he provisions of the
    present Covenant shall extend to all parts of federal States without any
    limitations or
    exceptions’.[44]

7.2 Take
administrative, financial, educational and other measures to protect and promote
human rights

  1. In addition to adopting laws that protect and promote human rights, the
    Australian Government is obliged to implement all other appropriate measures
    required to give full effect to the rights recognised in the human rights
    treaties.[45]

  2. For example, in the case of the ICESCR, Australia is obliged to implement
    the Covenant rights using ‘all appropriate means’ including
    legislative, administrative, financial, educational and social
    measures.[46]

  3. The ICESCR is slightly different to the other human rights treaties, in that
    the obligation to implement the rights is expressed in terms of
    ‘progressive
    realisation’.[47] This allows
    for the full realisation of the rights over a period of time and allows for
    resource constraints to be taken into account. However, it still requires the
    taking of ‘deliberate, concrete and targeted’ steps towards
    realising the Covenant rights using all appropriate
    means.[48] The UN Committee on
    Economic, Social and Cultural Rights has also made clear that the ICESCR does
    impose minimum ‘core obligations’ in relation to the rights
    recognised in the Covenant. In relation to the right to health, for example,
    this requires access to health facilities, goods and services on a
    non-discriminatory basis; access to minimum essential food which is
    nutritionally adequate and safe; and access to basic shelter, housing and
    sanitation and an adequate supply of safe and potable
    water.[49]

7.3 Implement
human rights without discrimination

  1. Australia must ensure that it implements all of the rights contained in the
    human rights treaties without
    discrimination.[50]

  2. For example, the Australian Government must ensure that all children within
    Australia’s jurisdiction can enjoy the rights in the
    CRC:

    ...without discrimination of any kind, irrespective of the
    child’s or his or her parent’s or legal guardian’s race,
    colour, sex, language, religion, political or other opinion, national, ethnic or
    social origin, property, disability, birth or other
    status.[51]

7.4 Provide
effective remedies for breaches of human rights

  1. The
    human rights treaties either explicitly or implicitly require Australia to
    ensure that a person has access to effective remedies, including judicial
    remedies, if their rights are
    breached.[52]

  2. According to the UN Human Rights Committee, an ‘effective
    remedy’ requires reparation to the person whose rights have been violated.
    Reparations can ‘involve restitution, rehabilitation and measures of
    satisfaction, such as public apologies, public memorials, guarantees of
    non-repetition and changes in relevant laws and
    practices’.[53]

  3. In the case of the ICESCR, the UN Committee on Economic, Social and Cultural
    Rights has noted that although administrative remedies can sometimes be enough,
    ‘whenever a Covenant right cannot be made fully effective without some
    role for the judiciary, judicial remedies are
    necessary’.[54]

7.5 Report
to international treaty committees on Australia’s progress

  1. Every two to five years (depending on the treaty), Australia must report to
    the UN committee charged with monitoring each major human rights
    treaty.[55]

  2. In those reports, the Australian Government should explain what it has done
    to implement the relevant treaty and what progress has been made in the
    enjoyment of the rights under the
    treaty.[56] The reports should
    include an update on any recent developments in Australian law or
    practice.[57] Reports should also
    respond to issues raised by the relevant UN committee in its concluding
    observations on Australia’s previous
    report.[58]

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.

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PART
B: Are human rights currently sufficiently protected and promoted in Australia?

8 Introduction

  1. The second key question asked by the Consultation Committee is whether human
    rights are currently sufficiently protected and promoted in Australia.
  2. The Commission’s experience has persuaded it that the answer to this
    question is no. While Australia’s laws and democratic institutions provide
    an important level of respect for fundamental rights and freedoms, the
    protection of human rights in Australia is piecemeal, with systemic weaknesses
    and significant gaps.
  3. Many Australians are lucky enough to enjoy most of their human rights
    without interference, most of the time. However, there are appreciable numbers
    of people in Australia whose rights are infringed on a daily basis. And there is
    always potential for people to move from ‘lucky’ to
    ‘unlucky’.
  4. For more than twenty years the Commission has heard from people all around
    Australia about situations where their human rights have not been properly
    protected, and the impacts these experiences have had on their lives and
    livelihoods.
  5. This section of the submission provides a brief overview of some of those
    human rights problems. It then goes on to discuss the underlying causes of those
    problems – the gaps and systemic weaknesses in Australia’s promotion
    and protection of human rights.
  6. The gaps and weaknesses in human rights protection in Australia include the
    following:

    • international human rights treaties have not been adequately incorporated
      into Australian law
    • Australia’s Constitution does not fully protect human rights
    • human rights can be overlooked in law and policy development processes
    • the common law does not properly protect human rights
    • administrative decisions may breach human rights
    • Australia does not always provide effective remedies for human rights
      breaches
    • the Australian Human Rights Commission’s human rights protection
      functions are limited and its funding base is inadequate
    • anti-discrimination laws do not protect all human rights or prohibit all
      types of discrimination
    • resources for human rights education are seriously inadequate.

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9 The
Commission’s experience: examples of insufficient human rights protection
in Australia

  1. For almost 23 years, the Commission has worked towards ensuring that the
    human rights of people in Australia are promoted and protected. This work has
    covered a vast array of issues, and has often been carried out in conjunction
    with stakeholders including government, NGOs, educational institutions,
    community groups, business and the Australian public. The Commission has
    examined numerous laws and policies for their compliance with Australia’s
    human rights obligations, conducted nation-wide inquiries into issues of
    critical concern, listened to the stories of countless Australians, and
    investigated thousands of individual complaints about human rights
    breaches.

  2. On a daily basis, the Commission hears from people in Australia who feel
    that their human rights have been breached. In many cases the Commission is not
    able to offer an effective solution, because its statutory powers are
    limited.

  3. It is often the most vulnerable members of society who are most at risk of
    falling through the gaps in Australia’s human rights protection. The
    following is a very brief snapshot of just some of the ways in which human
    rights are insufficiently promoted and protected in Australia.

    • Aboriginal and Torres Strait Islander peoples: Aboriginal and Torres
      Strait Islander peoples (Indigenous
      peoples)[59] continue to face enormous challenges to enjoying their human rights. Compared to
      non-Indigenous Australians, they experience poorer educational outcomes, higher
      rates of unemployment, lower income levels and lower rates of home ownership;
      while at the same time experiencing higher levels of family violence and child
      abuse, and overrepresentation in
      prisons.[60]
    • Homelessness: Every night more than 100 000 people in Australia are
      homeless. One in every two people requesting accommodation from a homeless
      service is turned away.[61] More
      than 40% of people who are homeless in Australia are younger than
      25.[62] Indigenous peoples are
      particularly vulnerable to homelessness because of their high levels of
      economic, social and cultural
      disadvantage.[63]
    • Domestic violence: As many as one in three Australian women are
      affected by domestic and family
      violence.[64] Nearly one in five
      Australian women has experienced sexual violence since the age of
      15.[65] Domestic violence has been
      identified as the leading contributor to preventable death, disability and
      illness in women aged 15 to 44 in
      Victoria.[66] Further, domestic
      violence is the most common reason cited by individuals seeking assistance with
      Australian housing services.[67] A
      high proportion of women with a disability experience domestic
      violence.[68]
    • Gender inequality: Women experience lower levels of workforce
      participation, take on greater shares of caring responsibilities, and are
      generally paid less for the same work than
      men.[69] In the World Economic
      Forum’s Global Gender Gap Index, Australia is ranked number one (with
      other countries) for educational attainment, but number 41 for labour force
      participation.[70] Australian women
      who work fulltime earn, on average, 16% less than
      men.[71] Women are also more likely
      to be engaged in low paid, casual and part-time
      work.[72] These factors contribute
      to a significant gender gap in retirement
      savings.[73]
    • Children and young people: Young people are often
      ‘moved-on’ from public places where they gather, under laws which
      give police broad powers to ‘move-on’ or detain people in public
      spaces.[74] These powers
      disproportionately impact on young people, especially Indigenous and homeless
      youth. Many children in Australia are subjected to child abuse and neglect or
      are exposed to domestic
      violence.[75] Others are not able to access adequate educational opportunities, particularly
      in rural and remote
      areas.[76]
    • People with disability: People with disability continue to face
      higher barriers to participation and employment than many other groups in
      Australian society.[77] People with
      disability represent a significant proportion of Australia's working age
      population (16.6%), yet they participate in the workforce at lower rates, they
      are less likely to be employed when they do attempt to participate, and they
      will earn less if they do get a
      job.[78] Some people with disability
      face challenges to enjoying their right to vote, given the lack of electronic
      voting for people who are blind or visually
      impaired.[79]
    • People in prison or detention: Some prisoners in Australia face
      difficult conditions due to overcrowding, as well as inadequate health and
      mental health
      care.[80] UN treaty bodies have raised concerns that children are sometimes detained in
      adult correctional facilities.[81] Australia’s mandatory immigration detention law remains in place, and some
      immigration detainees face prolonged and uncertain periods in detention in
      violation of the right to be free from arbitrary detention. In addition, some
      children are still held in Australia’s immigration detention
      facilities.[82]
    • People in rural and remote communities: People living in some remote
      and rural areas in Australia face significant challenges to enjoying their human
      rights, particularly the rights to education and health care, due to lack of
      access to adequate services and facilities. Some communities have little access
      to essential support services such as mental health care, accommodation
      assistance for people who are homeless, and alcohol and drug rehabilitation
      facilities. Access to public buildings for people with a disability is also a
      significant challenge in some rural
      areas.[83]
    • People who are gay, lesbian, bisexual, transgender or intersex
      (GLBTI):
      There is no federal law specifically prohibiting discrimination on
      the grounds of sexuality, sex identity or gender identity. Many GLBTI people in
      Australia still experience significant levels of violence, harassment, bullying
      and discrimination in the workplace and the broader community. Same-sex couples
      do not enjoy equality of rights regarding relationship recognition, including
      civil marriage rights. Some people who are sex and gender diverse face
      difficulties obtaining official documents that accurately reflect their sex or
      gender.[84]
    • People with mental illness: One in five Australians will be affected
      by a mental illness during their lifetime. Many people in Australia with mental
      illness are not able to access prompt and adequate psychological or psychiatric
      care; some have difficulty getting necessary medication; and others face
      challenges accessing adequate accommodation support and welfare benefits. They
      and their families or carers often report being treated with a lack of respect
      and dignity when they seek
      assistance.[85]
    • People from culturally and linguistically diverse backgrounds: Many
      people in Australia face experiences of discrimination, vilification or violence
      because of their ethnic, racial, cultural or linguistic
      background.[86] Over the past few
      years this has been an increasing issue for Arab and Muslim Australians in
      particular, some of whom have been subjected to discrimination, harassment or
      violence.[87] Discrimination against
      Jewish people also remains a problem in
      Australia.[88]
  4. There are many more examples of systemic human rights problems in Australia
    than the ones discussed here. Some further examples are discussed as case
    studies in sections 11 to 18 below; others are addressed in further detail in
    Appendix 2. Undoubtedly, the Consultation Committee’s public consultation
    sessions will have revealed many more stories of individual and systemic human
    rights concerns.

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10 Human
rights treaties have not been adequately incorporated into Australian
law

  1. While some human rights enjoy legal protection in Australia, many aspects of
    the major human rights treaties have not been incorporated into
    Australia’s legal system. The major human rights treaties that Australia
    has agreed to uphold (as discussed in Part A) are not adequately protected in
    Australian law.
  2. Some aspects of the right to equality and non-discrimination (as set out in
    the ICCPR, CERD, CEDAW, ILO No.111 and the Disability Convention) are
    implemented through the four federal anti-discrimination laws – the Racial Discrimination Act 1975 (Cth) (Race Discrimination Act), the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act), the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act)
    and the Age Discrimination Act 2004 (Cth) (Age Discrimination
    Act).[89] However, as discussed in
    section 21 of this submission, those laws do not fully protect the right to
    equality.[90]
  3. The rights contained in a range of treaties and declarations are recognised
    under the Human Rights and Equal Opportunity Commission Act 1986 (Cth)
    (the HREOC Act), either as schedules to
    it[91] or as ‘relevant
    international instruments’ declared under section 47 of the HREOC
    Act.[92] However, this does not make
    those treaties part of Australian
    law.[93] It does mean that the
    Commission has jurisdiction to exercise its human rights functions with regard
    to those treaty rights, but the Commission cannot make binding recommendations
    and cannot enforce remedies for breaches of the rights. Two major treaties
    – the ICESCR and the CAT – are not scheduled to the HREOC Act or
    declared to be ‘relevant international instruments’. Nor are they
    otherwise fully incorporated into Australian
    law.[94]
  4. The UN treaty bodies charged with monitoring implementation of the ICCPR,
    ICESCR, CRC and CAT have each concluded that those treaties have not been
    adequately incorporated into Australia’s legal
    system.[95] In many cases this means that a person in Australia who feels that the
    government has breached their rights under one of those treaties is left without
    an enforceable remedy.
  5. In 2000, the UN Committee on Economic, Social and Cultural Rights expressed
    regret that ‘because the Covenant has not been entrenched as law in the
    domestic legal order, its provisions cannot be invoked before a court of
    law’, and strongly recommended that Australia ‘incorporate the
    Covenant in its legislation, in order to ensure the applicability of the
    provisions of the Covenant in the domestic
    courts’.[96]
  6. In 2009, the same Committee expressed regret that their 2000 recommendation
    had not been implemented, and called for ‘comprehensive legislation giving
    effect to all economic, social and cultural rights uniformly across all
    jurisdictions’.[97]
  7. In 2000, the UN Human Rights Committee raised concerns that, in the absence
    of a constitutional bill of rights or a constitutional provision giving effect
    to the ICCPR, there are gaps in Australia’s protection of the ICCPR rights
    and areas where people are not able to access an effective remedy for a rights
    violation.[98]
  8. In 2009, the same Committee reiterated its concerns and recommended:

    The State party should: a) enact comprehensive legislation giving
    de-facto effect to all the Covenant provisions uniformly across all
    jurisdictions in the Federation; b) establish a mechanism to consistently ensure
    the compatibility of domestic law with the Covenant; c) provide effective
    judicial remedies for the protection of rights under the Covenant; and d)
    organize training programmes for the Judiciary on the Covenant and the
    jurisprudence of the Committee.[99]

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11 Australia’s
Constitution does not fully protect human rights

  1. Contrary to the belief of many
    Australians,[100] the Australian Constitution does not include a bill of rights, and it offers
    only limited protection for a small number of discrete human rights. None of the
    international human rights treaties agreed to by the Australian Government have
    been incorporated into the Constitution.
  2. When the Australian Constitution was written, the drafters were more
    concerned with the rights of the states than with the rights of individuals in
    Australia. One of the key arguments against the inclusion of individual rights
    in the Constitution at federation was that they would ‘usurp the power of
    the States’.[101] Further,
    the drafters were also ‘concerned to maintain the power of colonies, once
    they became the Australian states, to discriminate between people on the ground
    of their
    race’.[102]
  3. At the Constitutional Conventions in the 1890s, there were no Indigenous
    people, women or working men as delegates. Those who drafted the Constitution
    were confident that ‘the protections to individual rights provided by the
    traditions of acting as honourable men were quite sufficient for a civilised
    society’.[103]
  4. As a result, the Australian Constitution provides only limited safeguards
    for individual rights and freedoms. These include:

    • the right to compensation on just terms in the event of a compulsory
      acquisition of property by the
      Commonwealth[104]
    • the right to trial by jury for a federal indictable
      offence[105]
    • the right to challenge the lawfulness of decisions of the Australian
      Government in the High Court[106]
    • a prohibition on making federal laws that establish a religion, impose a
      religious observance or prohibit the free exercise of any
      religion[107]
    • a prohibition on making federal laws that discriminate against a person
      because of the state in which they
      live.[108]
  5. The High Court has found that some rights are implied in the text of the
    Constitution. This includes freedom of expression in relation to public and
    political affairs, commonly referred to as ‘freedom of political
    communication’.[109] This
    right is directed at ensuring that people are free to discover and debate
    matters which enable them to exercise a free and informed choice as
    voters.[110]
  6. The High Court has rejected suggestions that other basic rights, like the
    right to equality, are implied by the text of the
    Constitution.[111] Even for those
    rights that are protected by the Constitution, either expressly or by
    implication, the Australian judiciary has generally interpreted them
    narrowly.[112] The High Court has not supported the proposition that, in cases of ambiguity,
    the Constitution should be interpreted consistently with human
    rights.[113]
  7. Thus, there are many fundamental human rights that the Australian
    Constitution does not protect – the right to life, the right to equality
    and non-discrimination, the right to be free from arbitrary detention, freedom
    of assembly, and the right to be free from torture and cruel or inhuman
    treatment – to name just a
    few.[114]
  8. In combination, these factors mean that the Australian Constitution offers
    very limited protection for human rights, and very limited constraints on the
    ability of the federal Parliament to pass laws that breach human
    rights.

11.1 Example:
Australia’s Constitution does not protect racial equality – the
Northern Territory Emergency Response

  1. The UN Committee on the Elimination of Racial Discrimination has expressed
    concern that there is no entrenched guarantee against racial discrimination in
    Australia.[115]
  2. While the Race Discrimination Act provides some protection against racial
    discrimination, the Australian Constitution does not include protection for the
    right to racial equality. This means the federal Parliament can override the
    legislative protection offered by the Race Discrimination Act and adopt laws
    that discriminate on the basis of race.
  3. The federal Parliament did this in 2007, when it suspended the operation of
    the Race Discrimination Act in order to pass the Northern Territory Emergency
    Response (NTER) legislation. The NTER legislation introduced measures to address
    child sexual abuse and family violence in 73 prescribed Indigenous communities
    in the Northern Territory.
  4. The Commission does not dispute that the Australian Government has an
    obligation to promote and protect the right of Indigenous peoples to be free
    from family violence and child
    abuse.[116] The Commission has
    consistently supported those aspects of the
    NTER.[117] However, the Commission
    does not accept that to take the urgent action necessary to protect the rights
    of children and families, it is necessary to discriminate on the basis of
    race.
  5. The NTER legislation measures that discriminate or allow discrimination on
    the basis of race include:

    • suspending the application of the Race Discrimination Act and allowing
      officials to act in a racially discriminatory way
    • controlling how a person spends their money through income management
      measures, a significant interference with the right to privacy
    • applying parts of the social security legislation retrospectively
    • excluding some aspects of social security administrative decisions from
      review
    • acquiring property on a different basis to other property holders in the
      Northern Territory.
  6. The UN Human Rights Committee criticised the Northern Territory Emergency
    Response as being inconsistent with Australia’s obligations under the
    ICCPR, and expressed particular concern about the suspension of the Race
    Discrimination Act and the lack of consultation with Indigenous peoples in
    designing the NTER measures.[118]

11.2 Example:
Australia’s Constitution did not stop Parliament from making laws that
authorised indefinite detention – the Al-Kateb case

  1. In the 2004 case of Al-Kateb v Godwin, the High Court of Australia
    was asked to decide whether the Migration Act 1958 (Cth) (Migration Act)
    authorises the indefinite detention of an unlawful non-citizen when there is no
    real prospect of his removal from
    Australia.[119] The Court
    found that a law that resulted in a person being held in immigration detention
    indefinitely was constitutionally valid.
  2. Mr Al-Kateb was twenty four when he arrived in Australia by fishing boat,
    without a valid visa. He was taken to Curtin Immigration Detention Centre in the
    Western Australian desert. Mr Al-Kateb’s application for a protection visa
    to stay in Australia was rejected. The Department of Immigration tried to remove
    Mr Al-Kateb without success. Mr Al-Kateb was held in immigration detention for
    years, with no idea when he would be freed.
  3. In the High Court, Mr Al-Kateb argued that the Migration Act should be
    interpreted consistently with Australia’s obligations under the ICCPR,
    which protects the right to liberty and prohibits arbitrary
    detention.[120]
  4. The majority of the High Court found that the words of the Migration Act
    clearly required Mr Al-Kateb to be detained until he could be removed from
    Australia, regardless of the fact that there was no reasonable prospect of this
    happening in the foreseeable future. Because the majority decided the words were
    unambiguous, they did not consider Mr Al-Kateb’s human rights. Justice
    McHugh recognised that the situation was ‘tragic’ but
    said:

    It is not for courts ... to determine whether the course taken
    by Parliament is unjust or contrary to basic human rights. The function of the
    courts in this context is simply to determine whether the law of the Parliament
    is within the powers conferred on it by the
    Constitution.[121]

  5. According to Justice McHugh, the case illustrated that a judge ‘may be
    called upon to reach legal conclusions that are applied with
    “tragic”
    consequences’.[122] This
    observation could also be made about other cases – in the same year as the
    Al-Kateb case, the High Court also upheld the legality of the
    long-term detention of children and confirmed that immigration detention remains
    lawful even if the conditions are harsh or
    inhuman.[123]

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12 Human
rights can be overlooked in law and policy development processes

  1. As mentioned above, the best system of human rights protection is one that
    prevents breaches of human rights occurring in the first place. One of the key
    weaknesses in Australia’s current system is that there are no formal
    mechanisms to ensure that federal ministers, parliamentarians and government
    departments assess the potential human rights implications of laws and policies
    before they are adopted.
  2. Parliament can pass laws that breach Australia’s international human
    rights obligations without even considering those obligations during the
    drafting process, and without public debate or explanation.
  3. The Australian Government can also adopt and implement policy measures
    without considering whether those measures promote and protect the human rights
    Australia has agreed to uphold.
  4. In recent years, these systemic weaknesses have allowed the adoption of laws
    and policies that breach numerous human rights. For example, Australia has
    adopted laws and measures that discriminate against Indigenous peoples in the
    Northern Territory; laws allowing the indefinite detention of people seeking
    asylum; laws discriminating against same-sex couples; and a raft of
    counter-terrorism laws that infringe on fundamental freedoms.
  5. There are various stages of the law- and policy-making process where human
    rights may currently be overlooked, as discussed below.

12.1 Human
rights may be overlooked at the early stages of legislative
development

  1. The Commonwealth Legislation Handbook (the Legislation
    Handbook) describes the procedures for making federal
    laws.[124] It provides a ‘guide for departmental officers and focuses on matters
    which require action by departmental
    officers’.[125]
  2. The Legislation Handbook does not require ministers or their respective
    departments to consider human rights in the law- and policy-making process. This
    means that a new policy can be formulated and approved by a minister, and
    legislation can be drafted without consideration as to whether it complies with
    Australia’s human rights obligations.
  3. The Legislation Handbook does state that the Attorney-General’s
    Department should be ‘consulted on proposed provisions that may be
    inconsistent with, or contrary to, an international instrument relating to human
    rights’.[126] However, since
    ministers and departments are not required to consider human rights in the first
    place, it is unclear how human rights issues will be identified and it is likely
    that they will be overlooked in other than clear cases. Further, the Legislation
    Handbook does not explain what should happen in the event that the
    Attorney-General’s Department does confirm an inconsistency with human
    rights.

12.2 Human
rights may be overlooked by Cabinet

  1. The Legislation Handbook requires Cabinet approval for certain significant
    policy proposals involving
    legislation.[127] However, the
    Handbook ‘does not single out policy proposals with a rights impact for
    Cabinet consideration’.[128] Nor does it require Cabinet submissions to consider how proposals for new
    legislation might impact on human rights.
  2. The federal Cabinet Handbook provides further guidance for
    departmental officers involved with Cabinet
    submissions.[129] However,
    like the Legislation Handbook, this document does not contain any guidance on
    how human rights should be considered in the preparation of Cabinet
    submissions.

12.3 Human
rights may be overlooked when making subordinate legislation

  1. The Legislation Handbook recommends that ‘rules which have a
    significant impact on individual rights and liberties’ and
    ‘provisions conferring enforceable rights on citizens or
    organisations’ should be implemented through primary legislation rather
    than delegated (or subordinate)
    legislation.[130]
  2. The Federal Executive Council Handbook, which sets out procedures for
    making subordinate legislation, contains no specific guidance on how human
    rights should be considered in the drafting and approval of subordinate
    legislation.[131]
  3. Further, the Legislative Instruments Act 2003 (Cth) requires each
    legislative instrument to be accompanied by an explanatory
    statement.[132] However, the list
    of matters that must be addressed in this statement does not include the impact
    of the legislative instrument on human rights.

12.4 Human
rights may be overlooked by parliamentary committees

  1. Parliamentary committees scrutinise government activity including new bills,
    existing laws, and issues of public administration and policy.
  2. There are a number of parliamentary committees with special areas of
    expertise.However, there is no specialist committee focused on
    examining the human rights implications of proposed laws. Further, there is no
    general requirement for other specialist committees to consider human rights
    during their inquiries, unless their specific terms of reference require them to
    do so. In practice, terms of reference rarely include human rights
    considerations.
  3. The Standing Committee on Regulations and Ordinances and the Scrutiny of
    Bills Committee are governed by the Senate Standing Orders, which require the
    Committees to consider whether regulations, ordinances or bills may
    ‘trespass unduly on personal rights and
    liberties’.[133] However,
    these Committees are given no guidance on which rights and liberties they should
    consider, or how they should determine when those rights can be justifiably
    limited.

12.5 Human
rights may be overlooked in parliamentary debate

  1. Some opponents of stronger legal protections for human rights suggest that
    robust parliamentary debate currently provides sufficient
    protection.[134] However, as
    Professor Hilary Charlesworth has observed, this claim:

    has little
    empirical basis in Australian history: indeed the current operation of the
    Commonwealth Parliament indicates the sharp diminution of the role of the
    legislature in policy development
    generally.[135]

  2. Bills are often debated and adopted by Parliament with little reference to
    the potential impacts on people’s human rights. In some cases,
    parliamentarians and the general public may be unaware of the human rights
    obligations that could be undermined by the proposed legislation. In some cases,
    parliamentarians may be aware, but are not required to explain or justify
    publicly the limitations on rights. In other cases, bills are simply rushed
    through without adequate time to consider or address the potential human rights
    consequences.
  3. Returning to the NTER legislation as an example, it is clear that Parliament
    did not hold an informed and rigorous debate about the serious potential human
    rights implications of the new legislation.
  4. Alan Ramsey described the passage of the NTER legislation – which has
    since had significant impacts on human rights – as follows:

    In
    the House, which met at 12.30pm, Malcolm Thomas Brough, 45, cabinet minister,
    introduced a package of five bills totalling some 700 pages, including
    explanatory memoranda. He began speaking at 12.30. He sat down at 1.51pm after
    reading five speeches end on end, like sausages. It had taken him 10 minutes
    short of two hours just to introduce his five bills. At 9.34 that night it was
    all over.

    That is, the people's house passed Brough's five bills of 600 pages of
    legislative detail just nine hours after the Prime Minister's delegate
    introduced them. Debate had lasted four hours and 16 minutes. Fourteen
    politicians had spoken, including Brough a second time. Thus in a legislature of
    150 MPs, only 13 were allowed only twice as long, collectively, to debate the
    bills as it had taken the minister to read his five speeches introducing
    them.[136]

  5. Similarly, over the past decade, numerous counter-terrorism laws were rushed
    through Parliament without adequate consideration of, or debate about, their
    potential impacts on fundamental rights and
    freedoms.[137]
  6. Both the UN Human Rights Committee and the UN Committee against Torture have
    since raised concerns about aspects of Australia’s counter-terrorism
    laws.[138] The impacts of these
    laws are discussed further in the case study in section 13.3
    below.

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13 The
common law does not properly protect human rights

  1. Some human rights are protected by established common law principles. Other
    human rights have limited protection through certain principles of statutory
    interpretation, as discussed below.
  2. However, many of the human rights the Australian Government has agreed to
    uphold are not protected at all by the common law. And the protection that does
    exist is fragile. Parliament can adopt legislation that overrides the common law
    at any time, without giving due consideration to the human rights implications
    and without having to offer public justification.

13.1 The
common law offers some human rights protections

(a) Some human rights are recognised by the common
law

  1. The common law recognises and protects some fundamental rights and freedoms.
    For example, the right against self incrimination; aspects of the right to a
    fair trial; prohibitions on trespass (which partially protect the right to
    privacy); the right to sue for false imprisonment; a presumption of innocence in
    criminal trials; and a presumption that the standard of proof in criminal cases
    is beyond reasonable doubt.

(b) The development of the common law is influenced
by international human rights

  1. It is possible for the common law to evolve over time to develop stronger
    rights protections, as international human rights law can influence the
    development of the common law. In Mabo (No 2), Justice Gerard
    Brennan said that while the:

    common law does not necessarily
    conform with international law ... international law is a legitimate and
    important influence on the development of the common law, especially when
    international law declares the existence of universal human
    rights.[139]

  2. However, this principle is subject to the somewhat ambiguous qualification
    that the High Court:

    is not free to adopt rules that accord with
    contemporary notions of justice and human rights if their adoption would
    fracture the skeleton of principle which gives the body of our law its shapes
    and internal consistency.[140]

  3. Further, the common law cannot offer protection where common law rights have
    been clearly restricted by legislation. Therefore, as the Hon Michael McHugh has
    observed:

    the development of the common law by an independent
    judiciary by no means provides an adequate safeguard for human rights. It can
    not provide the same level of protection as a national Bill of Rights can
    do.[141]

(c) Courts assume that
Parliament does not intend to breach human rights

  1. In Coco v The
    Queen,
    [142] the
    majority of the High Court said that ‘courts should not impute to the
    legislature an intention to interfere with fundamental rights. Such an intention
    must be clearly manifested by unmistakable and unambiguous
    language’.[143]
  2. This common law principle of statutory interpretation is intended to make
    sure that rights that are traditionally protected by the common law are not
    overridden by legislation unless Parliament has clearly intended to do
    so.[144]

(d) Courts can interpret
ambiguous legislation consistently with human rights

  1. A related common law principle of statutory interpretation is that where a
    law is unclear, courts can give the law a meaning that would comply with
    international law, so far as the language of the statute
    permits.[145] In particular, where
    there is ambiguity, the court should prefer a construction that is consistent
    with and advances Australia’s international treaty
    obligations.[146]
  2. In addition, where the specific legislation gives effect to an international
    treaty by adopting the words of the treaty, these provisions should be
    interpreted using the international jurisprudence relevant to the treaty, unless
    there is a clear contrary intention in the
    legislation.[147]

13.2 Common
law protections can be overridden at any time, without explanation

  1. As discussed above, the common law offers a level of protection for some
    basic rights and freedoms. Although this protection is not comprehensive or
    systematic, the common law is often cited as one of the reasons why
    Australia’s current system of human rights protection is sufficient.
  2. This is simply not the case. Human rights protections offered by the common
    law are extremely vulnerable. Parliament can pass a law that overrides common
    law protections at any time, without having to consider the potential impacts on
    human rights and without public justification. Parliament is restricted only by
    the very limited protections offered by the Australian Constitution (as
    discussed in section 11
    above).[148]

13.3 Example:
Australia’s counter-terrorism laws

  1. Since the terrorist attacks in the United States on 11 September 2001, the
    Australian Government has introduced more than 40 new counter-terrorism laws,
    often without adequate consideration of, or debate about, their potential
    impacts on human rights. Some aspects of these new laws have eroded common law
    protections for fundamental rights and
    freedoms.[149]
  2. For example, the right to personal liberty (freedom from arbitrary
    detention) has been described as ‘the most elementary and important of all
    common law rights’.[150] However, this right has been eroded by recent counter-terrorism laws which have
    introduced novel ways for police and the Australian Security Intelligence
    Organisation (ASIO) to detain people without trial. For example:

    • Detention without charge: The Australian Federal Police (AFP) has the
      power to detain a suspect without charge for 24
      hours.[151] After 24 hours the AFP
      can seek an order from a court to detain the suspect for a further 24 hours.
      These 24 hour caps do not include ‘dead time’, which can include
      time when the suspect is contacting a lawyer, taking meal breaks and
      sleeping.[152] This means that, in
      practice, a person can be detained without charge for much longer periods. In
      2007, Dr Mohammed Haneef was detained for 12 days under this power.
    • Restrictions on movement: The Anti-Terrorism Act (No. 2) 2005 (Cth) gave federal courts the power to issue control orders in response to a
      request from the AFP.[153] Control
      orders can force a person to stay in a certain place at certain times, prevent
      them from going to certain places or talking to certain people, or require them
      to wear a tracking device. Depending on the severity of the restrictions
      imposed, a control order could effectively amount to home detention.
    • Special powers of detention: The Australian Security Intelligence
      Organisation Legislation Amendment (Terrorism) Act 2003
      (Cth) gave ASIO
      special powers to question, or question and detain, a person suspected of having
      information related to an anti-terrorism investigation, even if that person is
      not suspected of a terrorist
      offence.[154] Under these powers,
      a person who is not suspected of a terrorism offence can be detained for up to
      seven days.[155] The grounds for
      detention can be kept secret.[156]
  3. In 2009, the UN Human Rights Committee raised concerns that some provisions
    of Australia’s counter-terrorism laws are incompatible with fundamental
    rights protected by the
    ICCPR.[157] The UN Committee
    against Torture has raised concerns about the new regime of preventative
    detention orders and control
    orders.[158] Both committees have
    criticised the increased powers given to
    ASIO.[159]

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14 Administrative
decisions may breach human rights

  1. Australian laws regularly authorise federal officials and ministers to make
    administrative decisions that can have significant impacts on people’s
    human rights. It would be reasonable to assume that, when making administrative
    decisions, Australian officials will act in accordance with Australia’s
    international human rights obligations.
  2. However, while the High Court has held that the ratification of an
    international treaty creates a legitimate expectation that administrative
    decision-makers will act in conformity with the treaty, this expectation falls
    short of a legal right for the person who is the subject of the decision, and
    the decision-maker is not bound to comply with the
    treaty.[160]
  3. Courts and tribunals can review administrative decisions to ensure the
    decision-maker is acting fairly, within their powers and in accordance with the
    law.[161] However, there is no
    general legal obligation upon a decision-maker to give proper consideration to
    human rights when making a decision.
  4. At the federal level, the Administrative
    Decisions (Judicial Review) Act
    1977 (Cth) (ADJR Act) sets out the
    grounds for judicial review of administrative decisions. Failing to give proper
    consideration to a relevant human right is not a ground of review under the ADJR
    Act.[162]

14.1 Example:
Right to life – the ‘Bali Nine’ and the death
penalty

  1. In 2005, nine young Australians were arrested in Indonesia for their
    involvement in a plan to smuggle heroin from Indonesia to Australia. Before
    their arrest, the AFP provided information to the Indonesian authorities about
    the young men and women who are now known as the ‘Bali Nine’. The
    information was provided in accordance with guidelines which permit the AFP to
    assist police in other countries, even in cases which may attract the death
    penalty.
  2. Representatives of four members of the Bali Nine brought an action against
    the AFP. In Rush v Commissioner of Police, Justice Finn found there was
    no cause of action against the AFP for exposing the members of the Bali Nine to
    the death penalty.[163] The
    judgment confirmed that the AFP can lawfully provide ‘police to
    police’ assistance in circumstances which could result in a person being
    charged with an offence punishable by death. This is despite the fact that
    Australia has abolished the death penalty domestically; is a party to the ICCPR,
    which protects the right to life; and is a party to the Second Optional Protocol
    to the ICCPR, which aims at the abolition of the death penalty
    worldwide.[164]
  3. Three members of the Bali Nine are currently awaiting execution in
    Indonesia.

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15 Australia
does not always provide effective remedies for human rights breaches

  1. As discussed in section 10 above, many aspects of the international human
    rights treaties that Australia has agreed to uphold have not been adequately
    incorporated into Australia’s legal system. In many cases this means that
    a person in Australia who feels that the government has breached their rights
    under one of those treaties is left without an effective remedy.
  2. The Commission provides investigation and conciliation processes to resolve
    complaints about certain human rights issues. However, the UN Human Rights
    Committee has confirmed that these processes cannot be characterised as
    ‘effective remedies’ under the ICCPR because the Commission’s
    recommendations are not
    binding.[165]
  3. In the last decade, an increasing number of people have resorted to making
    human rights complaints to UN treaty bodies because they could not get an
    effective remedy within Australia. In a significant number of cases, treaty
    bodies have found that Australia has breached the human rights of people within
    its jurisdiction.[166] These
    include the following:

    • In Brough v Australia, the UN Human Rights Committee found that the
      conditions of detention of an Aboriginal boy with a mild intellectual disability
      violated the right of persons deprived of their liberty to be treated with
      humanity and respect for their dignity, the right of juvenile offenders to be
      segregated from adults, and the right of all children to special protection
      without discrimination. The boy was held in solitary confinement in an adult
      prison, his clothes and blankets were removed from him, and he was exposed to
      prolonged periods of artificial light. While being detained in these conditions,
      he attempted suicide.[167]
    • In Young v Australia, the UN Human Rights Committee found that an
      Australian law discriminated against same-sex couples, in breach of the right to
      equality before the law. Mr Young had been in a relationship with Mr C for 38
      years. Mr C was a war veteran. When he passed away, Mr Young applied for a
      veteran’s pension under the Veterans’ Entitlements Act 1986 (Cth). The Department of Veterans’ Affairs denied his application on
      the basis that he did not fall within the definition of persons who could be a
      veteran’s ‘dependant’, which covered members of de facto
      couples but not same-sex
      couples.[168]
    • In A v Australia, the UN Human Rights Committee found that the
      immigration detention of a Cambodian man at the Port Hedland detention centre
      for more than four years violated his right to be free from arbitrary detention.
      The Committee also found that Mr A’s right to have the lawfulness of his
      detention reviewed by a court had been breached – although an Australian
      court had found his detention was lawful under the Migration Act, the court did
      not consider his rights under the ICCPR, including his right to be free from
      arbitrary detention.[169]
    • In Coleman v Australia, the UN Human Rights Committee found that
      Australia had violated the right to freedom of expression. Mr Coleman was fined
      for breaching a Queensland by-law which prohibited giving a public address at a
      particular pedestrian mall without a permit. He failed to pay the fine and was
      imprisoned.[170]
  4. In each of these cases, the person whose rights were breached could not
    access an effective remedy within Australia – if they had been able to do
    so, their complaint would not have been admissible to the UN treaty body.
  5. However, even the views of the UN treaty bodies are not enforceable, and the
    Australian Government has often rejected their conclusions and
    recommendations.[171] This means
    that a person’s efforts to seek a remedy for a human rights breach may be
    extremely time-consuming, expensive and ultimately fruitless.

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16 The
Australian Human Rights Commission’s human rights protection functions are
limited

  1. The Australian Human Rights Commission is Australia’s national
    independent human rights institution. The Commission’s ‘human
    rights’ functions are defined in section 11 and Division 3 of Part II of
    the HREOC Act.
  2. Under section 11 of the HREOC Act, the Commission is given the following
    functions:

    • examine laws and proposed laws to assess whether they are consistent with
      human rights, and report the results of the examination to the Attorney-General
    • inquire into acts and practices that may be inconsistent with or contrary to
      human rights
    • promote an understanding and acceptance, and the public discussion, of human
      rights
    • undertake research and educational programs to promote human rights, and
      co-ordinate other such programs undertaken on behalf of the Commonwealth
    • report to the Attorney-General as to the laws that should be made by the
      Parliament, or action that should be taken by the Commonwealth, on matters
      relating to human rights
    • report to the Attorney-General as to the action that needs to be taken by
      Australia in order to comply with the provisions of certain human rights
      instruments
    • publish guidelines for the avoidance of acts or practices done by or on
      behalf of the Commonwealth that would breach human rights
    • intervene, with the leave of the court, in proceedings that involve human
      rights issues
    • do anything incidental or conducive to the performance of any other
      functions.
  3. The Commission is empowered to undertake a broad range of work regarding the
    promotion and protection of ‘human rights’, as defined in the HREOC
    Act. However, in practice the Commission’s ability to properly
    promote and protect human rights is limited for the reasons outlined below.
    (These issues are discussed further in sections 20.15 and 25 of this submission,
    which propose measures to enhance the role of the Commission.)

16.1 The
Commission has limited powers of pre-legislative scrutiny

  1. The HREOC Act provides that the Commission has the power to examine proposed
    laws when requested to do so by the
    Minister.[172] However, in
    practice the Commission has never received such a request. The
    Commission’s role in scrutinising the human rights compatibility of
    proposed legislation is often confined to appearances before parliamentary
    committees.

16.2 The
Commission’s functions are limited by a narrow definition of human rights

  1. The Commission’s human rights functions are limited by the definition
    of ‘human rights’ in the HREOC Act (which includes those rights set
    out in the instruments scheduled to the Act and other designated ‘relevant
    international
    instruments’).[173]
  2. Under the HREOC Act ‘human rights’ means the rights and freedoms
    in:

    • the ICCPR
    • the CRC
    • the Declaration on the Rights of Mentally Retarded Persons
    • the Declaration on the Rights of Disabled Persons
    • the Declaration on the Elimination of all Forms of Intolerance and of
      Discrimination based on Religion or Belief
    • the Disability
      Convention.[174]
  3. This definition does not include the rights protected by other international
    treaties that Australia is a party to, including the ICESCR and the
    CAT.[175]
  4. This means that the Commission cannot inquire into acts and practices that
    may breach the rights set out in those instruments, nor can it review
    legislation to assess its consistency with those rights, except to the extent
    that those rights are also incorporated in other treaties within the
    Commission’s statutory
    mandate.[176]

16.3 The
Commission has limited jurisdiction to investigate human rights
complaints

  1. The Commission’s jurisdiction to investigate human rights complaints
    is limited to acts or practices of the Commonwealth and does not apply to the
    actions of the states or
    territories.[177] This restricts
    the Commission’s capacity to investigate systemic human rights issues
    across Australia.

16.4 The
Commission lacks adequate resources to fulfil its functions

  1. Insufficient funding undermines the Commission’s capacity to fulfil
    its statutory functions, including handling complaints of unlawful
    discrimination and promoting public understanding and acceptance of human
    rights. As outlined in further detail in section 24.8, the Commission has faced
    significant budget cuts since 1996.

16.5 The
Commission cannot enforce its recommendations about human rights
complaints

  1. The HREOC Act provides a right to lodge a complaint with the Commission in
    relation to an act or practice by or on behalf of the Australian Government that
    is alleged to breach a person’s human
    rights.[178]
  2. If the Commission finds a breach of human rights, it can report to the
    Attorney-General. This report can include recommendations for preventing a
    repetition of the act or continuation of the practice, as well as the payment of
    compensation.[179] However, these
    are not enforceable remedies – they are non-binding recommendations which
    are not directly or indirectly enforceable by the courts.
  3. This regime for addressing human rights complaints can be contrasted with
    the regime for resolving complaints of unlawful discrimination. If an unlawful
    discrimination complaint is terminated by the Commission, the complainant can
    commence proceedings in the Federal Court or the Federal Magistrate’s
    Court.

16.6 Commission
reports and recommendations can be ignored by government

  1. The Commission can bring human rights concerns or breaches to the attention
    of the Australian Government through tabling certain reports in Parliament, or
    through other means.
  2. The Australian Government is not, however, required to respond to a
    Commission report which shows that a bill or a law is incompatible with human
    rights, or to recommendations by the Commission that the government should
    provide remedies to an individual victim of human rights violations. This
    undermines the Commission’s ability to create a culture where the
    government is accountable for the impact of its laws, policies and actions on
    human rights.

16.7 Example:
The Commission’s ongoing efforts to end human rights violations in
Australia’s immigration detention system

  1. Some of the obstacles faced by the Commission in holding the Australian
    Government accountable in respect of its international human rights obligations
    are illustrated by the Commission’s repeated efforts to address human
    rights violations caused by Australia’s mandatory immigration detention
    system.
  2. The Commission has investigated numerous complaints of human rights breaches
    in immigration detention over the past 13
    years.[180] In cases where the
    Commission has found there was a breach, a report has been tabled in federal
    Parliament setting out recommendations for redress. While the Australian
    Government is required to table these reports, it is not required to respond. In
    many cases, the Commission’s recommendations have been ignored.
  3. More than a decade ago, the Commission conducted an inquiry into the
    mandatory detention system, which resulted in the 1998 report, Those
    who’ve come across the seas: Detention of unauthorised
    arrivals
    .[181] The Commission
    found that Australia’s mandatory detention policy violated international
    human rights standards, including the right not to be subjected to arbitrary
    detention. The Commission made 94 recommendations about the use of, and
    conditions in, detention and put forward an alternative detention model and a
    range of community release options.
  4. The Australian Government asserted that the mandatory detention policy did
    not breach Australia’s human rights obligations, and did not consider
    implementing the community release options. The government rejected the
    Commission’s recommendations that the lawfulness of immigration detention,
    as interpreted under international law, be subject to judicial review.
  5. In 2004, the Commission released the report of its national inquiry into
    children in immigration detention, A last
    resort?
    .[182] The inquiry found that Australia’s mandatory detention laws and practices
    resulted in numerous and repeated breaches of the CRC. In 2005, the Migration
    Act was amended to affirm the principle that children should only be detained as
    a measure of last resort, and children were gradually released from immigration
    detention centres (IDCs). However, while children are no longer held in IDCs,
    some children are still held in other closed immigration detention facilities,
    both on the mainland and on Christmas Island.
  6. While there have been some key improvements to Australia’s immigration
    detention system over the past few years, many of the Commission’s major
    concerns remain, despite more than a decade of efforts to reform the system.
    Throughout this decade many men, women and children have been detained for
    prolonged periods of time. Australia’s mandatory detention law remains in
    place; the lawfulness of immigration detention is not subject to judicial
    review; there are no legislated standards for conditions in detention; and
    offshore processing of asylum seekers continues on Christmas
    Island.[183] The UN treaty bodies
    have made numerous criticisms about Australia’s mandatory detention system
    and have urged its repeal.[184]

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17 Anti-discrimination
laws do not protect all human rights or prohibit all types of
discrimination

  1. Australia has four federal anti-discrimination laws, which provide some
    important protections against discrimination on the basis of race, sex,
    disability and age.[185]
  2. However, as discussed in further detail in section 21 of this submission,
    there are a number of significant limitations and deficiencies with these laws.
    They fail to offer comprehensive protection against discrimination on the
    grounds of race, sex, disability and age; they do not cover discrimination on a
    broad range of other grounds; and they contain various inconsistencies.
  3. In practice, this means that people are often left without an effective
    remedy for a breach of their right to equality and
    non-discrimination.

17.1 Example:
Discrimination on the grounds of criminal record

  1. Unlike equivalent legislation in the states and territories, federal
    anti-discrimination laws do not provide protection against discrimination on the
    ground of a person’s criminal
    record.[186] While the Commission
    can accept a complaint on this ground under the HREOC Act, it cannot provide an
    enforceable remedy.
  2. The Commission has received numerous complaints over the years from people
    who have been refused employment on the basis of a prior criminal record, which
    is not directly relevant to the job the person is applying for.
  3. For example, in 1991, a man was convicted for receiving stolen goods. He
    completed 200 hours of community service at a police academy in South Australia
    (SA), after which he was employed by the SA Police as a grounds person at the
    academy.
  4. Ten years after his conviction, his position was made redundant and he was
    moved to a security guard position with the Police Security Services Branch,
    where he worked for three months. However, prior to being formally employed in
    the role, the SA Police undertook a criminal record check, as part of its
    standard employment procedures. This check revealed his 1991 conviction and he
    was advised that he would not be offered the security guard position because of
    that criminal record.
  5. The man lodged a complaint with the Commission. The Commission found that he
    had been discriminated against on the basis of his criminal record. There was
    enough evidence available to the SA Police to demonstrate that the man possessed
    the integrity and character required for the job, notwithstanding his criminal
    record. In particular, he had provided ten years of service to the SA Police,
    during which his employment and integrity had been highly praised.
  6. The Commission made recommendations for remedies including compensation, but
    these recommendations were not enforceable under Australian law. To date, the SA
    Police has not informed the Commission that it has complied with any of the
    recommendations.[187]

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18 Resources
for human rights education are seriously inadequate

  1. One of the major gaps in the current protection of human rights in Australia
    is that many people are not aware of what their human rights are, and what
    courses of action are available to them if their rights are
    breached.[188] There is a need for
    significantly enhanced human rights education in the community, in the public
    sector, and in schools and universities.
  2. The need for enhanced human rights education was highlighted by young people
    in various parts of Australia during Commission workshops aimed at encouraging
    broad public participation in the National Human Rights Consultation process.
    (These workshops and the views expressed by young people are discussed further
    in Appendix 5 and Appendix 6.)
  3. The Commission has statutory functions relating to human rights education in
    Australia. These include promoting understanding and public discussion of human
    rights, and undertaking research and educational programs for the purpose of
    promoting human rights.[189] Over
    the years the Commission has developed a wide range of education resources and
    programs.
  4. However, the Commission cannot continue to produce an adequate range of
    materials or adequately distribute them under its current budget. This issue is
    discussed further in section 24.8 of this submission.

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PART
C: How could Australia better protect and promote human
rights?

19 Introduction:
five major reforms to improve human rights protection in Australia

  1. There are a number of ways that human rights could be better promoted and
    protected in Australia. Over the past 23 years, the Commission has recommended
    numerous measures for improving human rights protections for specific,
    vulnerable groups. Some of the major ongoing human rights issues are set out in
    Appendix 2 to this submission.
  2. It is clear from the Commission’s years of experience that, to prevent
    human rights problems from arising, Australia needs to develop a culture of
    greater respect for human rights.
  3. A stronger human rights culture in Australia is unlikely to be achieved
    through ad hoc, piecemeal reform. For all people in Australia to live in a
    community that is truly inclusive and respectful of their rights, no matter who
    they are or what their circumstances, there needs to be overarching, systemic
    changes to the way government, at all levels, considers the human rights of all
    people. There also needs to be greater awareness in the general community of the
    human rights to which we are all entitled and the responsibilities that come
    with them.
  4. The Commission believes that a combination of the following five major
    reforms would help to build a stronger culture of respect for human rights in
    Australia:

    • a national Human Rights Act
    • stronger statutory protection of equality and non-discrimination
    • a referendum to amend the Australian Constitution so that it recognises
      Aboriginal and Torres Strait Islander peoples; removes the existing racially
      discriminatory provisions; and protects equality for all people
    • a significantly enhanced national program of human rights education
    • expanded functions and better resourcing for the Commission, as
      Australia’s national human rights institution.
  5. Any one of these reforms would, in some measure, improve the protection and
    promotion of human rights in Australia. However, the Commission believes that
    each of these reforms would complement and strengthen each other. Together they
    would work to help Australia better live up to its international promises to
    protect human rights.
  6. This part of the Commission’s submission explains each one of these
    five major reforms in further detail, with specific emphasis on the
    Commission’s recommendation for a Human Rights Act for
    Australia.

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20 A
Human Rights Act for Australia

  1. The Commission appreciates that the question of how Australia can best
    protect human rights, and whether Australia should have a Human Rights Act is
    the subject of much debate.
  2. Some believe that only a constitutionally entrenched bill of rights can
    properly protect human rights in Australia. Others believe that our current
    democratic system already properly protects human rights and any interference
    with that system could undermine our democracy.
  3. At the end of this section (in section 20.16) the Commission specifically
    responds to each of the primary arguments against a Human Rights Act.
  4. In the main body of this section, the Commission explains why it believes
    that a Human Rights Act could make a real difference to human rights protection
    in Australia, and how it could be the catalyst for creating a stronger human
    rights culture in the Australian Government and in the Australian
    community.
  5. In particular, the Commission explains how a Human Rights Act could improve
    the enjoyment, protection and promotion of human rights by simultaneously
    strengthening Australia’s human rights culture and Australia’s
    democratic system of government.

20.1 Australia
should have a Human Rights Act

  1. The Commission believes that a Human Rights Act would help to build a
    culture that respects the human rights of all people in Australia, no matter who
    they are.
  2. When Australia signed up to the major international human rights treaties,
    it made a commitment to ensure that Australia’s government would always
    keep in mind the basic rights of every person – whether they were part of
    the majority or a minority in the community.
  3. If the federal Parliament passed a Human Rights Act, it would be a major
    step towards fulfilling Australia’s commitment to protecting human
    rights.
  4. A Human Rights Act would be Parliament’s clear statement of the
    fundamental rights and values to which Australia is committed. The Australian
    Government has already made that statement to the international community; it is
    now time to make it to the Australian community.
  5. A Human Rights Act would set out the human rights that all people in
    Australia are entitled to have protected, and explain that we are all
    responsible for respecting the rights of others.
  6. In this way, a Human Rights Act would be an extremely powerful tool for
    furthering the type of human rights dialogue and education that occurred during
    this Consultation process.
  7. A Human Rights Act would also be Parliament’s commitment to a
    democratic system that provides transparency and accountability in all
    decision-making which might impact on human rights.
  8. Thus, a Human Rights Act could help to create a stronger human rights
    culture throughout government and the community by:

    • requiring government officials to consider human rights at the early stages
      of the development of law and policy (which should help prevent human rights
      problems from arising)
    • requiring Parliament to consider whether new legislation protects human
      rights, and if not, publicly explain any decision to create or maintain such
      legislation (which should help improve transparency and accountability in policy
      and law-making processes)
    • requiring courts to interpret laws consistently with human rights and
      providing remedies where appropriate (while not giving courts the power to
      strike down legislation – Parliament would have the final say)
    • requiring public authorities to consider and respect the human rights of the
      individuals with whom they are dealing when making decisions (which should
      discourage ‘one-size-fits all’ policies and encourage solutions
      appropriate to the diversity of the Australian community)
    • providing solutions and remedies in the event that a public authority
      breaches human rights without legal authority (which might include an accessible
      alternative dispute resolution process, with the option to go to court if a
      complaint cannot be resolved)
    • clearly setting out human rights and the system for protecting them (which
      means that people in Australia would be better informed about government
      decisions that affect their human rights, improving their capacity to actively
      participate in the governmental processes that impact upon them, thus enhancing
      our democracy).

Recommendation 2: The Australian
Parliament should enact a national Human Rights Act.

20.2 A
national Human Rights Act should be based on those in the UK, New Zealand,
Victoria and the ACT

  1. The Commission believes that an adaptation of the model of human rights
    legislation operating in the UK, New Zealand, Victoria and the ACT is the most
    appropriate form of human rights protection for Australia at this
    time.

(a) Why statutory human rights protection?

  1. The Commission recognises that some people argue that Australia should have
    a constitutionally entrenched bill of rights.
  2. However, this option has been excluded from the Consultation
    Committee’s terms of reference. In any event, the Commission is persuaded
    that a statutory form of protection is the most appropriate for Australia at
    this time, for reasons outlined below.
  3. The Commission also notes that the Hon Michael McHugh recently suggested a
    model of statutory protection based on the Canadian Bill of
    Rights.[190] This model would require federal laws to be read subject to the Human Rights Act
    and allow courts to hold that state and territory laws are invalid if they are
    inconsistent with it.[191] The
    model would, however, allow federal Parliament to expressly declare that a law
    could operate notwithstanding the Human Rights Act. Parliament could do this at
    the time the law was first introduced or in response to a court decision with
    which it disagreed.
  4. However, the Commission recognises that there is some community concern
    about the potential role of the courts under a Human Rights Act or a
    constitutionally entrenched bill of rights. It may be that this concern will
    abate as Australia develops an improved human rights culture. Should it do so,
    the question of comprehensive constitutional protection of human rights could
    appropriately be revisited.
  5. The Commission also recognises that many of the reforms to public
    decision-making processes that it proposes could be implemented independently of
    a Human Rights Act.
  6. However, piecemeal reform risks replicating the current gaps in
    Australia’s human rights protections. Further, a Human Rights Act would
    have the overarching benefit of being both a clear statement of human rights all
    people in Australia are entitled to, as well as a guide to the steps that should
    be taken to ensure the protection and promotion of these rights.
  7. Therefore, the Commission believes that Australia should have a Human Rights
    Act based on the model described below, because:

    • This model embeds human rights considerations into all stages –
      including very early stages – of public decision-making. This should help
      prevent human rights problems from occurring.
    • This model creates the type of accountability and transparency in
      decision-making which would strengthen Australia’s democratic system of
      government and build upon our system of checks and balances.
    • This model preserves parliamentary supremacy. It would be a positive action
      taken by Parliament to express its view on how human rights should be protected,
      and to create the system it believes would achieve that purpose.
    • This model provides a clear statement to all people in Australia, and around
      the world, that Australia intends to live up to its international human rights
      commitments.
    • There is precedent for this model in New Zealand, the UK, Victoria and the
      ACT, and the Consultation Committees in WA and Tasmania have both supported this
      model.

(b) The main features of the Human Rights Act
proposed by the Commission

  1. The Human Rights Act model proposed by the Commission would:

    • protect all people within Australia’s territory and all people subject
      to Australia’s jurisdiction
    • protect rights recognised in international human rights treaties to which
      Australia is a party
    • allow rights to be limited and balanced (with the exception of absolute
      rights) in accordance with strict criteria
    • require the government to consider human rights at the early stages of the
      development of law and policy
    • require parliamentary scrutiny of new legislation to ensure that it is
      compatible with human rights
    • require legislation to be interpreted consistently with human rights
    • require Parliament to be notified, and to publicly respond, if a law is
      found to be inconsistent with human rights
    • require public authorities to act in a way that is compatible with human
      rights and to give proper consideration to human rights in decision-making
    • provide for an effective remedy when a public authority breaches human
      rights.
  2. The following sections describe each of these features in more detail and
    explain why they are important for the creation of a strong human rights culture
    in the Australian Government and the Australian community.

20.3 A
Human Rights Act should protect everyone in Australia, without
discrimination

  1. Since human rights apply to all people without discrimination, it is
    important to enact a Human Rights Act that protects all people in
    Australia’s territory and all people subject to Australia’s
    jurisdiction without discrimination.
  2. A Human Rights Act would ideally create a uniform system of human rights
    protection across Australia. However, Australia’s federal structure may
    constrain the achievement of this goal.

(a) A Human Rights Act should protect every person
in Australia’s territory and jurisdiction

  1. The Commission is aware of the concern that a Human Rights Act could have
    the effect of granting extra rights to ‘minorities’ at the expense
    of the ‘majority’.
  2. This is why it is important to reinforce that a Human Rights Act should
    protect all people within Australia’s territory and all people subject to
    Australia’s jurisdiction without
    discrimination.[192]
  3. Overwhelmingly, a Human Rights Act will benefit ordinary people, in their
    everyday interaction with government, by creating a more transparent and
    accountable decision-making system. While some individuals and groups may make
    more use of the legislation than others, this would be because those individuals
    and groups are in greater need of human rights protection than others –
    take, for example, Indigenous peoples who suffer more disadvantage than many
    other groups in Australia.
  4. A Human Rights Act should protect individuals and groups, depending on the
    nature of the rights
    included.[193]
  5. A Human Rights Act should also protect the rights of citizens and
    non-citizens. However it would need to recognise that some rights, such as the
    right to vote, apply only to
    citizens.[194]
  6. A Human Rights Act should not confer human rights on
    corporations.

(b) Ideally, Australia should have uniform
protection of human rights

  1. Under international human rights law, the
    federal government has ultimate responsibility for ensuring that human rights
    protections extend throughout the
    country.[195]
  2. Ideally, human rights should be consistently protected by all federal, state
    and territory governments in Australia.
  3. As illustrated by the different discrimination laws in Australia (see
    section 21), it is very difficult for people to understand what their rights are
    and how they are protected if they are protected in different ways by the
    federal, state and territory governments. Further, many of the human rights
    issues that touch people’s everyday lives are affected by state and
    territory laws and policy.
  4. However, there are practical and political difficulties to achieving uniform
    human rights protection across Australia.
  5. It is constitutionally possible for a national Human Rights Act to bind the
    states to some extent.
  6. Pursuant to the external affairs
    power,[196] federal Parliament
    could introduce a national system of human rights protection that binds federal,
    state and territory governments. It is also constitutionally possible that a
    national Human Rights Act may render inconsistent state laws
    inoperative.[197]
  7. However, it might not be possible to extend all elements of a national Human
    Rights Act to the states, as the Australian Government does not have the power
    to make laws that would undermine the capacity of the states to
    function.[198]
  8. Recognising this limitation, the federal government could introduce a Human
    Rights Act that binds the states to the extent constitutionally possible. The
    Australian Government could then encourage the states to enact their own
    legislation in relation to the outstanding elements (for example, those
    provisions about parliamentary processes).
  9. An alternative approach would be to limit the operation of a national Human
    Rights Act to federal laws and public authorities and encourage the states and
    territories to enter into co-operative arrangements to implement Human Rights
    Acts throughout Australia.
  10. There is some prospect of success with this approach. The ACT and Victoria
    have already introduced specific laws to protect human rights. Western Australia
    and Tasmania have conducted inquiries into human rights protections which
    recommended that these states introduce human rights
    acts.[199]
  11. In the meantime, if a national Human Rights Act does in fact apply only to
    federal laws and public authorities, it should clearly express an intention to
    operate alongside state and territory human rights legislation. A similar
    approach is taken in federal discrimination laws to preserve the operation of
    state and territory anti-discrimination
    laws.[200]
  12. As the Commission’s expertise lies in the federal jurisdiction, this
    submission focuses on the potential beneficial impact of a national Human Rights
    Act upon federal laws and policies, and the actions of federal public
    authorities. However, the Commission recommends that the Consultation Committee
    explore all options for uniform human rights protection across
    Australia.

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.

20.4 A
Human Rights Act should have a principled and inclusive preamble

  1. While it may have limited legal significance, the preamble to a Human Rights
    Act could send a strong symbolic message to the Australian community about the
    importance of human rights.

  2. A preamble to a Human Rights Act could articulate, in plain and simple
    language, the importance of human rights for an inclusive, cohesive and
    democratic society. It could set out the fundamental principles and values that
    underpin the Act. And it could affirm that all people in Australia are entitled
    to enjoy human rights, without discrimination.

  3. A preamble should also specifically recognise the unique status of
    Indigenous peoples as first peoples and acknowledge their human
    rights.[201]

  4. By recognising Indigenous peoples in the preamble to a Human Rights Act, the
    Australian Government would demonstrate a clear commitment to protecting their
    human rights. This is appropriate given the significant and sustained breaches
    of human rights that Indigenous peoples face.

  5. A preamble should also highlight 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.[202]

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.

20.5 A
Human Rights Act should protect civil, political, economic, social and cultural
rights

  1. Since human rights are universal, indivisible and interdependent, it is
    important for a Human Rights Act to protect all of the fundamental human rights
    in the human rights treaties which bind Australia.

  2. In particular, and at a minimum, a Human Rights Act should explicitly
    recognise and protect the civil, political, economic, social and cultural rights
    in the ICCPR and ICESCR.

  3. To take advantage of developments in international human rights law and
    ensure the protection of vulnerable groups, a Human Rights Act should include a
    mechanism to permit the use of more specific treaties and declarations to
    interpret and apply the basic civil, political, economic, social and cultural
    rights to those groups. This would include the treaties and declarations
    focussing on women, children, people with disability, different racial groups
    and Indigenous peoples.

  4. Further, vulnerable groups (including Indigenous peoples) should be
    explicitly consulted in the drafting of a Human Rights Act.

  5. Irrespective of which rights are explicitly mentioned in a Human Rights Act,
    it should be made very clear that those rights are not exhaustive.

  6. Further, the legislation should require periodic review of a Human Rights
    Act, including review of whether the rights set out in the Act should be
    expanded. This would make sure that the document stays current and relevant to
    the community’s needs (see section 20.14).

(a) A Human Rights Act
should include economic, social and cultural rights

  1. The Commission believes that a national Human Rights Act should explicitly
    include economic, social and cultural rights, despite the fact that human rights
    legislation in many other jurisdictions predominately protects civil and
    political rights.

  2. There are several reasons for this view.

  3. First, human rights are universal, interdependent and indivisible. This
    means that the full enjoyment of civil and political rights may be hampered if
    economic, social and cultural rights are not also protected (see section
    5.3).

  4. Secondly, some of the most pressing human rights concerns facing people in
    Australia involve economic, social and cultural rights. If economic, social and
    cultural rights were included in a Human Rights Act, those concerns could be
    better addressed.

  5. Thirdly, the omission of economic, social and cultural rights from a Human
    Rights Act would reinforce a commonly-held misconception that these rights are
    somehow less important than civil and political rights. Including those rights
    in a Human Rights Act would help guide and educate decision-makers on the
    significance of these rights to the lives of people in Australia.

  6. Finally, the independent human rights consultation committees in the ACT,
    Tasmania and Western Australia all recommended that at least some economic,
    social and cultural rights be included in state level human rights
    acts.[203] The UK Human Rights Act
    includes the right to education, and the UK Joint Committee on Human Rights has
    suggested that further economic, social and cultural rights should also be
    protected.[204]

(i) Economic, social and
cultural rights should be explicitly set out in a Human Rights Act

  1. Some people argue that it is possible to protect economic, social and
    cultural rights without explicitly listing them in a Human Rights Act. This is
    because they can be protected indirectly through the interpretation of civil and
    political rights.

  2. For example, civil and political rights such as the right to equality and
    the right to life, liberty and security of the person have been used in Canada
    to protect key economic, social and cultural rights. This includes the right to
    the highest attainable standard of physical and mental
    health,[205] and the right to
    adequate housing.[206]

  3. However, the Commission believes that economic, social and cultural rights
    should be explicitly set out in a national Human Rights Act. The Commission
    shares the concern of the Western Australian Human Rights Act Consultation
    Committee that an indirect approach to protecting economic, social and cultural
    rights ‘would, at best, result in ad hoc and limited protection for some
    of these rights’.[207]

  4. The WA Committee further stated that it is ‘undesirable that the
    protection of ESC rights should depend upon the occurrence of a breach of a
    civil and political right in a context which also involves the enjoyment of an
    ESC right’.[208]

(ii) Courts would not obtain power to make decisions
about policy or resource allocation

  1. Some people are concerned that explicit protection of economic, social and
    cultural rights in a Human Rights Act might transfer power over resource
    allocation and policy-making from Parliament to the courts.

  2. The Commission believes that a Human Rights Act can be drafted to ensure
    that courts take the principle of ‘progressive realisation’ into
    account when making decisions in relation to economic, social and cultural
    rights.

  3. For example, the South African Constitution explicitly protects economic,
    social and cultural rights. In South Africa, the government is obliged to
    ‘take reasonable legislative and other measures, within its available
    resources, to achieve the progressive realisation’ of the rights to health
    care services, sufficient food and water, social security and adequate
    housing.[209]

  4. In considering these rights, South African courts do not make policy.
    Instead, the role of the courts is limited to assessing whether the measures
    taken by the government are reasonable. The courts:

    will not
    enquire whether other more desirable or favourable measures could have been
    adopted, or whether public money could have been better spent. ... It is
    necessary to recognise that a wide range of possible measures could be adopted
    by the state to meet its obligations. Many of these would meet the requirement
    of reasonableness.[210]

  5. A Human Rights Act could be similarly drafted to avoid requiring courts to
    make judgments that should properly be left to government. In particular, the
    principle of ‘progressive realisation’ should be a relevant factor
    when assessing the reasonableness of limitations upon economic, social and
    cultural rights. (For further discussion on a ‘reasonable limits’
    provision in a Human Rights Act, see section 20.6 below.)

  6. Further, it may be that different enforcement mechanisms are appropriate for
    civil and political rights on the one hand, and economic, social and cultural
    rights on the other. (See section 20.12 below.) However, this does not mean that
    economic, social and cultural rights are incapable of enforcement or that they
    should be excluded from a Human Rights Act.

  7. In any event, under the Human Rights Act model proposed by the Commission,
    federal Parliament would always have the final say with respect to resource
    allocation (regardless of the nature of the right at stake).

(iii) A Human Rights Act
could initially set out core economic, social and cultural rights

  1. In the event that the Consultation Committee is unsure about whether to
    recommend inclusion of all economic, social and cultural rights in a Human
    Rights Act, the Commission recommends against an ‘all or nothing
    approach’. In those circumstances, the Commission encourages the
    Consultation Committee to consider a minimum core of economic, social and
    cultural rights for inclusion in a Human Rights Act.

  2. For example, the UK Joint Committee on Human Rights recommended that a UK
    Bill of Rights should contain rights to health, education, housing and an
    adequate standard of living. Inclusion of these core rights was recommended
    because they ‘touch the substance of people’s everyday
    lives’.[211] The Joint
    Committee further considered that this list should be reviewed after a period to
    determine if further economic, social and cultural rights should be added.

  3. In terms of which rights to include in a Human Rights Act, the Commission is
    confident that people in Australia will tell the Consultation Committee about
    the rights that ‘touch the substance’ of their everyday lives. In
    the Commission’s experience, this includes fundamental economic, social
    and cultural rights such as the right to an adequate standard of living,
    education, housing and health. At the very least, such core economic, social and
    cultural rights should be included in a Human Rights Act.

  4. If only a limited number of economic, social and cultural rights are
    protected initially, a Human Rights Act should be reviewed periodically to
    assess of whether further rights should be included (see section
    20.14).

(b) A Human Rights Act
should include mechanisms to incorporate the rights of specific groups in
Australia

  1. As a statement of rights that all people in Australia are entitled to enjoy,
    a Human Rights Act might initially include human rights sourced in the ICCPR and
    ICESCR. These rights are typically expressed in general language, applying to
    everyone.[212]

  2. Australia has also committed to international treaties and declarations
    which protect the rights of women, children, people with disability, people of
    different races and Indigenous
    peoples.[213]

  3. These specific instruments often articulate the way in which general human
    rights apply to people whose human rights are most at risk. They build upon the
    general rights set out in the ICCPR and the ICESCR. For example, the CEDAW
    builds upon the right to equality and non-discrimination as it applies to women
    and the circumstances they face.

  4. The Commission understands the concern that specific issues affecting
    certain groups could be overlooked if a Human Rights Act does not include rights
    as expressed in these instruments.

  5. One way of addressing this is to expressly permit courts and decision-makers
    to consider international law, including human rights materials that elaborate
    the rights of specific groups of people, when interpreting the general civil,
    political, economic, social and cultural rights set out in the Human Rights
    Act.[214]

  6. A Human Rights Act need not attempt to exhaustively list which materials the
    courts and decision-makers can consider. It could, however, draw attention to
    human rights instruments that are of particular importance to people in
    Australia.

  7. This should include:
    • international human rights treaties to which Australia is a party
    • international human rights declarations that Australia supports, such as the
      Declaration on the Rights of Indigenous Peoples
    • general comments and views of the UN treaty bodies
    • judgments of domestic, foreign and international courts and tribunals
    • customary international
      law.[215]
  1. This would help ensure that the development of Australian law reflects
    international human rights law. It would also encourage courts and
    decision-makers to interpret and apply the general human rights set out in a
    Human Rights Act in a way that responds to the circumstances of certain
    vulnerable groups.

  2. For example, Indigenous peoples would particularly benefit from a Human
    Rights Act that includes general rights of equality before the law,
    non-discrimination, economic, social and cultural rights and the right to
    self-determination. In applying general human rights to Indigenous peoples,
    courts and decision-makers should be guided by the ‘minimum
    standards’ affirmed by the Declaration on the Rights of Indigenous
    Peoples and the protections against racial discrimination contained in
    the CERD.

(i) Marginalised groups should be consulted in drafting
a Human Rights Act

  1. The Commission recommends that special effort should be made to ensure that
    Indigenous peoples, and members of other marginalised groups, are full and
    effective participants in the development of a Human Rights Act. This would
    provide an opportunity for people from vulnerable groups to articulate whether
    specific protections should be included in a Human Rights Act, or whether they
    are satisfied that general protections are sufficient to protect their
    rights.[216]

  2. If a Human Rights Act initially only includes rights expressed in general
    terms, a periodic review should include consideration of whether further,
    specific protections for certain groups are necessary (see section 20.14).

(c) The human rights set
out in a Human Rights Act should not be exhaustive

  1. The Commission understands the concern that setting out rights in a Human
    Rights Act could cause rights to be limited. However, a Human Rights Act could
    be amended by federal Parliament if necessary. For instance, if Australia
    committed to the protection of new rights, these could readily be incorporated
    into a Human Rights Act.

  2. Further, a Human Rights Act should not be exhaustive of the rights that
    people may have under domestic or international law. For example, the Victorian
    Charter provides:

    A right or freedom not included in this Charter
    that arises or is recognised under any other law (including international law,
    the common law, the Constitution of the Commonwealth and a law of the
    Commonwealth) must not be taken to be abrogated or limited only because the
    right or freedom is not included in this Charter or is only partly
    included.[217]

  3. A similar provision should be included in a national Human Rights Act.

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, 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.

20.6 A
Human Rights Act should allow justifiable limitations on rights

  1. Most human rights are not absolute and circumstances may require that
    different rights be balanced. For example, it may be necessary to balance the
    right to freedom of expression with the right to privacy. In extraordinary
    circumstances, it may also be permissible to suspend or restrict certain
    rights.
  2. A Human Rights Act should therefore provide clear guidance as to what rights
    can be limited, when and how.

(a) A
Human Rights Act should include strict criteria and processes for limiting
rights

  1. A Human Rights Act
    should set out strict criteria for the limitation of human rights, taking into
    account factors such as the nature of the right and considerations of
    reasonableness and proportionality.
  2. A Human Rights Act should also require Parliament to publicly explain how
    any limitations it intends to impose upon human rights can be justified in a
    free and democratic society. (See section 20.8.)
  3. The Victorian and ACT models provide a useful starting point for developing
    a ‘reasonable limits’ provision in a national Human Rights Act.
  4. Section 7(2) of the Victorian Charter provides that:

A human
right may be subject under law only to such reasonable limits as can be
demonstrably justified in a free and democratic society based on human dignity,
equality and freedom, and taking into account all relevant factors including

(a) the nature of the right; and

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose
that the limitation seeks to achieve.

  1. Section 28 of the ACT Human Rights Act contains a similar reasonable limits
    provision.[218] Both the ACT and
    Victorian Acts also subject certain rights to specific internal
    limitations.[219]
  2. According to the recent Victorian decision in Kracke, the requirement
    that any limitation upon a human right be both ‘reasonable’ and
    ‘demonstrably justified’ imposes a ‘stringent standard of
    justification’ on the
    government.[220]

(b) A Human Rights Act should distinguish between
rights that can and cannot be limited

  1. A Human Rights Act should distinguish between rights that can be limited and
    rights that are absolute under international law.
  2. International human rights treaties include certain rights with internal
    limitations. For example, article 19 of the ICCPR protects the right to freedom
    of expression. However, this right:

    carries with it special duties
    and responsibilities. It may therefore be subject to certain restrictions, but
    these shall only be such as are provided by law and are necessary:

    • (a) For respect of the rights or reputations of others;
    • (b) For the protection of national security or of public order (ordre
      public
      ), or of public health or
      morals.[221]
  3. Other human rights are so fundamental that they should never be suspended or
    ‘derogated’ from, even in times of public emergency which threaten
    the life of the nation. For example, the ICCPR provides that the following
    rights are
    ‘non-derogable’:[222]
    • the right to life
    • freedom of thought, conscience and religion
    • freedom from torture or cruel, inhuman or degrading treatment or punishment
    • right to recognition everywhere as a person before the law
    • the prohibition on the retrospective operation of criminal laws
    • the right not to be imprisoned merely on the ground of inability to fulfil a
      contractual obligation
    • the right not to be held in slavery or servitude.
  4. Some of those ‘non-derogable’ rights have internal
    limitations.[223] For example,
    article 18(3) of the ICCPR provides:

    [f]reedom to manifest one's
    religion or beliefs may be subject only to such limitations as are prescribed by
    law and are necessary to protect public safety, order, health, or morals or the
    fundamental rights and freedoms of others.

  5. However, there are other rights which can never be limited, qualified or
    derogated from. This includes the prohibition on torture, which is regarded as
    an ‘absolute’ right.
  6. A Human Rights Act could specifically exempt absolute rights from the
    operation of a reasonable limits provision. This would clearly signal to
    decision-makers that some rights are so fundamental that they should never be
    limited.
  7. Alternatively, a Human Rights Act could rely upon judicial interpretation of
    the reasonable limits provision, with the expectation that the provision would
    not apply to rights that are absolute under international
    law.[224] However, this second
    approach would not explicitly recognise the special nature of absolute rights.
    It would also suggest that absolute rights may be limited, rather than
    recognising that certain rights are
    non-negotiable.[225]

(c) Applying a reasonable limits clause

  1. Applying a ‘reasonable limits’ clause would not be a novel role
    for Australian courts, which already assess the limitations placed on rights in
    specific contexts.[226] This is
    also a role undertaken by courts in other
    jurisdictions.[227]
  2. Further, Australian courts already apply a proportionality analysis in
    relation to the constitutionally implied ‘freedom of political
    communication’ and the guarantee that inter-state trade and commerce shall
    be absolutely free.[228]
  3. Finally, it is important to remember that courts would be required to
    interpret legislation in a way that is consistent with the purpose of the
    legislation, and that courts would not be able to invalidate laws under a Human
    Rights Act.

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.

20.7 A
Human Rights Act should ensure human rights are considered when law and policy
is developed

  1. The Commission believes that many human rights problems could be avoided if
    human rights were actively considered in the earliest stages of law- and
    policy-making. In other words, human rights breaches may not occur if policy and
    law makers were required to consider the potential human rights impact of
    policies and laws before they finalised them.
  2. The Commission therefore recommends that a Human Rights Act should require
    that any policy submission put to federal Cabinet (including proposals for new
    laws, amendments and policies) should be accompanied by a human rights impact
    statement.
  3. A human rights impact statement should include an assessment of whether a
    proposed law or policy is consistent with the human rights set out in the Human
    Rights Act. It should also draw Cabinet’s attention to any proposed
    limitations on rights and justify those limitations in accordance with any
    reasonable limits provision in the Human Rights Act.
  4. Through these human rights impact statements, Cabinet would be alerted to
    the potential human rights impact of proposed laws and policies and would be in
    a better position to consider human rights in its deliberations.
  5. The Australian Government should also set out these procedures in the
    Cabinet Handbook to provide clear direction to ministers and departments.
  6. Further, the Commonwealth Legislation Handbook should explicitly require
    ministers and their departments to consider the human rights set out in the
    Human Rights Act when developing new
    laws.[229]
  7. Example: How could a Human Rights Act make a difference?

    If human rights were taken into account during the development of
    the Northern Territory Emergency Response, the government may have implemented
    measures to protect women and children that did not discriminate on the basis of
    race. The government may have respected the right of Indigenous peoples to
    participate in decision-making in matters that affect their rights. This could
    have led to a partnership approach to policy development.

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.

20.8 A
Human Rights Act should ensure human rights are considered before new laws are
passed

  1. Sometimes, especially in times of perceived emergency or when acting under
    significant time pressure, Parliament disregards or fails to fully consider the
    human rights implications of new laws. This can result in the passing of laws
    that have serious human rights implications – for example
    counter-terrorism laws.
  2. A Human Rights Act could help prevent human rights breaches by ensuring that
    the human rights implications of new laws are openly and transparently assessed
    and debated, in an informed manner, before the laws are enacted.
  3. Pre-legislative human rights scrutiny should require Members of Parliament
    to consider how legislation may affect human rights before the proposed
    legislation is put to a vote. The human rights implications of any proposed
    measure should be clearly identified. They could then be debated openly in
    Parliament. And in the event that the executive or Parliament was intending to
    limit the enjoyment of any human rights, this should be explicitly identified
    and publicly justified and debated.
  4. Pre-legislative scrutiny would also ensure that courts are better informed
    of legislative intent.
  5. Thus, pre-legislative scrutiny processes could increase accountability and
    transparency – the public would be put on notice when their elected
    representatives were considering measures that would limit human rights.
  6. Pre-legislative scrutiny would also mean that all Members of Parliament,
    including ministers, would have to become familiar with the potential impact of
    new laws and policies on human rights. It would help create an awareness of, and
    a culture of respect for, human rights within Parliament and across government
    departments.
  7. In the Commission’s view, a Human Rights Act should include the
    following pre-legislative processes:

    • every bill introduced into Parliament should be accompanied by a statement
      of human rights compatibility
    • every bill should be scrutinised by a specialist parliamentary Human Rights
      Committee
    • in the event that a bill bypasses those processes, the law should be
      automatically reviewed after a fixed period of time.
  8. Example: How could a Human Rights Act make a
    difference?

If a Human Rights Act had been in place in the past,
with stronger pre-legislative scrutiny processes, Parliament would have openly
debated whether:

  • a law requiring the mandatory detention of all ‘unlawful
    non-citizens’ could be justified
  • a law permitting the indefinite detention of children and young people in
    immigration detention could be justified
  • changes to workplace relations, taxation or social security laws adequately
    took into account the particular needs of women
  • counter-terrorism laws allowing detention without charge impacted
    inappropriately on the right to liberty and freedom from arbitrary
    detention.

A Human Rights Act would have required Parliament to
justify any limitations to human rights imposed by such legislation, and
publicly explain why such limitations were reasonable. This would have stirred
active debate in Parliament and the media.

(a) A
statement of human rights compatibility should accompany bills and
regulations

  1. A Human Rights Act could require the relevant minister or Member of
    Parliament (in the case of a private member’s bill) to prepare a human
    rights compatibility statement for each new bill. This statement would accompany
    the bill when it was introduced into Parliament.
  2. The Legislative Instruments Act 2003 (Cth) could also require that a
    human rights compatibility statement accompany any new or amended regulation
    tabled in Parliament.
  3. The Member of Parliament who introduced the bill or regulation into
    Parliament should be required to explain whether or not it is compatible with
    human rights. The human rights compatibility statement should address, amongst
    other things, any limitations on human rights that the proposed legislation or
    regulation would impose. And if there were such limitations, they should be
    justified in accordance with the reasonable limits provision in the Human Rights
    Act.
  4. Example: How could a Human Rights Act make a
    difference?

The requirement to table a statement of compatibility in
Parliament could ensure that human rights considerations are an integral part of
the law-making process. For example, the Victorian Privacy Commissioner has
stated that:

The [Victorian] Charter’s presence and the requirement for a statement
of compatibility places a spotlight on privacy and encourages the public sector,
when developing and amending legislation, to turn its mind to broader privacy
rights as well as information privacy protected by the IPA [the Information
Privacy Act 2000
]. This in turn encourages the sector to consult with [the
Office of the Victorian Privacy Commissioner] on privacy impacts at an earlier
phase in the legislative
process.[230]

(b) A parliamentary
Human Rights Committee should examine the human rights implications of all
bills

  1. Currently, the parliamentary committee system is
    one of the most important mechanisms for the scrutiny of legislation in
    Australia. As discussed above in section 20.8, there is no parliamentary
    committee that is specifically charged with considering the human rights
    implications of new laws.
  2. A Human Rights Act could require a parliamentary committee to examine new
    legislation, and provide advice to Parliament on any human rights implications.
    This would reduce the likelihood of the introduction of laws that breach human
    rights standards.
  3. The Committee should be permanent and dedicated to conducting human rights
    scrutiny. This would produce a better result than simply expanding the role of
    existing legislative scrutiny committees, because it would enable the Committee
    to build special expertise in analysing human rights issues.
  4. The pre-legislative scrutiny conducted by the Committee should be a public
    process, further increasing the transparency of public decision-making. The
    Committee’s scrutiny process could also involve engagement with the public
    and civil society, improving the ability of people in Australia to become
    involved in democratic processes.
  5. Experience in the UK and Victoria has shown that human rights committees
    have had an important impact on parliamentary debate. In the UK, it has been
    suggested that parliamentary debate on human rights issues is more informed and
    sophisticated as a result of the work of the Joint Committee on Human
    Rights.[231] In Victoria, the pre-legislative scrutiny process has resulted in meaningful
    exchanges been ministers and the Scrutiny of Acts and Regulations
    Committee.[232]

(i) A
parliamentary Human Rights Committee should have broad functions

  1. The parliamentary Human Rights Committee should consider each bill
    introduced into Parliament and inquire into whether the bill is consistent with
    the Human Rights Act.
  2. A Human Rights Act would guide the parliamentary committee on the rights
    that it should consider when conducting these functions. It would also provide
    guidance on how to assess whether a limitation upon a right could be
    justified.
  3. The Committee should report its findings to Parliament before Parliament is
    due to vote on the bill in question.
  4. The parliamentary Human Rights Committee could also inquire into any
    questions referred to it by Parliament.
  5. A parliamentary Human Rights Committee could adopt broad terms of reference
    similar to those used in the UK, which enable the UK Committee to consider
    ‘matters relating to human rights in the United Kingdom (but excluding
    consideration of individual
    cases)’.[233] The UK
    Committee undertakes a wide range of other functions including:

    • examining existing laws on an ad hoc basis
    • examining pre-legislative documents (for example, Green Papers)
    • monitoring implementation of the human rights legislation
    • monitoring the work of human rights commissions
    • monitoring the government’s human rights
      policy.[234]

(ii) A parliamentary Human
Rights Committee should be adequately resourced

  1. The Committee should be provided with adequate resources and time to be able
    to properly assess the human rights implications of proposed legislation. The
    Commission acknowledges that the demands and complexities of legislative
    programs can be difficult to manage. However, it is important that every effort
    be made to ensure that all aspects of pre-legislative scrutiny are conducted
    appropriately.

(iii) Other elements of a Human Rights Act would
complement the work of a parliamentary Human Rights Committee

  1. The Commission acknowledges the view that human rights protections in
    Australia could be improved by strengthening parliamentary committees, without a
    Human Rights Act.[235]
  2. However, the Commission believes that parliamentary committees alone cannot
    ensure comprehensive human rights
    protection.[236]
  3. A Human Rights Act would provide guidance to the parliamentary committee as
    to what rights it should consider, and a framework for assessing proposed
    limitations upon rights.
  4. Further, improving the way human rights are considered in the legislative
    process is only one of many reforms required to develop a culture of respect for
    human rights in government. All levels of government, including government
    agencies and other public authorities, need to consider human rights in
    decision-making. A Human Rights Act is a comprehensive way of ensuring that this
    occurs.

(c) Parliament
should review legislation within a specified time if the pre-legislative
scrutiny process is bypassed

  1. There may be instances where a bill must be expedited through Parliament,
    giving insufficient time for full pre-legislative scrutiny. This should not
    affect the validity, operation or enforcement of the legislation.
  2. However, if Parliament enacts legislation without following the
    pre-legislative scrutiny process, a Human Rights Act should require Parliament
    to review that legislation after a fixed period of operation (for example, two
    years). This would encourage public debate on the impacts of that legislation
    upon human rights.

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.

20.9 A
Human Rights Act should ensure that courts and public authorities consider human
rights when interpreting and applying laws

  1. In
    the Commission’s view, it is important that public authorities consider
    how their actions and decisions might impact on a person’s human rights.
    It is also appropriate that courts interpret laws consistently with human
    rights, provided the purpose of Parliament in enacting legislation is
    respected.

(a) Public authorities and courts should interpret
laws consistently with human rights

  1. A Human Rights Act could require courts and public authorities to interpret
    federal legislation consistently with the rights protected by the Human Rights
    Act.[237]
  2. The purpose of a provision of this kind would be to make sure that human
    rights are considered in decision-making at all levels of government so that
    human rights breaches are avoided to the maximum extent possible.
  3. A Human Rights Act which included such an interpretive provision would
    ‘bring human rights immediately to the mind of everybody involved in
    statutory interpretation, whether they be a judicial officer, government
    official or legal
    practitioner’.[238]
  4. A human rights interpretive provision would clarify and strengthen the
    established common law presumption that Parliament does not intend to abrogate
    fundamental rights and freedoms in the absence of a clear intention to the
    contrary.[239]
  5. This principle of interpretation means that Parliament:

must
squarely confront what it is doing and accept the political cost. Fundamental
rights cannot be overridden by general or ambiguous words. This is because there
is too great a risk that the full implications of their unqualified meaning may
have passed unnoticed in the democratic process. In the absence of express
language or necessary implication to the contrary, the courts therefore presume
that even the most general words were intended to be subject to the basic rights
of the individual.[240]

  1. A Human Rights Act would strengthen the presumption by supplementing common
    law fundamental freedoms with a specific list of rights that reflects
    Australia’s international human rights
    obligations.[241]
  2. Possible models for a human rights interpretive provision can be found in
    the ACT Human Rights Act, Victorian Charter, NZ Bill of Rights Act and the UK
    Human Rights Act.[242] There is growing body of jurisprudence about how these principles should be
    applied.[243]
  3. As is the case in other jurisdictions, the interpretive provision should
    apply to both legislation and
    regulations,[244] regardless of
    whether they were introduced before or after the introduction of the Human
    Rights Act.[245]

(b) The purpose of Parliament must be
respected

  1. A human rights interpretive provision would
    build upon what Australian courts already do – interpret and apply laws
    enacted by Parliament. As Chief Justice Spigelman has observed, significant
    areas of the law are now governed entirely by statute. As such, ‘the law
    of statutory interpretation has become the most important single aspect of legal
    practice’.[246]
  2. However, the Commission acknowledges the concern that a Human Rights Act may
    give judges a licence to rewrite legislation and therefore trespass on
    parliamentary supremacy.[247]
  3. To address this concern, a Human Rights Act should provide that legislation
    may only be interpreted consistently with human rights, if that meaning is also
    consistent with the purpose of the
    legislation.[248] The
    pre-legislative scrutiny processes proposed by the Commission would result in
    courts being better informed about the actual legislative intent.
  4. An interpretive provision would ensure that courts do not cross the line
    between legitimate judicial interpretation and improper judicial
    law-making.[249] It would preserve
    the separation of powers and ensure that courts do not tread onto the territory
    of legislators.
  5. Eminent constitutional and human rights lawyers have confirmed that there is
    no constitutional impediment to introducing such a provision in a national Human
    Rights Act.[250]
  6. This type of provision would not limit Parliament’s power to make
    laws, including laws that breach human rights. However, it would require
    Parliament to be explicit about its intention to pass a law that is inconsistent
    with human rights.
  7. Similarly, if Parliament objected to the way legislation had been
    interpreted by a court, Parliament could introduce amendments clarifying the
    operation of the law.
  8. In either case, the introduction of a new law or amendments which
    deliberately limit the enjoyment of human rights would engage the
    pre-legislative scrutiny process described in section 20.8. Parliament would be
    required to justify a decision to enact legislative amendments which were
    inconsistent with human rights. However, parliamentary supremacy would be
    preserved.
  9. Combined with the pre-legislative scrutiny process, the requirement that
    Parliament clearly identify its legislative purpose would ensure that the public
    is better informed about the actions of its elected representatives.
  10. Example: How could a Human Rights Act make a
    difference?

    The interpretive provision in a Human Rights Act may
    have made a difference to Mr Al-Kateb’s case (see section 11.2). A Human
    Rights Act would have required the High Court to explore if there was a
    possibility that the Migration Act could be interpreted consistently with the
    purpose of the mandatory detention provisions and the human rights of Mr
    Al-Kateb. The decision of the minority in Al-Kateb indicates that it was
    possible to do so.[251]

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.

20.10 A
Human Rights Act should ensure that Parliament is notified when laws are
inconsistent with human rights

  1. Under the Human Rights Act model supported by the Commission, courts would
    not have the power to invalidate laws that are inconsistent with human rights.
  2. However, this does raise the question of what should happen if a court finds
    it impossible to interpret a law consistently with human rights.
  3. Where a statutory provision is inconsistent with a Human Rights Act, it
    should continue to operate. This would ensure that parliamentary supremacy is
    respected.
  4. However, in the Commission’s view there should be some kind of process
    to notify Parliament about the existence of a law that cannot be interpreted in
    a way that is consistent with human rights.
  5. The Commission believes that a notification process would encourage the
    government to take responsibility for laws that breach human rights, and to look
    for ways to achieve its policy objectives without breaching human rights.
  6. If a Human Rights Act included a notification process, it would give
    Parliament an opportunity to reconsider the legislation in question and to amend
    it to ensure that it is consistent with human rights. Or, alternatively,
    Parliament could choose to leave the legislation as it is.
  7. Most importantly, no matter what Parliament decided to do about the law,
    there would be greater transparency and accountability. Parliament would be
    required to publicly explain its decision. Parliament would ultimately be
    accountable to the Australian public for maintaining legislation that is
    inconsistent with human rights.

(a) The UK, Victoria and the ACT use
‘declarations of compatibility’

  1. In the UK, Victoria and the ACT, courts can issue a ‘declaration of
    incompatibility’ if they are unable to interpret legislation in a way that
    is compatible with human
    rights.[252] This declaration is
    brought to the attention of Parliament.
  2. A declaration of incompatibility does not affect the ‘validity,
    operation or enforcement’ of the provision that is the subject of the
    declaration.[253] However, in
    Victoria the minister responsible, and in the ACT the Attorney-General, is
    required to respond to a declaration of incompatibility within six
    months.[254] A failure to comply
    with this timetable does not affect the validity of the legislation.
  3. So far, no declarations of incompatibility have been made in Victoria or the
    ACT.
  4. Seventeen declarations of incompatibility have been made in the
    UK.[255] In all 17 cases,
    Parliament has taken legislative action to ensure the laws in question comply
    with human rights.[256]

(b) A Human Rights Act
could use an alternative notification process

  1. Some people have raised doubts about the constitutional validity of a
    ‘declaration of incompatibility’ in the federal context. In
    particular, former High Court Justice the Hon Michael McHugh has raised the
    following questions:

    • Does the question of whether a law is consistent with the Human Rights Act
      raise a ‘matter’ within the meaning of Ch III of the
      Constitution?
    • Is issuing a declaration of incompatibility an exercise of federal judicial
      power? [257]
  1. These questions warrant careful consideration in the design of a Human
    Rights Act. However, such constitutional concerns could be addressed if courts
    were taken out of the notification process.
  2. A roundtable of Australia’s leading constitutional and human rights
    lawyers, including the Hon Michael McHugh and the former Chief Justice of the
    High Court, Sir Anthony Mason, suggested that one option could be to give an
    independent body such as the Australian Human Rights Commission a role in the
    notification process.
  3. For example, if a court is unable to interpret legislation consistently with
    the rights set out in a Human Rights Act, the Commission could notify the
    Attorney-General of this finding.
  4. If the Commission were to be given this role, it would not be empowered to
    reopen or re-examine the case. Nor would it be empowered to affect the validity
    or ongoing operation of the legislation in question in any way. The Commission
    could simply draw the Attorney-General’s attention to the fact that a
    court had not been able to interpret legislation consistently with human
    rights.
  5. The Commission could be empowered to do this of its own motion or at the
    request of a party to the proceeding.
  6. The Attorney-General could be required to table the notification in federal
    Parliament and the government could be required to respond to the notification
    within a defined period (for example, six months).

(c) Subordinate legislation could be invalidated by
courts

  1. Subordinate
    legislation is made by the executive, not Parliament, and does not attract the
    same level of parliamentary scrutiny as primary legislation. For this reason,
    ‘[t]here is no threat to parliamentary sovereignty in the judiciary
    invalidating delegated legislation that the primary legislator has not
    authorised’.[258]
  2. Therefore, the Commission recommends that federal courts be empowered to
    invalidate subordinate legislation which is inconsistent with the rights
    protected by a Human Rights Act, unless the primary Act expressly authorises the
    making of subordinate legislation that is inconsistent with human
    rights.

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.

20.11 A
Human Rights Act should require public authorities to respect human
rights

  1. Public authorities such as Centrelink and Medicare make many of the
    day-to-day government decisions which impact on the lives of people in
    Australia. A Human Rights Act could help ensure that public authorities respect
    human rights when making those decisions.
  2. The Commission believes that imposing obligations on public authorities to
    consider and respect human rights would have a strong and positive impact.
    Public authorities would become more conscious of the impact their decisions
    have on the rights of individuals and the need to respect those rights. This
    greater awareness and understanding could prevent many human rights breaches
    from occurring.
  3. Experience in the UK has shown that ‘[h]uman rights principles can
    help decision-makers and others see seemingly intractable problems in a new
    light’.[259] This is because a Human Rights Act would define human rights and provide a
    framework to analyse, understand and ultimately resolve issues that may have at
    first seemed to be
    unresolvable.[260]
  4. This framework should improve public service delivery by leading to more
    individualised solutions. This should reduce the level of complaints received
    and increase the effectiveness of the service.
  5. In this way, a Human Rights Act would positively impact on the lives of
    people in Australia in their regular, day-to-day contact with government
    departments and public services. It would strengthen Australia’s human
    rights culture both in government and the general community.
  6. The following sections explain the Commission’s view on who should be
    included in the definition of a ‘public authority’; the obligations
    a Human Rights Act might impose on public authorities; and the steps a public
    authority could take to ensure they are adequately fulfilling their
    responsibilities.

(a) A Human Rights Act should clearly define
‘public authority’

  1. Generally speaking, a Human Rights Act should require that ministers,
    departments, government agencies and any other organisations acting on behalf of
    the government respect human rights when making decisions that impact on
    individuals.
  2. The definition of ‘public authority’ should be flexible enough
    to accommodate changes to governance arrangements and clear enough to provide
    certainty as to who must comply with a Human Rights
    Act.[261]
  3. It is particularly important that the definition of ‘public
    authority’ include private organisations when they are performing public
    functions on behalf of government. This is because, increasingly, services
    previously performed by government are being outsourced to corporations and
    community organisations.[262] Outsourcing should not deprive the users of that government service from the
    right to be treated with respect and in accordance with human rights.
  4. Furthermore, Australian public authorities (for example, the Australian
    Federal Police or AusAid) should be required to comply with a Human Rights Act
    when conducting operations
    internationally.[263]
  5. However, the Parliament and federal courts should generally be excluded from
    the definition of public authority, other than when acting in an administrative
    capacity. This exclusion would preserve parliamentary supremacy and protect
    against any interference with judicial power.
  6. The definition of public authority should also exclude individuals or
    organisations that are not performing public functions.

(b) A Human Rights Act should require public
authorities to consider and respect human rights

  1. A Human Rights Act should ensure that public authorities respect human
    rights in their actions and properly consider human rights when making
    decisions.
  2. To achieve this result, a Human Rights Act could make it unlawful for a
    public authority to:

    • act in a way that is incompatible with human rights (where an
      ‘act’ includes a failure, refusal or a proposal to
      act)[264]
    • fail to give proper consideration to human rights in
      decision-making.
  3. For example, a Human Rights Act could make it unlawful for the Department of
    Immigration and Citizenship to treat a person in immigration detention in a way
    that breaches the right to be free from cruel, inhuman and degrading treatment.
  4. When making decisions, a public authority would need to interpret and apply
    laws and regulations in a way that is compatible with human rights. However,
    this obligation would be subject to Parliament’s clear intention to the
    contrary. In other words, a public authority’s actions or decisions would
    not be unlawful if the legislation expressly required the authority to act in a
    way that was inconsistent with human
    rights.[265]
  5. The Commission acknowledges that these obligations may require some changes
    to the policies and procedures of public authorities. To address this
    operational concern, the obligations on public authorities under a Human Rights
    Act could commence after a ‘lead-in’ period of one to two
    years.

(c) Human rights should
be incorporated into public sector practice and procedures

  1. If a Human Rights Act imposes obligations on public authorities, the public
    sector could need to take steps to ensure that respect for human rights is
    embedded into public sector practice and procedure.
  2. Those steps could include:
    • better education of the public sector about human rights and the obligations
      under a Human Rights Act
    • requiring federal government departments and agencies to develop human
      rights action plans
    • requiring federal government departments and agencies to conduct annual
      human rights audits and prepare annual reports on compliance with the Human
      Rights Act
    • integrating respect for human rights into public sector values and codes of
      conduct
  3. These initiatives are described more fully below.
  4. It may not be appropriate for all of these mechanisms to be explicitly set
    out in a Human Rights Act. Rather, these features could be integrated into the
    practice and procedure of the public sector.
  5. The Commission understands that some people are concerned that this could
    lead to undue bureaucracy and expense for public authorities. However, most of
    these measures should complement, or be incorporated into, the current practice
    and procedure of the public service.
  6. For example, the Australian Public Service has had the ‘Charter of
    Public Service in a Culturally Diverse Society’ since
    1998.[266] This Charter recognises
    that service delivery should be tailored to the different needs of different
    groups of people and that this is ‘the foundation upon which to improve
    effectiveness and
    efficiency’.[267]
  7. A national Human Rights Act would similarly be about ensuring that
    government properly considers the needs of all members of Australia’s
    increasingly diverse population. In human rights terms, this means that no
    person should apply blanket policies without proper regard to the particular
    circumstances of an individual user of public services. Greater personalisation
    of the public sector means better public service, leading to better policy
    outcomes.
  8. Example: How could a Human Rights Act make a
    difference?

A Human Rights Act would lead to improvements in the
practice and procedures of public authorities.

Example one: In Victoria, a local service provider for people with disability
implemented a new system in which its routine assessment of client needs
included explicit consideration of their human rights through the use of a
mandatory Human Rights Checklist. Any issues identified by staff were then
referred to an internal Human Rights Committee for review, with the Committee
making recommendations to the person’s case manager. Through the
implementation of these new processes, the service provider became aware of a
number of people with intellectual disabilities whose ability to exercise their
right to vote had been restricted. The service took immediate steps to support
them to make individual decisions about how they would
vote.[268]

Example two: A nursing home in the UK had a practice of routinely placing
residents in special ‘tilt-back’ wheelchairs, regardless of whether
they could walk or not. As a consequence, residents who were able to walk
unaided were stopped from doing so. This had a severe impact on their ability to
make choices about everyday activities, as well as their capacity to feed
themselves and use the bathroom. A consultant pointed out to staff that their
failure to consider the different circumstances of individual residents was
contrary to human rights principles. She drew particular attention to the right
to respect for private life, which emphasises the importance of dignity and
autonomy, and the right not to be treated in a degrading way. This
‘one-size-fits-all’ practice was stopped. Residents who could walk
were taken out of the chairs and encouraged to maintain their walking
skills.[269]

(i) Better education about
human rights and the obligations under a Human Rights Act

  1. Public servants, parliamentarians and their staff, courts and tribunals, the
    legal profession, and any private bodies which perform public functions on
    behalf of the government should receive specialised human rights education and
    training about a Human Rights Act. In the early years of the Act’s
    operation, education and training should be a whole-of-government initiative,
    supported by specific departmental projects. Further, there should be support
    for training in private organisations acting as ‘public
    authorities’.
  2. In Victoria, for example, the newly-established Human Rights Unit of the
    Department of Justice developed and delivered a whole-of-government human rights
    education strategy during 2007, including:

    • Legal and Legislative Policy Officer Training delivered to over 500
      participants
    • the Human Rights Implementation Program, a train-the-trainer course
      delivered to over 300 service delivery staff across
      government.[270]
  1. These whole-of-government initiatives were complemented by initiatives at
    the departmental level, including:

    • training courses for staff
    • changes to the induction and performance management
      programs
    • online learning modules and other internal communication strategies such as
      newsletters, displays and a Human Rights
      Week.[271]
  2. These complementary initiatives continued into 2008. As the different
    departments became more familiar with the Victorian Charter, they generally
    provided a greater level of support to private bodies acting as public
    authorities.[272]

(ii) Human rights action
plans for federal departments and agencies

  1. Federal government departments and agencies should be required to prepare
    internal human rights action plans specifying how they intend to fulfil their
    obligations under the Human Rights Act. These action plans would assist
    departments and agencies to embed the consideration of human rights into their
    policies, procedure and practice.
  2. The human rights action plans should become the assessment and reporting
    framework for audits and annual reports on compliance with human rights.

(iii) A Human Rights Act
could require annual reports and human rights audits

  1. A Human Rights Act could require federal government departments and
    agencies to conduct an annual human rights audit and to report on their
    compliance with the Act.
  2. The annual reports could include:
    • details about the measures undertaken to comply with the Human Rights Act,
      including an assessment of the department or agency’s performance against
      its human rights action plan
    • human rights education or training that the department or agency has
      undertaken and the impact of that training on staff
    • details about complaints under the Human Rights Act involving the department
      or agency, including information on the status of those complaints or how those
      complaints were resolved.
  3. Government departments and agencies could also be subject to an external
    audit to determine the extent to which their practices and procedures are
    compatible with human rights.

(iv) Human
rights could be incorporated into public service values and codes of conduct

  1. The responsibility of public servants to respect and promote human rights in
    the performance of their duties should be articulated in the Australian Public
    Service Values and Code of Conduct.
  2. For example, the Public Administration Act 2004 (Vic) includes the
    following public sector value:

human rights—public officials
should respect and promote the human rights set out in the Charter of Human
Rights and Responsibilities by—

(i) making decisions and providing advice consistent with human rights;
and
(ii) actively implementing, promoting and supporting human
rights.[273]

  1. The Act also provides that public sector body heads (including heads
    of departments) must establish employment processes that will ensure that
    ‘human rights as set out in the Charter of Human Rights and
    Responsibilities are
    upheld’.[274]
  2. Setting out similar requirements in the Australian Public Service Values and
    Code of Conduct could help to integrate respect for human rights into the
    culture of the Australian public
    service.[275]

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 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.

20.12 A
Human Rights Act should provide a cause of action and enforceable remedies if
public authorities breach human rights

  1. As discussed above, the integration of human rights considerations into the
    decision-making processes of public authorities should make public servants more
    aware of the impacts of their decisions, and therefore help to prevent human
    rights breaches.
  2. However, sometimes better processes and education will not be enough, and
    breaches of human rights may occur.
  3. In those circumstances a Human Rights Act should provide a cause of action
    and the possibility of enforceable remedies. This should, in itself, help to
    build a stronger human rights culture both in the community and in government.
  4. This would convey to the community that the Australian Government takes its
    human rights obligations seriously. It would empower individuals to assert their
    rights. It would also be a signal to public authorities that there will be
    consequences for breaches of human rights.

(a) A
Human Rights Act should provide an independent cause of action

  1. A Human Rights Act should provide an independent cause of action for victims
    of a breach of human rights committed by a public authority.
  2. The Commission understands the concern that a Human Rights Act may lead to
    increased litigation.
  3. However, an accessible alternative dispute resolution (ADR) process would
    reduce the impact of a Human Rights Act on the judicial system.
  4. Litigation need not be the only – or indeed, the first – port of
    call for people who want to make a complaint alleging a breach of human rights.
  5. The current anti-discrimination jurisdiction recognises the potential of ADR
    to resolve disputes between complainants and public authorities in a quick,
    cost-efficient and effective
    manner.[276]
  6. Following this model, a Human Rights Act could require a person to attempt
    to resolve a human rights complaint through the investigation and conciliation
    processes provided by the Commission.
  7. Any ADR process under a Human Rights Act should be properly funded,
    accessible and affordable.
  8. Where a complaint cannot be resolved through conciliation, complainants
    should be entitled to pursue their claim in the Federal Court of Australia or
    the Federal Magistrates Court.

(b) A
Human Rights Act should allow an independent cause of action for all rights in
the Act

  1. The Commission believes that economic, social and cultural rights should be
    given the same status and protection as civil and political rights under
    Australian law. This is consistent with Australia’s international
    obligations.
  2. In the Commission’s view, an independent cause of action should be
    available for a person to seek a remedy for a breach of human rights,
    irrespective of the type of right breached. That is, independent causes of
    action should not be limited to breaches of civil and political rights. This
    approach recognises that human rights are indivisible and must be treated
    equally, on the same footing, and with the same emphasis.
  3. It also recognises that economic, social and cultural rights can be legally
    enforced.[277] Indeed,
    ‘[e]vidence shows that ... the adjudication of ESC rights across the world
    has, in fact, been
    widespread’.[278] In
    particular, significant jurisprudence has been developed in South Africa
    regarding the economic, social and cultural rights protected by the South
    African Bill of Rights.[279]

(i) Court access could be limited to breaches of civil
and political rights

  1. As discussed in section 20.5, the Commission believes that the protection of
    economic, social and cultural rights in a Human Rights Act would not permit
    courts to interfere in resource allocation. However, the Commission acknowledges
    that there are strong views that economic, social and cultural rights should not
    be the subject of litigation.
  2. There are options for ensuring that public authorities respect economic,
    social and cultural rights without creating an independent cause of action
    before the courts.
  3. For example, a Human Rights Act could:
    • restrict independent causes of action to matters involving civil and
      political rights
    • provide access to ADR at the Commission in matters solely involving
      economic, social and cultural rights, but not allow for complaints to be heard
      by a court if they cannot be resolved.
  4. Under the second of these options, if the Commission formed the view that a
    public authority had solely breached an economic, social or cultural right, the
    Commission could report to the Attorney-General recommending what action should
    be taken, including changes to policy and procedure.
  5. The Commission might also report to the Attorney-General if it had received
    a series of complaints indicating the need for further consideration of certain
    policy areas. The Commission has significant expertise in reporting to the
    government about economic, social and cultural rights, as set out in more detail
    in section 24.3.
  6. The Attorney-General could be required to respond to such reports in
    Parliament.

(ii) Even if there was no cause of action for
economic, social and cultural rights, other aspects of the Human Rights Act
should still apply

  1. Even if a Human Rights Act did not create an independent cause of action for
    breaches of economic, social and cultural rights, those rights should still be
    considered in pre-legislative scrutiny processes.
  2. Further, courts should still interpret legislation consistently with the
    economic, social and cultural rights protected by the Human Rights Act.
  3. Finally, a public authority should still be required to give proper
    consideration to economic, social and cultural rights in decision-making, and
    individuals should still be able to access existing administrative review
    processes if a public authority breaches this obligation (see section 20.12
    below).
  4. While these options would not provide full protection of economic, social
    and cultural rights, they would still promote greater scrutiny of the impact of
    public authorities on the enjoyment of those rights than is currently in
    place.

(c) A
Human Rights Act should provide a range of enforceable remedies against public
authorities

  1. A public authority should be held accountable if
    it breaches the human rights of an individual.
  2. A Human Rights Act could provide that accountability by giving a person
    access to enforceable remedies when a public authority breaches his or her human
    rights under the Act.
  3. 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.

(i) Orders requiring action

  1. A Human Rights Act should give courts the power to make an order requiring a
    respondent to act to redress any loss or damage suffered by a person whose human
    rights have been breached.
  2. Courts should also have the power to direct a respondent not continue or
    repeat conduct that has been found to breach human rights.
  3. Such powers would be consistent with the powers of courts hearing federal
    discrimination claims. Section 46PO(4) of the HREOC Act sets out a
    non-exhaustive list of remedies that are available for a successful claim under
    the Race Discrimination Act, the Sex Discrimination Act, the Disability
    Discrimination Act or the Age Discrimination Act. These include orders
    ‘directing the respondent not to repeat or continue... unlawful
    discrimination’ and ‘requiring a respondent to perform any
    reasonable act or course of conduct to redress any loss or damage suffered by an
    applicant’.
  4. This may be an especially important remedy for the violation of economic,
    social and cultural rights, particularly in the event that access to damages may
    be limited with respect to those rights (as considered below).

(ii) Injunctions

  1. A Human Rights Act should specifically permit courts to make an order for an
    injunction in cases where a public authority is proposing to act inconsistently
    with human rights.
  2. For example, section 46PP of the HREOC Act empowers the Federal Court to
    grant interim injunctions in respect of a complaint of unlawful discrimination
    lodged with the Commission, upon an application from the Commission,a complainant, a respondent or an affected person. The purpose of such an
    injunction is to maintain the status quo.

(iii) Damages

  1. The right to claim monetary damages for a breach of human rights would send
    an important message to public authorities, people in Australia and the
    international community: Australia takes breaches of human rights by, or on
    behalf of its government, seriously.
  2. Thus, a Human Rights Act should empower a court to make an order for damages
    where appropriate. If this was not included in the Human Rights Act, there is
    some risk that the Act would itself violate Australia’s obligations under
    article 2(3) of the ICCPR (see section 7.4). Further, it would suggest that the
    Australian Government takes human rights claims less seriously than other legal
    claims for which compensation is available.
  3. While not the preferable course, a Human Rights Act could exclude or limit
    damages awards in relation to claims for breaches of economic, social and
    cultural rights in order to address concerns about judicial adjudication of
    those rights.
  4. Damages are currently available for breaches of rights protected by federal
    discrimination laws.[280]
  5. Damages are available for a violation of the UK Human Rights Act but only if
    this award is necessary to afford just satisfaction to the
    complainant.[281]
  6. While the New Zealand Bill of Rights Act 1990 (NZ) does not make
    specific provision for remedies, the NZ Court of Appeal has held that
    compensation is available for breach of the human rights protected under that
    Act.[282]
  7. Damages are not available under the ACT Human Rights Act or the Victorian
    Charter.[283]

(d) A
Human Rights Act may have an impact on administrative law claims

  1. Australia already has administrative law mechanisms to review the actions
    and decisions of public authorities. A Human Rights Act could impact on those
    mechanisms by supplementing existing bases for challenging government
    decisions.

(i) A
Human Rights Act may be relevant in merits review

  1. The Administrative Appeals Tribunal and other federal administrative bodies
    such as the Social Security Appeals Tribunal and the Refugee Review Tribunal can
    review the merits of certain decisions made by public officials.
  2. In contrast to judicial review where courts do not remake decisions, merits
    review asks the reviewer to ‘stand in the shoes’ of the original
    decision-maker. This allows tribunals to reconsider discretionary matters and
    the merits of the original decision.
  3. Thus, tribunals should be required to take human rights into account in the
    same way as a primary decision-maker.

(ii) A Human Rights Act may be relevant in judicial
review

  1. A person who believes that a statutory decision-maker did not give proper
    consideration to a relevant human right, as required by a Human Rights Act,
    could seek judicial review of the decision. Under existing grounds for review, a
    person could argue that the decision-maker made a decision that was contrary to
    law or was an improper exercise of power because of a failure to take into
    account a relevant
    consideration.[284]
  2. Remedies for successful judicial review include the power to set aside the
    decision or refer the decision back to the decision-maker for further
    consideration, but not
    damages[285]

(e) A
Human Rights Act should give standing to appropriate representative
organisations

  1. Litigation is often expensive, time consuming, and, particularly for
    unrepresented litigants, a confusing process.
  2. One way to improve access to justice for victims of human rights violations
    is to ensure that the standing rules in a Human Rights Act are broad.
  3. Broad standing rules could enable an organisation or entity to bring an
    action on behalf of an alleged victim of human rights violations in
    circumstances where the victim does not have the capacity or resources to bring
    such an action themselves.
  4. The Australian Law Reform Commission has considered the issue of standing
    rules and has recommended permitting appropriate organisations with a legitimate
    interest in a particular subject matter to commence human rights proceedings,
    particularly where the claim involves a systemic problem that affects a wide
    class of persons.[286]
  5. The HREOC Act currently allows a person to bring a discrimination complaint
    to the Commission on behalf of an aggrieved person. However, only the aggrieved
    person can pursue the complaint in the courts, and the ability of representative
    bodies to bring claims on behalf of members is very
    limited.[287] This presents an
    unnecessary obstacle to justice and one which should not be replicated in a
    Human Rights Act.

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.

20.13 A
Human Rights Act should improve community understanding of human
rights

  1. A Human Rights Act could be a fundamental tool for better community
    education on human rights.
  2. A Human Rights Act could provide a clear focus for a human rights education
    and community awareness program across Australia. It should be a clear statement
    of Australian rights and values, and of how Parliament intends to protect those
    rights and values.
  3. A Human Rights Act could help people in Australia to identify their rights
    and their responsibilities to respect the rights of others. It could also
    explain what to do if these rights are not respected by public authorities.
  4. To be an effective education tool, a Human Rights Act should be accessible
    to all people in Australia. In particular, it should be:

    • drafted using plain English
    • made available in a range of formats and languages to ensure accessibility
      for people with disabilities, people whose first language is not English, and
      people of different age groups.
  5. Further, the Australian Government should commit to building awareness of
    the Act through:

    • community engagement including public education campaigns, media and
      community training workshops
    • incorporating human rights education into the core curricula taught in
      schools.
  6. Information, education and awareness-raising campaigns about a Human Rights
    Act should be delivered in a way that is culturally relevant to Indigenous
    peoples and people from culturally and linguistically diverse backgrounds.
  7. Particular attention should also be paid to human rights education in rural
    and remote communities in Australia.
  8. Example: How could a Human Rights Act make a
    difference?

A Human Rights Act could raise awareness of human rights
and be used as an advocacy tool to ensure that public authorities respect human
rights.

Example one: In Victoria, a pregnant single mother of two children living in
community housing was given an eviction notice. The notice didn’t provide
any reasons for the eviction or allow her to address the landlord’s
concerns. The Victorian Charter was used to negotiate with the landlord to
prevent an eviction into homelessness. An alternative agreement was
reached.[288]

Example two: Following the death of her mother, a woman found that she and
her children were not entitled to remain in her mother's public housing
property, because the lease had been in her mother's name. The children had
always lived in that house and had close contacts with the local community,
especially their school and nearby friends. There was a risk the woman would
lose custody of her children if they were required to leave the property and she
could not provide a home for them. A community legal centre helped the woman by
raising the right to protection of family life in submissions to the public
housing authority. The woman was given a lease over the
property.[289]

Recommendation 29: A Human Rights Act should be clear, accessible and
accompanied by a broad community education program.

20.14 A
Human Rights Act should be periodically reviewed

  1. A Human Rights Act should be subject to periodic independent reviews to
    assess its impact and effectiveness.
  2. Periodic review could ensure the continued relevance of a Human Rights Act
    for an evolving Australia. It could draw the government’s attention to
    necessary amendments and help prevent a Human Rights Act from becoming
    ‘frozen in time’.
  3. Reviews could include consideration of whether further rights should be set
    out in a Human Rights Act – especially in the event that it does not
    initially protect economic, social and cultural rights, or specifically
    articulate the rights of members of particularly vulnerable groups.
  4. Reviews could also consider whether the causes of action and remedies under
    a Human Rights Act provide effective redress for breaches of human rights.
  5. Reviews might also consider whether further human rights education
    initiatives are required to better implement the Human Rights Act.
  6. These periodic reviews should involve widespread public consultation. In
    particular, the consultation process should ensure that Indigenous peoples can
    participate effectively.

Recommendation 30: The operation and
implementation of a Human Rights Act should be subject to periodic independent
review.

20.15 A
stronger role for the Australian Human Rights Commission would help implement a
Human Rights Act

  1. As Australia’s national human rights institution, the Commission has
    over two decades of experience in analysing, applying and promoting
    international human rights standards in the Australian context. This makes the
    Commission ideally placed to play a significant role in the implementation of a
    Human Rights Act in Australia.

(a) The Commission could promote public awareness
and understanding of a Human Rights Act

  1. The Commission’s current statutory functions include promoting
    understanding, acceptance and public discussion of human rights in
    Australia.[290] The Commission has
    substantial expertise and experience in this area and is ready to play a leading
    role in engaging the Australian community on the content and effect of a Human
    Rights Act.
  2. The Commission’s role in this regard might include:
    • undertaking research
    • developing public education programs
    • running community based workshops
    • holding public forums
    • developing materials for use in schools
    • using innovative information and communications technology to promote
      awareness of a Human Rights Act.

(b) The Commission could scrutinise bills and laws
for human rights compatibility

  1. Greater pre-legislative scrutiny is a critical tool for preventing breaches
    of human rights. The Commission’s expertise means that it can play a
    valuable role in scrutinising bills and laws for human rights compatibility.
  2. However, as discussed in section 16.1, the Commission currently has limited
    powers in relation to scrutiny of proposed laws. It also has limited powers to
    progress recommendations about existing laws that are incompatible with human
    rights.
  3. Under a Human Rights Act, the Commission could be given an independent power
    to examine whether laws and bills are compatible with the human rights protected
    by the Act.
  4. Such a power should be discretionary, not mandatory. It should be a
    self-initiated power of the Commission (in other words it should not require the
    invitation of the Attorney-General or any other party).
  5. When the Commission undertook such an examination and provided a report to
    the Attorney-General, the Attorney should be required to table the report in
    Parliament within a fixed time period.
  6. Importantly, the Attorney-General should also be required to table a
    response setting out how the government intended to respond to the
    Commission’s recommendations. This response should be tabled within a
    fixed period, for example within six months of the initial report being
    tabled.

(c) The Commission could investigate and conciliate
complaints under a Human Rights Act

  1. The Consultation Committee’s Background Paper invites people to
    consider whether the Commission’s jurisdiction should be expanded to
    enable it to inquire into and conciliate a broader range of human rights
    complaints.[291]
  2. The Commission currently handles complaints of human rights breaches, as
    well as complaints of workplace discrimination and unlawful discrimination
    contrary the four federal anti-discrimination
    laws.[292] The Commission’s
    complaints procedure provides an accessible, cost-effective and efficient system
    of alternative dispute resolution. During the 2007-2008 financial year, the
    Commission’s Complaint Information Service handled 18 765 enquiries, and
    finalised 1883 complaints in an average time of six
    months.[293]
  3. If a Human Rights Act permitted complaints of alleged human rights breaches
    to be made against public authorities, the Commission could be given
    jurisdiction to investigate and conciliate those complaints.
  4. The process for resolving complaints of alleged human rights violations
    under a Human Rights Act could mirror the Commission’s current complaints
    procedure in the unlawful discrimination jurisdiction.
  5. Following this model, a Human Rights Act could require a person to lodge
    their human rights complaint with the Commission. The Commission would
    investigate the complaint and seek to resolve it through conciliation, thereby
    avoiding unnecessary litigation. Where the Commission could not resolve a
    complaint, the complainant could pursue their claim in the Federal Court or the
    Federal Magistrates Court.

(d) The Commission could assist courts in cases
involving a Human Rights Act

  1. The Commission can currently intervene, with the leave of the court, in
    proceedings involving ‘human rights’, as defined in the HREOC
    Act.[294] The Commission and its
    Commissioners can also intervene or act as amicus curiae in cases
    involving discrimination
    issues.[295]
  2. The special expertise the Commission has developed through performing its
    current statutory intervention and amicus functions – in over 70
    cases – places the Commission in a unique position to assist courts and
    tribunals on the meaning, scope and application of human rights, including the
    interpretation of international human rights jurisprudence.
  3. Thus, under a Human Rights Act, the Commission could have the power to
    intervene in court or tribunal proceedings involving the interpretation or
    application of the Act.
  4. This should be an automatic right of intervention – the Commission
    should not be required to seek the leave of the court. This would be consistent
    with the Victorian Charter, which grants the Victorian Equal Opportunity and
    Human Rights Commission a right of
    intervention.[296]
  5. Further, to allow the Commission a reasonable opportunity to consider
    whether or not to intervene in relevant proceedings, a Human Rights Act should
    require that the Commission receive formal notice of any court or tribunal
    proceedings involving the interpretation or application of the Act.

(e) The Commission could notify the
Attorney-General about laws which are inconsistent with a Human Rights
Act

  1. Under a Human Rights Act, the Commission could be empowered to notify the
    Attorney-General if a court finds that it cannot interpret a law consistently
    with the Human Rights Act.
  2. This should be a discretionary power of the Commission, rather than a
    mandatory function.
  3. This notification process is discussed in further detail in section
    20.10.

(f) The Commission could review policies and
practices of public authorities under a Human Rights Act

  1. Under a Human Rights Act, the Commission could be empowered to review the
    policies and practices of public authorities to assess their compatibility with
    the Human Rights Act. This power should be exercisable on the Commission’s
    own initiative, without an invitation from the relevant public authority. The
    Commission should have the right to access any documents, witnesses or other
    information necessary to conduct a proper review.
  2. The Commission should also be empowered to make recommendations to the
    public authority in question after conducting such a review. For instance, the
    Commission might recommend changes to the policies or practices of a public
    authority to make them compatible with the Human Rights Act.
  3. Public authorities should be required to respond to the Commission’s
    recommendations.

(g) The Commission could prepare an annual report
on the operation of a Human Rights Act

  1. The Commission could conduct a general assessment of the overall impacts of
    a Human Rights Act by preparing an annual report on the operation of the Act.
    These reports could be fed into the periodic reviews of the Act (as discussed in
    section 20.14).
  2. The Commission’s reports might consider issues relating to the
    implementation of the Act, compliance and non-compliance with the provisions of
    the Act, and relevant court proceedings.
  3. A Human Rights Act should not mandate the specific content of these annual
    reports. There should be sufficient flexibility to allow the Commission to focus
    on the most relevant aspects of the Act’s operation in any given
    year.
  4. The Attorney-General should be required to table the annual report in
    federal Parliament within a fixed period after receiving it from the Commission.

(h) The Commission would need adequate funding to
fulfil any new responsibilities

  1. The Commission could play an important role in promoting and implementing a
    Human Rights Act. However, if the Commission was tasked with additional
    functions under a Human Rights Act, the government would need to provide
    sufficient resources to enable the Commission to properly fulfil those
    functions.

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.

20.16 The
Commission’s response to arguments against a Human Rights Act

  1. The Commission acknowledges that there are many
    strongly-held views against a Human Rights Act. It has spent considerable time
    considering those views.
  2. The following sections respond to some of the more common arguments against
    a Human Rights Act, and explain why the Commission believes that a Human Rights
    Act would lead to better promotion and protection of human rights in Australia.

(a) There
is no historical basis for a Human Rights Act in Australia

  1. It is frequently argued that there is no foundation in Australia’s
    history for a Human Rights Act. The drafters of the Australian Constitution did
    not see the need for a bill of rights for Australia. Nor have Australian voters
    supported past attempts to insert guarantees of basic rights into the
    Constitution and to extend existing constitutional rights to bind the
    states.
  2. However, it is important to recognise what have been described as ‘the
    real motivations of the drafters’ in rejecting a bill of rights. The
    drafters ‘were driven by a desire to maintain race-based
    distinctions’.[297] In
    particular, the drafters were intent on preserving the ability of the states to
    discriminate on the grounds of race.
  3. Racial discrimination is clearly unacceptable in Australia today, yet
    Australia’s Constitution still contains racist provisions. Australia
    should not bind itself to the outcome of this historical reasoning. Instead,
    Australia should be guided by the international human rights standards that the
    Australian Government has promised to promote and protect.
  4. More recent history suggests that Australians do support statutory human
    rights protection. Since 2003, independent inquiries in the ACT, Victoria,
    Western Australia and Tasmania have consulted widely and reported broad public
    support for human rights legislation.
  5. For example, in the most recent inquiry, an independent opinion poll found
    that 89% of Western Australians thought that their state should have a law that
    aims to protect human rights.[298]
  6. Further, in February 2009, an independent Neilson poll commissioned by
    Amnesty International Australia found that 81% of people surveyed would support
    the introduction of a law to protect human rights in
    Australia.[299]

(b) There are already
sufficient human rights protections in Australia – ‘if it
ain’t broke, don’t fix it’

  1. Many people in Australia enjoy a relatively high standard of living.
    Australia is a great country to live in, for most of us, most of the time.
  2. However, as detailed in section 9 and Appendix 2, the Commission’s
    experience over the past 23 years confirms that human rights are not always
    adequately protected and promoted in Australia. This applies to many groups in
    the community, including Indigenous peoples, people seeking asylum, refugees,
    women, people with disability, and people who are homeless, to name a few.
  3. In addition, any one of us could move from a situation where our rights are
    currently well protected to one where they are vulnerable. For example, any
    person could suffer a car accident and end up in a wheelchair; we are all going
    to get older; we may have a family member who suffers from a mental illness; and
    with the global financial crisis, we are all more vulnerable to unemployment and
    associated concerns about housing, education, transport and food.
  4. For many people in Australia, the system is ‘broke’. It is time
    to fix it.

(c) Human rights can be
best protected by relying on our democratic institutions

  1. Australia is a robust democracy. However, as discussed in Part B, there are
    numerous examples of laws and policies that have, despite this democratic
    system, shown insufficient regard or respect for fundamental human rights.
  2. These examples, and the human rights concerns discussed in Appendix 2,
    suggest that politicians cannot always be counted on to pay sufficient regard to
    the protection of the human rights of all people in Australia.
  3. While the capacity to vote politicians out of power is a fundamental aspect
    of Australia’s democracy, the majority view is not always aware of, or
    sympathetic to international human rights standards.
  4. Opponents of a Human Rights Act point to the achievements of Parliament in
    addressing some human rights problems as evidence that Australia’s
    democratic system currently protects human rights. There are certainly examples
    of wrongs that Parliament has set right. Yet, change is often too slow.
  5. For example, public pressure eventually led to the removal of many
    asylum-seeking children from immigration detention centres – but only
    after hundreds of children were held in detention centres for long periods of
    time, during which the mental health of many children was severely damaged. Even
    now, some children are still held in immigration detention facilities.
  6. Similarly, last year the Australian Government amended more than 80 laws
    which discriminated against people in same-sex relationships – but only
    after thousands of people had suffered ongoing financial hardship just because
    of the sex of the person they loved.
  7. On the other hand, parliamentary processes can sometimes work swiftly and
    without proper consideration of human rights. This was the case, for example,
    with the Northern Territory Emergency Response legislation and the
    counter-terrorism laws discussed in sections 11.1 and 13.3.
  8. A Human Rights Act would lead to the routine and careful consideration of
    human rights in the early stages of the law- and policy-making process. This
    would help prevent human rights problems. It would also result in courts being
    better informed about the legislative intent behind particular laws.
  9. Further, in considering whether a law could be interpreted consistently with
    human rights, courts could help reveal human rights impacts that were not at
    first apparent or that only emerged in the application of the law to an
    individual. This would give Parliament the opportunity to reconsider laws in a
    fresh light. A Human Rights Act could therefore enhance the ability of
    Australia’s democratic institutions to respond to human rights problems
    when they do occur.

(d) A Human Rights Act
would be undemocratic

  1. A common argument against a Human Rights Act is that it will shift power
    from Parliament to unelected judges.
  2. However, the Human Rights Act model suggested by the Commission would
    maintain the supremacy of Parliament. It would be an ordinary Act passed by
    Australia’s elected representatives, meaning that it would be a
    fundamentally democratic document. Any power given to a court, or any other
    body, would be voluntarily given by the Parliament itself. And Parliament would
    be able to repeal, amend or override a Human Rights Act using its ordinary
    legislative mechanisms.
  3. A Human Rights Act would not upset the separation of powers, or politicise
    the judiciary by permitting courts to ‘make’ policy.
  4. Under a Human Rights Act, Australian courts would be doing the kind of work
    they always do – interpreting laws, balancing competing issues and social
    concerns, and making difficult decisions in complex matters.
  5. The Human Rights Act model preferred by the Commission would not permit
    courts to interpret legislation in a way that is inconsistent with the purpose
    of Parliament (see section 20.9). And it would not permit courts to invalidate
    laws made by Parliament.
  6. If a court was unable to interpret legislation consistently with the rights
    set out in the Human Rights Act, Parliament could be notified of this
    inconsistency and be required to respond publicly.
  7. The final decision on how to deal with that law would remain with the
    elected Parliament. If Parliament chose to amend the law, this would not be the
    result of ‘undemocratic’ interference or pressure from courts. This
    would be democracy in action. For if Parliament decided not to amend a law that
    was found to be inconsistent with human rights, it would have to justify that
    decision to the public. The Australian people would have the ultimate say
    – at the ballot box.
  8. A Human Rights Act may also allow Parliament to limit rights in certain
    situations. However, if that happened, Parliament would have to publicly justify
    those limitations according to criteria that it decided upon in enacting the
    Human Rights Act.
  9. Rather than being undemocratic, a Human Rights Act would mean that the
    public would be better informed about parliamentary decisions that affect their
    human rights. This would promote greater accountability among politicians, and
    strengthen Australia’s democratic system of government.

(e) Human rights are
vague and incapable of application by courts

  1. It has been suggested that a Human Rights Acts would consist of vague
    guarantees or values.
  2. The Commission believes that a Human Rights Act should contain fundamental,
    universal rights sourced in treaties to which Australia is already a party.
    Those human rights have decades of history behind them, and the Australian
    Government has voluntarily agreed to uphold those standards.
  3. Because they are universal, these rights are frequently cast in general
    terms. However, this does not mean that courts will be ‘taking leaps into
    the dark ... they will be walking along judicially well-worn
    paths’.[300] Courts will be
    able to draw upon the considerable body of international and comparative
    jurisprudence that has given content to human rights.

(f) The rights set out
in a Human Rights Act would become ‘frozen in time’

  1. Another common argument against a Human Rights Act is that it would limit
    rights to those included in the Act, and that it would become outdated and
    inflexible.
  2. However, a Human Rights Act could be amended by federal Parliament if
    necessary. For instance, if Australia committed to the protection of new rights,
    these could readily be incorporated into a Human Rights Act.
  3. Further, a Human Rights Act could state that the rights in the Act are not
    exhaustive. Rights recognised elsewhere in Australian or international law would
    not be limited just because they are not included, or are not fully included, in
    the Act. Rights may also be implemented through other legislation or policy.
  4. Finally, periodic independent reviews of a Human Rights Act would guard
    against rights becoming frozen in time.

(g) A
Human Rights Act would be a ‘lawyer’s picnic’

  1. It has been argued that a Human Rights Act would lead to a
    ‘flood’ of litigation.
  2. By embedding human rights considerations into government decision-making, a
    Human Rights Act could actually prevent human rights problems from arising in
    the first place, reducing the need to go to court.
  3. A Human Rights Act is not about lawyers, judges or courts –
    ‘human rights can be about the way your government treats you, every
    day’.[301] The biggest
    impact of a Human Rights Act would be felt outside the courtroom, often by
    people who cannot afford lawyers.
  4. In fact, numerous case studies from the UK, the ACT and Victoria show that
    ordinary people can benefit from Human Rights Act without having to go to
    court.[302]

(h) A Human Rights Act
would distance people from democratic processes

  1. A related argument is that a Human Rights Act would diminish the ability of
    people to participate in democratic processes, because it would lead to an
    increased focus on litigation.
  2. While virtually all new legislation has the potential to generate
    litigation, it seems unlikely that a Human Rights Act would lead to
    significantly increased litigation.
  3. A Human Rights Act would actually enhance democratic processes – the
    public would be informed of decisions by Parliament to limit human rights and of
    the justifications behind those decisions. Armed with this information, the
    public would be better prepared to participate in democratic processes.
  4. A Human Rights Act would not prevent people from participating in political
    campaigns. To the contrary, as a statement of the fundamental rights that
    Parliament has agreed to protect and promote, a Human Rights Act could provide a
    focus for advocacy and a standard to which government should be held
    accountable.
  5. Further, by creating greater transparency in law- and policy-making
    processes (see section 20.8), a Human Rights Act would provide ordinary citizens
    with greater information about the decisions being made by the Parliament and
    executive.
  6. Finally, a Human Rights Act would help to ensure that the needs of
    individuals are considered by government. For example, the UK Human Rights Act
    has improved:

    the relationship between the citizen and the State, by
    providing a framework for policy formulation which leads to better outcomes, and
    ensuring that the needs of all members of the UK’s increasingly diverse
    population are appropriately considered both by those formulating the policy and
    by those putting it into effect. In particular, ... the Act has led to a shift
    away from inflexible or blanket policies towards those which are capable of
    adjustment to recognise the circumstances and characteristics of
    individuals.[303]

  7. The Commission expects that a Human Rights Act would similarly improve the
    relationship between people in Australia and the Australian Government, rather
    than creating distance between them.

(i) A Human Rights Act
would only benefit vocal minorities

  1. It is sometimes argued that a Human Rights Act is an attempt by minority
    groups to impose their views on the majority.
  2. On the contrary, a Human Rights Act would guarantee the rights of all people
    in Australia.
  3. It may be that, in practice, members of the ‘majority’ will have
    limited need to access the causes of action available in a Human Rights Act.
    However, the systems set up by the Act would ensure that the rights of all
    people in Australia are respected. For example, a Human Rights Act would require
    public authorities to respect the rights of individuals, no matter who they are.
    And it would require the executive to consider the impact of new policy on
    individuals, no matter who they are.
  4. A Human Rights Act would also set up a safety net in case a member of the
    ‘majority’ should slip into a more vulnerable group – due to
    unemployment, accident, age, family circumstances or any other reason.
  5. A further argument is that Human Rights Acts in other jurisdictions have
    only benefitted ‘villains’, ‘terrorists’ or
    ‘criminals’.[304] However, even ‘villains’, ‘terrorists’ and
    ‘criminals’ have human rights.
  6. In any event, the 2006 review of the implementation of the UK Human Rights
    Act found that the Act ‘has not seriously impeded the achievement of the
    Government’s objectives on crime, terrorism or
    immigration’.[305]
  7. Overwhelmingly, a Human Rights Act would benefit ordinary people, in their
    everyday interaction with government.

(j) A
Human Rights Act would frustrate the business of government

  1. Another argument is that a Human Rights Act could impede the ability of
    Parliament to deal with pressing problems.
  2. However, a Human Rights Act would not prevent Parliament from passing laws.
    Nor would it allow courts to strike down laws. It would require Parliament to
    consider human rights when making decisions and to publicly justify decisions to
    limit rights. The Commission believes that this would be a good thing, even if
    it came at the expense of speed.
  3. It is sometimes argued that a Human Rights Act could place undue
    bureaucratic burdens upon public authorities.
  4. It is true that, initially, a Human Rights Act may create additional work
    for public authorities. However, a Human Rights Act should work alongside
    existing processes and structures so as to reduce administrative burdens. There
    could also be a ‘lead-in’ period to allow time for public
    authorities to adjust to a Human Rights Act.
  5. Some public authorities may need to review and change their practices to
    comply with the Human Rights Act. Yet, as Byrnes, Charlesworth and McKinnon have
    observed, where the operations of public authorities do not conform to human
    rights standards ‘there may be good reasons for insisting on the
    change’.[306]
  6. By requiring public authorities to consider human rights in decision-making,
    a Human Rights Act could actually lead to greater efficiency, more targeted
    service delivery, and less time spent responding to complaints.

(k) A
Human Rights Act would stifle debate about contentious issues

  1. It has been argued that a Human Rights Act would stifle debate about
    important, and often contentious, matters. The Commission believes a Human
    Rights Act would have the opposite effect.
  2. In the Commission’s view, a Human Rights Act would encourage further
    debate about contentious issues by requiring Parliament to openly consider the
    human rights impacts of legislation. Under a Human Rights Act, Parliament
    would still have the same power to make or change laws that it has now.

(l) A Bill of Rights
didn’t work in the USSR, Pakistan or Zimbabwe, why would a Human Rights
Act work here?

  1. Opponents of a Human Rights Act have emphasised the failure of domestic
    rights guarantees to prevent human rights abuses in certain countries, such as
    the USSR, Nazi Germany, Pakistan or Zimbabwe.
  2. No law operates independently of its social context. The failure to protect
    rights in certain countries cannot be attributed to a human rights law or a bill
    of rights – but rather to complex social and political factors, including
    civil unrest and a lack of respect for the rule of law.
  3. It has also been claimed that the US Bill of Rights did not stop Guantanamo
    Bay. However, it is arguable that the US Government chose this detention site
    precisely because it was attempting to avoid the reach of its constitutional
    safeguards.[307]
  4. A Human Rights Act alone is not the solution to all human rights problems.
    Where democratic institutions break down, human rights protections may be of
    limited value. A Human Rights Act works best when it is embedded within
    governance systems that respect the rule of law.
  5. Australia has a healthy respect for the rule of law, but Australia’s
    system of checks and balances has not always protected the human rights of all
    people in Australia.
  6. A Human Rights Act could build upon Australia’s existing protections.
    It could enhance our democratic system of government by requiring greater
    transparency in, and accountability for, decision-making by elected
    representatives and public authorities.

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21 An
Equality Act for Australia

21.1 Introduction

  1. Discrimination has historically been a significant barrier to the exercise
    and enjoyment of human rights in Australia. This Consultation provides a timely
    opportunity to consider how to strengthen Australia’s anti-discrimination
    laws in order to more effectively protect and promote the right to
    equality.
  2. The Consultation Committee’s Background Paper asks:
    • Are there inconsistencies between existing anti-discrimination laws that
      should be addressed?
    • Would it be simpler to make a complaint if there was one, streamlined
      Commonwealth anti-discrimination law to cover the four existing areas of
      unlawful discrimination, as well as any new areas of unlawful
      discrimination?[308]
  1. The Commission believes, in principle, that Australia’s current
    federal anti-discrimination laws should be replaced by a single Equality Act,
    which broadens the grounds on which discrimination is prohibited.
  2. As a first step, the Australian Government should initiate a comprehensive
    and independent national inquiry into the merits of a single Equality Act.
  3. While the Commission believes that a national Human Rights Act is the key to
    better protecting and promoting human rights in Australia, stronger
    anti-discrimination legislation is necessary even if a Human Rights Act is
    enacted. A Human Rights Act will perform a different and complementary role to
    anti-discrimination laws.

21.2 Australia’s
anti-discrimination laws need to be overhauled

  1. Australia’s anti-discrimination laws provide an important pillar of
    legislative human rights protection. Nevertheless, a significant number of
    limitations and deficiencies persist.
  2. Australia’s anti-discrimination regime has developed in a piecemeal
    fashion over several decades to cover particular attributes in particular
    circumstances, often in response to new international treaty
    obligations.[309] This has
    resulted in inconsistencies and has left gaps, as discussed below.

(a) Federal laws do not
cover some important areas of discrimination

  1. The only types of discrimination proscribed under federal law are
    discrimination on the grounds of race, sex, disability and age and related
    characteristics.[310]
  2. Unlike equivalent legislation in the states and territories, as well as
    overseas, federal anti-discrimination laws do not provide protection against
    discrimination on the basis of attributes such as:

  3. This failure to proscribe discrimination on these grounds sends a poor
    message to the Australian community that discrimination on such grounds is
    acceptable. It also falls well short of implementing Australia’s
    international
    obligations.[320]
  4. In 2009, the UN Human Rights Committee stated that it was ‘concerned
    that the rights to equality and non-discrimination are not comprehensively
    protected in Australia in federal law’ and recommended that Australia
    ‘adopt Federal legislation, covering all grounds and areas of
    discrimination to provide comprehensive protection for the rights to equality
    and
    discrimination’.[321]
  5. Similar concerns have been raised by the UN Committee on Economic, Social
    and Cultural Rights, which recommended in 2009 that Australia ‘enact
    federal legislation to comprehensively protect the rights to equality and
    non-discrimination on all the prohibited
    grounds’.[322]

(b) The protections
provided by federal laws are inadequate

  1. There are many gaps in the protections provided by federal
    anti-discrimination
    laws.[323]
  2. For example, whilst purporting to prohibit discrimination on the basis of
    sex, marital status, pregnancy, potential pregnancy and family responsibilities,
    the Sex Discrimination Act has been recognised by the Senate Legal and
    Constitutional Affairs Committee and the Australian Law Reform Commission as
    falling well short of achieving comprehensive protection on these
    grounds.[324] The protection provided to men and women
    varies.[325] The protection against discrimination on the grounds of family responsibilities
    (being limited to direct discrimination that results in dismissal from
    employment) is minimal when compared to other areas of
    discrimination.[326] Students do
    not have a remedy for sexual harassment if their harasser is a student or
    teacher from a different school, and students under 16 do not have a remedy if
    their harasser is a fellow
    student.[327] Likewise, the
    protection afforded to contract workers and volunteers remains
    unclear.[328]
  3. Similarly, the Race Discrimination Act does not provide protection against
    discrimination and other unlawful conduct on the ground of religion.
  4. Aside from gaps in protection, a number of practical obstacles further limit
    the effectiveness of current federal anti-discrimination laws. For example, the
    various tests for direct discrimination incorporate a requirement that an
    applicant establish less favourable treatment compared with a hypothetical
    ‘comparator’. The practical application of the comparator, however,
    has proved problematic due to difficulties in constructing the same or similar
    circumstances for carrying out the
    comparison.[329] In particular, to
    what extent should circumstances or characteristics related to the protected
    attribute be included or excluded from the comparison, and to what extent can a
    comparison be sensibly made where the relevant experience is unique to one group
    only?[330]
  5. Practical difficulties also arise in relation to proving indirect
    discrimination. Under the Disability Discrimination Act, for example, applicants
    must establish that they have been required to comply with an unreasonable
    requirement or condition with which they cannot comply, but with which a
    substantially higher proportion of persons without their disability can comply.
    This has raised difficulties and uncertainties where, for example, an applicant
    can technically comply with the relevant requirement, but with additional
    hardships not experienced by other persons without their
    disability.[331]
  6. In addition, despite widely recognised difficulties in proving
    discrimination,[332] current
    federal laws generally require the applicant to carry the onus of proof in
    relation to all elements of
    discrimination.[333] This is
    despite the reality that information relating to causation (such as the
    respondent’s basis for treating the applicant in a particular way) is
    typically within the control of the respondent, not the applicant.
  7. Further, each of the laws establishes a proscriptive, negative-based
    standard. Discriminatory conduct is prohibited, rather than
    non-discriminatory or other positive conduct being required.[334] Unlike
    recent developments in the United Kingdom (discussed below), federal
    anti-discrimination laws lack positive obligations to promote equality.
  8. These gaps and limitations undermine Australia’s compliance with its
    international obligations.

(c) There are
inconsistencies between current anti-discrimination laws

  1. In addition to gaps within the laws themselves, there are various
    idiosyncratic differences and inconsistencies between the four federal
    anti-discrimination laws.
  2. These inconsistencies make it hard for people to understand what their
    rights are. They also complicate the process for legal advisers, judges,
    advocates and those on whom the laws impose
    obligations.[335]
  3. For example, each anti-discrimination Act adopts a different definition of
    discrimination and includes different exceptions and defences. The areas of
    public life sought to be regulated vary between the Acts, as does:

    • the onus of proof in indirect discrimination
    • the extent to which the Acts bind the Crown in right of the state
    • the coverage provided to associates of persons with protected
      attributes
    • the provisions relating to victimisation and vicarious and ancillary
      liability.
  4. Even relatively simple aspects of the laws are inconsistent, such as the
    meaning of ‘services’, or whether incitement to engage in
    discrimination is a criminal offence.
  5. Further, there are inconsistencies between the protections provided by
    federal anti-discrimination laws and state and territory anti-discrimination
    laws.

21.3 The
United Kingdom’s improvements to its equality laws

  1. The recent experience of the UK provides valuable lessons for Australia.
  2. Like Australia, anti-discrimination laws in the UK developed in a piecemeal
    fashion over several decades. Also like Australia, each anti-discrimination law
    borrowed heavily from its predecessors, but with differing peculiarities and
    statutory language built up along the way.

(a) The United Kingdom’s review of equality
legislation

  1. In 2005 the UK government made an election commitment to ‘modernise
    and simplify equality
    legislation’.[336] This
    commitment set in motion ‘the most extensive review of equality in Britain
    for over 30
    years’.[337] The government commissioned an independent Equalities Review, aimed at
    identifying the key social inequalities and barriers still facing UK society. It
    also launched the Discrimination Law Review (DLR), tasked with ‘creating a
    clearer and more streamlined equality legislation framework which produces
    better outcomes for those who experience discrimination ... while reflecting
    better regulation
    principles’.[338]
  2. The DLR identified a pressing need to simplify and streamline UK
    anti-discrimination laws, noting:

    Because the law has developed over
    more than 40 years, different approaches have been taken at different times, and
    the law is set out in many different places, in Acts of Parliament, regulations
    and orders. There is widespread agreement that everyone who needs to understand
    discrimination law will benefit from having it in a Single Equality Act which
    simplifies the law as far as this can be
    done.[339]

  3. The government further stated that its streamlining and simplification
    reform proposals would be based on the following principles:

    • existing protections should not be eroded
    • common approaches should be adopted wherever practicable
    • definitions, tests and exceptions should be practical and reflect the
      realities of people’s experience of discrimination and the way business
      operates
    • British discrimination law should comply with the requirements of European
      law.[340]
  1. As a product of this ongoing process of reform, each of the separate
    equality commissions have now been unified into a single Commission for Equality
    and Human Rights, several new grounds of discrimination have been given
    legislative protection and a range of positive duties aimed at combating
    systemic discrimination have been imposed on public
    authorities.[341]
  2. In addition, the government has committed itself to introducing a bill into
    Parliament this year which will unify all UK anti-discrimination laws in a
    single Equality Bill.[342] The
    bill is intended to strengthen existing legislative protections, simplify the
    language of discrimination law and achieve uniform protection and provisions as
    far as possible for all protected
    grounds.[343]

(b) Lessons from the
United Kingdom’s experience

  1. A number of important lessons can be learned from the reform path followed
    in the UK.
  2. Take a measured approach to reforming
    equality laws:
    Effective legislative reform of anti-discrimination laws is
    complex. As the findings of the UK Equalities Review demonstrate, equality is a
    complex social aim confounded by a myriad of complex
    barriers.[344] The DLR process has
    already spanned over four years, yet a draft bill is still not completed. The
    sheer volume of issues, possibilities, gaps and inconsistencies identified by
    the DLR as warranting consideration and reform highlight the need for a measured
    approach rather than a hasty legislative response.
  3. Public consultation helps to reach the right
    balance:
    The DLR process highlights the importance of adequate public
    consultation. Anti-discrimination laws protect and impact on a wide variety of
    social groups. The opportunity for input from all such groups is vital for
    ensuring the achievement of an appropriate and workable legislative balance that
    takes into account all competing needs and interests.
  4. It is vital to have strong commitment from
    government:
    Any review of anti-discrimination laws must be undertaken with a
    firm government commitment to strengthening and improving those laws. As noted
    above, the UK Government publicly committed that the review would not erode
    existing protections.[345] This
    commitment was an essential reassurance to groups most vulnerable to
    discrimination that hard-fought gains in legislative protection would not be
    wound back under the guise of reform.
  5. Any review must be comprehensive: As the
    DLR has illustrated in the UK, each of the separate anti-discrimination laws
    interacts with and informs the others. The same is true in Australia. The Senate
    Standing Committee on Legal and Constitutional Affairs (Senate Standing
    Committee) has recently conducted reviews of the Sex Discrimination Act as well
    as a review of proposed changes to the Disability Discrimination Act and the Age
    Discrimination Act.[346] In 2004
    the Productivity Commission also released its report of its review of the
    Disability Discrimination
    Act.[347] The Commission welcomes
    these initiatives. However, these reviews have highlighted the high level of
    interactivity between our existing anti-discrimination laws. It is only through
    reviewing all federal anti-discrimination laws together that the most effective
    opportunities for harmonising provisions become truly apparent, as well as the
    areas in which specifically tailored provisions are required.

21.4 Australia
should have a national inquiry into equality protection

  1. The Commission is mindful that the Consultation Committee might feel
    reluctant about recommending a further consultation process. However, the
    Commission believes that a comprehensive inquiry into federal
    anti-discrimination laws is an appropriate recommendation in light of the gaps
    and flaws identified above and the importance of protecting the right to
    equality.
  2. Moreover, it is clearly beyond the scope of the present Consultation to
    undertake the work required to effectively review Australia’s existing
    anti-discrimination laws and offer an appropriate range of reform options. The
    recent reviews of the Sex Discrimination Act and the Disability Discrimination
    Act have already given a national inquiry an invaluable head-start. However, a
    dedicated and comprehensive inquiry into all federal anti-discrimination laws is
    required to properly finish the job.
  3. The Commission recommends that a national inquiry on the protection of
    equality in Australia should:

    • identify and redress significant gaps within the existing federal
      anti-discrimination laws
    • streamline statutory language and concepts
    • initiate public discussion on whether additional grounds of discrimination
      warrant legislative protection
    • lead the process of national harmonisation of federal, state and territory
      anti-discrimination laws
    • consider other potential options for protecting and promoting the right to
      equality in Australia.

(a) The Australian Law
Reform Commission should conduct a national inquiry

  1. In its recent review of the Sex Discrimination Act, the Senate Standing
    Committee recommended that the Australian Human Rights Commission should
    undertake a national inquiry to review Australia’s existing federal
    anti-discrimination laws and consider the merits of a single Equality
    Act.[348]
  2. While the Commission agrees with the Senate Standing Committee’s
    recommendation that such a national inquiry needs to be undertaken, it does not
    agree that the Commission is the most appropriate body to undertake that
    inquiry.
  3. First, the inquiry would inevitably need to examine the powers, functions
    and institutional arrangements of the Commission itself.
  4. Secondly, as the federal body responsible for receiving, investigating and
    conciliating discrimination complaints, the Commission is an integral component
    of the anti-discrimination regulatory system.
  5. An independent body such as the Australian Law Reform Commission (ALRC)
    would be a more appropriate choice as it would not be as vulnerable to
    criticisms of having a vested interest in the outcome of the inquiry.
  6. However, the Commission could assist such an inquiry by acting in an
    advisory capacity. For example, the Commission could participate in an advisory
    board to the ALRC, as it has done in other ALRC inquiries.

(b) A national inquiry should consider
harmonisation of federal and state anti-discrimination laws

  1. The Commission notes that the Standing Committee of Attorneys-General has
    already commenced a process for harmonising the federal and state
    anti-discrimination jurisdictions generally. The Commission has previously
    commented that there are obvious advantages to such harmonisation, provided that
    it complies with certain guiding principles and does not erode existing
    protections by adopting a ‘lowest common denominator’
    approach.[349]
  2. A national review of Australia’s federal anti-discrimination laws
    would provide an appropriate first step towards national harmonisation, by
    formulating a ‘best practice’ model at the federal level to lead the
    harmonisation process.

21.5 Australia
should have a single Equality Act

  1. A key question for a national inquiry would inevitably be whether to unify
    discrimination laws into a single Equality Act.
  2. In its submission to the Senate Standing Committee’s review of the Sex
    Discrimination Act, the Commission observed that there were potential concerns
    with pursuing a single Equality Act. Those concerns include the consequences of
    losing dedicated laws that have ‘represented important national statements
    of the right to non-discrimination for particular groups within
    society’.[350]
  3. The Senate Standing Committee similarly noted that certain submissions had
    expressed concerns about a single Equality Act due to the ‘iconic
    status’ of anti-discrimination laws for particular groups in the
    community.[351]
  4. A national inquiry would provide an appropriate forum for these concerns to
    be debated.[352]
  5. However, having had an opportunity to consider the issues further, the
    Commission is increasingly of the view that a single Equality Act is the most
    appropriate way to promote
    equality.[353]

(a) A single Equality
Act would simplify anti-discrimination law

  1. A single Equality Act would consolidate the disparate anti-discrimination
    laws into a single Act, with consistent drafting of definitions and key
    concepts. It would also help to clarify that all forms of discrimination on all
    relevant grounds have equal status.
  2. Discrimination is a complex social phenomenon that cannot always be
    categorised neatly into separate Acts. The current laws enable individuals to
    identify more than one ground and/or Act in their discrimination complaint.
    However, consolidating each of the grounds within one Act may assist victims of
    intersectional discrimination to more easily conceptualise and articulate their
    complaint by asserting each aspect of their discrimination with consistent
    statutory language under the one Act.
  3. While opinions differed in the UK as to the detail of the various DLR reform
    proposals, the UK government reported that nearly all of the 4,226 submissions
    to the DLR agreed with the overarching objective of streamlining the existing
    anti-discrimination laws into a single Equality
    Act.[354] In addition to the
    proposed amendments in the UK, a single Act omnibus model also already operates
    in Canada and New Zealand, as well as in each of the Australian states and
    territories.[355] It therefore
    offers a well tried and tested model for federal reform.

(b) Special purpose Commissioners should be
retained

  1. To the extent that a single Equality Act might dilute the group-specific
    focus of the current anti-discrimination laws, the Commission considers that
    this underscores the importance of retaining the current statutory role of
    special-purpose Commissioners within the Commission: the positions of Race, Sex,
    Disability, and Aboriginal and Torres Strait Islander Social Justice
    Commissioners.[356] This would
    help to ensure that the specific needs and interests of particular groups most
    vulnerable to discrimination continue to be
    represented.

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.

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22 Australia’s
Constitution should be amended to protect and promote human rights

22.1 Introduction

  1. The Commission believes that a statutory Human Rights Act, rather than a
    constitutionally-entrenched bill of rights, is currently the best option for
    human rights protection in Australia. However, certain reforms to the Australian
    Constitution are long overdue.
  2. Australia’s Constitution:
    • does not recognise Indigenous peoples.
    • permits laws to be made that discriminate on the basis of race.
  3. The rights to equality and to be free from discrimination are so fundamental
    to a fair society that the Australian Government should take steps towards
    entrenching these rights in the Constitution.
  4. In particular:
    • Indigenous peoples should be recognised in the preamble to the Constitution
    • section 25 should be removed from the Constitution
    • the Constitution should be amended to guarantee racial equality and to
      proscribe discrimination on the ground of race
    • there should be further dialogue about the need to amend the Constitution to
      guarantee a general right to equality and freedom from
      discrimination.

22.2 Recognise
Indigenous peoples in the preamble

  1. The Constitution does not acknowledge Indigenous peoples as first peoples
    and traditional owners of the land now known as Australia.
  2. In fact, the Constitution makes no reference to Aboriginal and Torres Strait
    Islander peoples at all.
  3. There is enormous symbolic importance in recognising the rights and unique
    status of Indigenous peoples in the preamble to the Constitution. It would go
    some way towards redressing the historical exclusion of Indigenous peoples from
    Australia’s foundational documents and national identity.
  4. A new preamble would not have direct legal effect or give rise to
    substantive rights or obligations. For this reason, it is of the utmost
    importance that recognition of Indigenous peoples in the preamble to the
    Constitution be in addition to, rather than instead of, other constitutional
    reforms aimed at prohibiting discrimination.
  5. A proposal for a new preamble to the Constitution was put to a referendum in
    November 1999. The proposal included limited recognition of Indigenous peoples.
    No state or territory recorded a majority vote in favour of the proposal, with
    only 39.34% of the total Australian population voting in favour.
  6. Part of the reason for the failure of this proposal was poor drafting and a
    poor consultation process. Many Australians who support recognition of
    Indigenous peoples in the preamble voted against the proposal because of
    dissatisfaction with the language used.
  7. A lesson from this failed attempt at constitutional change is that there
    must be extensive, genuine engagement with Indigenous peoples and the broader
    Australian community to determine the wording of any proposed preamble. A
    failure to do so could undermine community support for constitutional change.

22.3 Remove
section 25 from the Constitution

  1. Section 25 of the Constitution reflects a time when there were racist
    restrictions on the right to vote. It provides that, for the purposes of
    determining the composition of the House of Representatives:

    ...
    if by the law of any State all persons of any race are disqualified from voting
    at elections for the more numerous House of the Parliament of the State, then,
    in reckoning the number of the people of the State or of the Commonwealth,
    persons of that race resident in that State shall not be counted.

  2. The section clearly recognises that states may exclude voters on racial
    lines. As the Council for Aboriginal Reconciliation has stated, ‘[s]uch a
    provision is inappropriate for any democratic nation, particularly one whose
    people come from many different
    backgrounds’.[357] Similarly, the 1988 Constitutional Commission described section 25 as
    ‘odious’ and recommended that it be
    repealed.[358]
  3. A constitutional provision that contemplates denial of the right to vote on
    the basis of race has no place in an inclusive, multicultural Australia.
  4. The Commission therefore believes that section 25 should be removed from the
    Australian Constitution.

22.4 Protect
racial equality in the Constitution

  1. The removal of section 25 should be accompanied by the insertion of a clause
    to guarantee racial equality and to prohibit racial discrimination.
  2. Neither a statutory Human Rights Act, nor an Equality Act (discussed in
    sections 20 and 21 above) would prevent Parliament from introducing laws that
    discriminate on the basis of race.
  3. For example, the federal Parliament exercised its power to override the
    operation of the Racial Discrimination Act when it passed the Northern Territory
    Emergency Response legislation (see the case study in section 11.1 above).
  4. Constitutional protection of racial equality would prevent legislative
    protections against racial discrimination from being overridden or suspended by
    Parliament. It would complement and strengthen the protections contained in a
    Human Rights Act and federal anti-discrimination laws.
  5. Constitutional reform to prohibit racial discrimination has been a constant
    and prominent feature of debates about protecting the rights of Indigenous
    peoples. For example, the Council for Aboriginal Reconciliation recommended in
    its final report that ‘[t]he Commonwealth Parliament prepare legislation
    for a referendum which seeks to ... introduce a new section making it unlawful
    to adversely discriminate against any people on the grounds of
    race’.[359]
  6. The Commission recommends constitutional reform to prevent discrimination
    against Indigenous peoples, as discussed below.

(a) Section
51(xxvi) could be amended

  1. Section 51(xxvi) of the Constitution authorises the Parliament to pass
    legislation with respect to the ‘people of any race for whom it is deemed
    necessary to make special laws’.
  2. The question of whether section 51 (xxvi) empowers the Parliament to enact
    laws that are detrimental to Indigenous peoples is not considered fully
    settled.[360] However, Chief
    Justice French has commented that the ‘weight of High Court authority
    supports the view that s 51(xxvi) authorises both beneficial and adverse
    laws’.[361]
  3. One option for protecting racial equality could be to amend section 51(xxvi)
    to ensure that the Parliament could only make racially-specific laws ‘for
    the benefit’ of the people of a particular race.
  4. However, the question of what constituted a ‘benefit’ could be
    subjective and controversial.
  5. Further, Parliament could rely upon other powers to enact legislation that
    discriminated on the basis of race, such as the ‘Territories power’
    contained in section 122 of the
    Constitution.[362]

(b) It
would be better to add a new racial equality and non-discrimination clause

  1. An alternative, and preferable, option is for the Constitution to be amended
    to include a clause prohibiting discrimination on the basis of race. This would
    mean that Parliament would not have the power to introduce laws that
    discriminate on racial grounds.
  2. A clause protecting racial equality and prohibiting discrimination on the
    basis of race would be consistent with Australia’s international human
    rights obligations. In 2005, the UN Committee on the Elimination of Racial
    Discrimination expressed concern ‘about the absence of any entrenched
    guarantee against racial discrimination that would override the law of the
    Commonwealth’ and recommended that Australia ‘work towards the
    inclusion of an entrenched guarantee against racial discrimination in its
    domestic
    law’.[363]

22.5 Initiate
dialogue about general equality protection in the Constitution

  1. The Commission believes that there should be a national dialogue about
    whether to reform the Australian Constitution to include a general guarantee of
    the right to equality (that is, to protect the right to equality for all people
    in Australia, not just members of different racial groups).
  2. There will need to be extensive community consultation and engagement in
    order to build the understanding and awareness necessary for a proposal to amend
    the Constitution to succeed at a referendum.
  3. As the Australian Law Reform Commission has observed, there are
    ‘formidable obstacles to amending Australia’s Constitution. ...
    Australia’s record of changing its Constitution through this process is
    poor. Without support from both major political parties a referendum is likely
    to fail’.[364]
  4. The Commission recognises that complex questions will need to be examined
    before a proposal for constitutional protection of equality can be put to the
    Australian people.
  5. The Commission recommends that there be a national inquiry about the need
    for constitutional protection of equality, to properly consider key questions
    such as:

    • the exact wording of a constitutional clause to protect the right to
      equality
    • the extent to which specific grounds of protection should be listed
    • whether the clause should include any possible limitations on the right to
      equality.

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.

Back to top

23 Enhance
human rights education in Australia

23.1 Introduction

  1. Human rights education is fundamental to building a human rights culture
    where the rights of all people in Australia are understood and respected.
  2. As discussed above in section 20.13, a Human Rights Act should be
    accompanied by a broad human rights education program aimed at the general
    community, the public sector and educational institutions.
  3. However, other forms of human rights education are also needed, including
    programs aimed at:

    • the broad community
    • federal public servants and administrative decision makers
    • schools and universities.

23.2 Australia
has an international obligation to provide human rights education

(a) Australia’s general obligation to provide
human rights education

  1. Australia’s duty to provide human rights education is set out in
    several international human rights
    agreements.[365]
  2. The Universal Declaration states that ‘[e]ducation shall be directed
    to ... the strengthening of respect for human rights and fundamental
    freedoms’.[366]
  3. Further, article 29 of the CRC requires Australia to direct children’s
    education to:

    • the development of respect for human rights and fundamental freedoms, and
      for the principles enshrined in the Charter of the United Nations
    • the development of respect for the child's parents, his or her own cultural
      identity, language and values, for the national values of the country in which
      the child is living, the country from which he or she may originate, and for
      civilizations different from his or her own
    • the preparation of the child for responsible life in a free society, in the
      spirit of understanding, peace, tolerance, equality of sexes, and friendship
      among all peoples, ethnic, national and religious groups and persons of
      indigenous origin.
  4. In addition, the UN Human Rights Committee has said that Australia
    should:

Consider adopting a comprehensive plan of action for human
rights education including training programmes for public officials, teachers,
judges, lawyers and police officers on rights protected under the Covenant and
the First Optional Protocol. Human rights education should be incorporated at
every level of general
education.[367]

(b) The World Program of Human Rights
Education

  1. Australia has also made commitments under the World Program for Human Rights
    Education (WPHRE).
  2. The WPHRE was initiated in January 2005 as a follow up to the United Nations
    Decade for Human Rights Education (1995-2005). The Australian Government has
    expressed broad support for this program.
  3. The first phase of the WPHRE was extended to 2009 so that UN Member States
    could have a four year period to report on progress in developing national
    programs for human rights education. Reports for this period are due in
    September 2009. A second phase of the World Programme begins on 1 January
    2010.

23.3 Human
rights education in the community

  1. As outlined in section 20.13, if Australia adopts a Human Rights Act, there
    should be broad and accessible community education about human rights and the
    operation of the Act.
  2. However, community education about human rights is important regardless of
    whether Australia adopts a Human Rights Act.
  3. Broad education about human rights, and the relevance of human rights to
    people’s lives, should lead to a culture of increased tolerance and
    respect. Education should focus on ensuring that all people in Australia
    understand their own rights and their responsibility to respect the rights of
    others.
  4. It is also important to develop specific human rights education initiatives
    to address the needs of communities facing particular human rights issues. For
    example, the Commission was funded in June 2007 by the Attorney-General’s
    Department to develop and deliver training aimed at preventing family violence
    in Indigenous communities. This initiative was to achieve one of the aims of the
    Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities
    and the COAG Communiqué of July 2006:

    COAG has... agreed to
    invest in community legal education to ensure Indigenous Australians are
    informed about their legal rights, know how to access assistance and are
    encouraged to report incidents of violence and
    abuse.[368]

  5. In March, August and December 2008 the Commission delivered training to
    Community Legal Educators across Australia. To date, approximately half of the
    existing Family Violence Prevention Legal Services of Australia have had access
    to this training.
  6. The training program provides 40 hours of face to face training and resource
    materials relevant to family violence and tailored to the legislation and
    guidelines of each state and territory. The course examines the legislation
    relevant to family violence including child abuse and child neglect, sexual
    assault, physical assault and threatening and other violent behaviours. It
    covers protocols and explanations from each state and territory on the Child
    Protection Process, Family Violence Orders and duty of care and reporting
    guidelines. The course also covers content about Australia’s justice
    system and courts; Indigenous customary laws and practice; human rights
    provisions relevant to violence prevention and community development theory and
    practice.
  7. The training program has been mapped against the Certificate III,
    Certificate IV and the Diploma courses in National Indigenous Legal
    Advocacy. The Commission is the copyright holder of these nationally
    accredited courses. Upon successful completion of all training assessment tasks,
    participants are issued with a certificate of completion which supports
    applications for recognition of prior learning.
  8. The two evaluations of the training program contain evidence of a high
    degree of satisfaction with the quality of the training, the relevance of the
    materials and the delivery of the course content.
  9. Unfortunately the government funding was for a limited period and there are
    no additional funds for the future. This means that the remaining Family
    Violence Prevention Legal Services of Australia will not have access to the
    training. In addition, there is evidence of a high degree of interest in the
    training outside of this sector. The Commission has had requests for the
    training from Indigenous Justice Groups, state government violence prevention
    workers, paralegal employees, non-government organisations, training
    institutions and government departments.
  10. If the Commission received funding aimed at human rights education in
    future, the Commission could deliver programs similar to that described above.

23.4 Human
rights education for federal public servants and administrative decision-makers

  1. Education and training about human rights is also important for federal
    public servants and administrative decision-makers regardless of whether or not
    Australia adopts a Human Rights Act.
  2. As outlined in section 20.11, experience in other jurisdictions demonstrates
    that understanding about human rights leads to better public service delivery.
    Importantly, this contributes to preventing breaches of human rights before they
    occur.

23.5 Human
rights education in Australian schools

  1. ‘Human rights’ does not exist as a discrete subject in any state
    or territory curricula. However, an understanding of rights and responsibilities
    – and their relevance to young people as active citizens – is an
    identified learning outcome in a range of secondary school subjects.
  2. In schools, human rights is embedded in the ‘Civics and
    Citizenship’ National Statements for Learning, which all states have
    either added on to or used to underpin their Society and Environment curriculum
    area. However, future funding for ‘Civics and Citizenship’ from the
    Department of Education, Employment and Workplace Relations is unclear after
    2009.
  3. On 5 December 2008, the Melbourne Declaration of Educational Goals for Young
    Australians was issued by all Australian Ministers for
    Education.[369] It includes a
    commitment to supporting all young Australians to become active and informed
    citizens, and it sets the direction for Australian schooling over the next ten
    years.
  4. The current transition towards a national curriculum includes key learning
    areas of English, Maths, Science and History. Human rights content overlaps with
    each of these areas, particularly History. Developed by the interim National
    Curriculum Board, a framing paper on national curriculum in History notes the
    links between History and Civics and Citizenship education, including the role
    played by human rights principles and institutions.
  5. Human rights also has a strong presence in all subjects within the key
    learning areas of Society and Environment (for example, Geography and Legal
    Studies), as well as in Career Education and Personal Development, Health and
    Physical Education.
  6. However, currently there is no coherent approach to the topic of
    ‘human rights’ throughout other curriculum in the states and
    territories. Educators of all curriculum areas require professional support to
    adequately teach the human rights content.
  7. There are several human rights education centres at the university level.
    However, none of these has a formally recognised national role other than the
    National Centre for Human Rights Education (NCHRE). The NCHRE was established at
    RMIT University in Melbourne and launched in December 2007.
  8. There is currently no recognised ‘clearing house’ for human
    rights education material in Australia. While there are numerous published
    resources, there are no official distribution channels, and no support for the
    professional development of educators.

(a) The
Commission’s education materials for Australian schools

  1. The Commission has specific functions relating to human rights
    education:

    • to promote an understanding and acceptance, and the public discussion, of
      human rights in Australia
    • to undertake research and educational programs for the purpose of promoting
      human rights.
  2. The Commission has a strong track record of working with Australia’s
    state and territory education departments, schools and community organisations
    to promote an understanding of, and commitment to, human rights education.
  3. The Commission has developed practical human rights education resources and
    programs through its Human Rights Education Program. The program is guided by a
    clear set of education principles and learning outcomes, and the approach
    supports the goals and direction of the WPHRE.
  4. The Human Rights Education Program includes a range of interactive,
    resource-rich, web-based learning modules for use in the classroom with students
    ranging in age from years 10 to 17. The Commission has linked these core human
    rights education modules with curriculum frameworks from Education Departments
    across each Australian state and territory. Links have been established in a
    range of key learning areas: Studies of Society and Environment (especially
    Aboriginal Studies and Australian Studies), English, Civics and
    Citizenship/Discovering Democracy, Geography, History, and Drama.
  5. The Commission's human rights education resources are available online at:
    www.humanrights.gov.au/education.
  6. Unfortunately, the Commission’s current budget insufficient to allow
    production of a full range of human rights education materials, or adequate
    distribution and promotion of these materials.

(b) Ways to improve
human rights education in Australian schools

  1. In order to fulfil the requirements of the WPHRE, the Commission recommends
    that there be an audit (situational analysis) of all of the human rights
    education initiatives (and curriculum links) that currently exist in Australian
    education systems.
  2. This situational analysis should be the precursor to developing a national
    plan for human rights education.
  3. Some of the areas that could be covered in a national plan for human rights
    education include:

    • consideration on how best to incorporate human rights education across the
      curriculum
    • mechanisms to achieve pre-service and in-service human rights training and
      professional support for all teachers in Australian schools
    • increased production, distribution and promotion of human rights education
      curriculum materials.

Recommendation 36: The
Australian Government should resource a significantly enhanced nation-wide human
rights education program.

Back to top

24 Enhance
the role of the Australian Human Rights Commission

  1. The Consultation Committee’s Background Paper acknowledges the role
    played by the Commission in protecting and promoting human rights in Australia.
    It invites people to consider the following questions:

    • Should the jurisdiction of the Commission be expanded to enable it to
      inquire into and conciliate a broader range of human rights
      complaints?
      The Commission’s answer: Yes.
    • Should the Commission have a greater role in scrutinising legislation for
      human rights compatibility?
      The Commission’s answer:
      Yes.
    • How should the Australian Government respond to the Commission’s
      recommendations, such as those contained in Commission reports that are tabled
      in
      Parliament?[370]
      The
      Commission’s answer
      : Formally and promptly.
  1. The Commission has various statutory functions, set out in the HREOC Act,
    and outlined in section 16 of this submission. They are wide ranging, and enable
    the Commission to undertake a broad range of activities aimed at the promotion
    and protection of human rights. However, the Commission’s ability to
    promote and protect human rights is limited for the reasons discussed in section
    16 of this submission.
  2. As Australia’s national human rights institution, the Commission could
    play a significant role in implementing and promoting a Human Rights Act, if one
    was enacted. Section 20.15 of this submission discusses in detail the
    Commission’s potential roles under a Human Rights Act, including:

    • promoting public awareness and understanding of a Human Rights Act
    • scrutinising bills and laws for compatibility with a Human Rights Act
    • investigating and conciliating complaints under a Human Rights Act
    • intervening in cases involving a Human Rights Act
    • notifying the Attorney-General if a court finds that it cannot interpret a
      law consistently with the Human Rights Act
    • reviewing policies and practices of public authorities under a Human Rights
      Act
    • preparing an annual report on the operation of a Human Rights
      Act.
  3. Regardless of whether Australia adopts a Human Rights Act, there is a strong
    case for enhancing the functions and powers of the Australian Human Rights
    Commission, as outlined below.

24.1 Empower
the Commission to scrutinise bills and laws for human rights
compatibility

  1. Section 16 of this submission outlines the limitations of the
    Commission’s current roles in scrutinising bills and laws for human rights
    compatibility.
  2. Currently the Commission can examine existing laws for their compatibility
    with human rights (as defined in the HREOC
    Act).[371] However, the Australian
    Government is not required to respond to a Commission report which shows that a
    law is incompatible with human rights. Further, the Commission can only examine
    bills at the Minister’s request. It has never been requested to do so.
  3. As suggested in section 20.15, if Australia adopts a Human Rights Act, the
    Commission should be given the power to examine whether bills and laws are
    compatible with the human rights set out in the Human Rights Act.
  4. The examination of laws before they are passed is a powerful tool for
    preventing human rights breaches from occurring. The Commission should therefore
    be given the power to examine bills for their compatibility with human rights
    regardless of whether Australia has a Human Rights Act. This power should be
    discretionary and self-initiated.
  5. When the Commission examines a bill or a law and reports to Parliament, the
    Attorney-General should be required to table both the Commission’s report,
    as well as a government response, within a specified time period.

24.2 Empower
the Commission to intervene in cases that raise human rights issues

  1. Section 20.15 of this submission outlines the Commission’s current
    intervention and amicus roles, and suggests that the Commission should
    have the power to intervene in court or tribunal proceedings involving the
    interpretation or application of a Human Rights Act.
  2. Regardless of whether Australia adopts a Human Rights Act, the Commission
    should have the power to intervene, as of right, in all cases that raise
    significant human rights issues.
  3. This power would allow the Commission to bring its human rights expertise to
    cases involving significant human rights issues. It would provide the Commission
    with an important opportunity to inform and assist lawyers, judges and
    complainants about the relevance of human rights to legal issues.

24.3 Empower
the Commission to consider a broader range of human rights

  1. As discussed in section 16.2, the Commission’s human rights functions
    are currently limited by the definition of ‘human rights’ in section
    3 of the HREOC Act, which includes those rights set out in the instruments
    scheduled to the HREOC Act and other designated ‘relevant international
    instruments’.
  2. If Australia adopts a Human Rights Act, the Commission should have the power
    to conduct its functions with respect to all of the rights set out in that
    Act.
  3. However, regardless of whether Australia adopts a Human Rights Act, the
    Commission believes that its jurisdiction should be expanded to cover the human
    rights in the:

    • ICESCR[372]
    • CAT
    • Declaration on the Rights of Indigenous Peoples.
  4. Australia is already a party to these treaties, and has expressed its
    support for this declaration.
  5. Section 47 of the HREOC Act enables the Attorney-General to declare an
    instrument which has been ratified by Australia (or a declaration that has been
    adopted by Australia) to be an international instrument relating to human rights
    for the purposes of the HREOC Act.
  6. The legal effect of declaring an instrument under section 47 is that the
    rights contained within that instrument will then fall within the definition of
    ‘human rights’ in sections 3 and 46A of the HREOC Act, and the
    Commission’s statutory ‘human rights’ functions can then be
    exercised in relation to the rights contained in the declared instruments.
  7. Declaring these additional instruments under the HREOC Act would mean that
    the Commission could properly promote public awareness and understanding of the
    rights contained in these instruments as well as inquire into, and help resolve,
    a broader range of human rights complaints.
  8. The Commission could play a significant role promoting economic, social and
    cultural rights. This would be particularly important if these human rights were
    excluded from court action under a Human Rights Act.
  9. The Commission currently has the power to investigate and conciliate some
    complaints of economic, social and cultural rights. The Commission can receive
    complaints about breaches of the rights set out in the CRC, if the complaint is
    against the Commonwealth or one of its agencies. The CRC includes a wide range
    of economic, social and cultural rights.
  10. Further, the Commission has extensive expertise in analysing and reporting
    to Parliament about the protection and promotion of economic, social and
    cultural rights. For example:

    • The Aboriginal and Torres Strait Islander Social Justice Commissioner has
      powers to consider economic, social and cultural rights in the annual Social
      Justice Reports. These reports provide comprehensive analyses of the protection
      and promotion of the human rights of Indigenous peoples.
    • A last resort?, the report of the National Inquiry into Children in
      Immigration Detention included consideration of all of the economic, social and
      cultural rights contained in the
      CRC.[373]
    • The National Inquiry into Rural and Remote Education included detailed
      analysis of the protection of the right to education for children in rural and
      remote Australia.[374]
  11. Finally, the Commission has conducted comprehensive policy work on economic,
    social and cultural rights such as the right to health in the Close the Gap
    campaign. The Commission’s involvement in this campaign is described in
    Appendix 2 to this submission.

24.4 Empower
the Commission to investigate human rights breaches wherever they
occur

  1. Under the HREOC Act, the Commission has the power to inquire into acts and
    practices that may be inconsistent with or contrary to human
    rights.[375]
  2. On an initial reading, this appears to be quite a broad function, allowing
    the Commission to conduct inquiries into a wide range of human rights issues in
    Australia. However, because of the restrictive way this power is defined in the
    HREOC Act, the Commission’s human rights inquiry function is effectively
    limited to actions done by or on behalf of the federal
    government.[376]
  3. This limits the Commission’s ability to conduct formal inquiries into
    systemic and widespread human rights issues concerning state or territory laws
    or bodies other than the federal government. For example, the Commission’s
    jurisdiction does not extend to private employers, state laws and practices, or
    other bodies that may be acting in breach of human rights.
  4. This can be compared to the Commission’s power to inquire into
    workplace discrimination matters, which extends to conducting inquiries into
    systemic practices that may constitute discrimination, including the acts and
    practices of state governments and private
    companies.[377]
  5. The Commission believes that its formal inquiry function under the HREOC Act
    should empower it to inquire into human rights issues or concerns, regardless of
    where in Australia they occur and regardless of whether they occur under a
    state, territory or federal law. This would allow the Commission to address a
    broader range of systemic human rights issues across Australia.
  6. Under this broader inquiry function, the Commission should retain its
    current inquiry-related powers. These include the power to require the giving of
    information, the production of documents and the examination of
    witnesses.[378]

24.5 Provide
enforceable remedies for complaints made under the HREOC Act

  1. As outlined in section 16.5, currently there are no enforceable remedies for
    complaints of human rights breaches made under the HREOC Act.
  2. This means that a person who makes a complaint of unlawful discrimination
    (for example discrimination on the basis of disability) against a federal
    government agency can commence court proceedings and has access to an
    enforceable remedy. However, a person who makes a complaint against the same
    government agency, of a breach of a human right not covered by the
    anti-discrimination laws (for example, the right to be free from cruel, inhuman
    and degrading treatment or punishment), does not have access to an enforceable
    remedy.
  3. The protection of human rights would be significantly enhanced if there were
    enforceable remedies for complaints made under the HREOC Act.
  4. 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.

24.6 Require
the government to respond to Commission recommendations

  1. Currently, there is no obligation on the government to respond to Commission
    reports that are tabled in Parliament, including those regarding:

    • individual complaints
    • inquiries into systemic human rights issues (for example A last
      resort?
      , the report of the National Inquiry into Children in Immigration
      Detention)
    • the annual Social Justice Report and Native Title Report.
  2. Commission reports about individual complaints can include recommendations
    for preventing repetition of an act or continuation of a practice, as well as
    the payment of compensation or other
    remedies.[379] However, as
    described above the Commission cannot enforce its recommendations, and the
    Australian Government is not required to respond to them.
  3. Similarly, the Australian Government is not required to respond to the
    Commission’s other human rights recommendations.
  4. The Commission believes that, at a minimum, the Australian Government should
    be required to provide a response to the Commission’s individual complaint
    reports indicating how the government intends to address the Commission’s
    recommendations. This could be achieved by amending the HREOC Act to require
    that the Attorney-General table a response to the Commission’s reports in
    Parliament within a set period, for example six months after the report is
    tabled.
  5. In the case of other 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
    set period of time, again possibly six months after the report is
    tabled.[380] For example, this
    would include:

    • the annual Social Justice Report and Native Title Report, prepared by the
      Aboriginal & Torres Strait Islander Social Justice Commissioner
    • reports following National Inquiry processes
    • reports prepared by the Commission and tabled in Parliament under any new
      statutory functions granted to the Commission under a Human Rights
      Act.
  6. The government response should indicate how the government intends to
    address the recommendations made by the Commission in its report.
  7. The Senate Legal and Constitutional Committee has made recommendations to
    this effect in previous inquiries. For example, in its 2000 inquiry into
    progress towards reconciliation the Committee recommended that ‘the
    Government should be required by statute to respond to the reports of the
    Aboriginal and Torres Strait Islander Social Justice
    Commissioner’.[381]

24.7 Better
resource the Commission’s education work

  1. As outlined in section 23, one of the major gaps in the protection of human
    rights in Australia is that many people are currently unaware of what human
    rights are and how they are (or are not) protected in Australia. There is a need
    to build greater awareness through human rights education in schools,
    universities and the broader community.
  2. Regardless of whether Australia adopts a Human Rights Act, human rights
    education in Australia should be significantly enhanced. The Australian
    Government should invest adequate resources in ensuring that the Commission can
    fully and effectively carry out its statutory human rights education functions.

24.8 Financially
support the Commission to properly carry out its functions

(a) The Commission does
not have adequate resources to fulfil its existing functions

  1. The Commission currently has a broad range of statutory functions related to
    promoting and protecting human rights in Australia, which it fulfils to the best
    of its ability. In practice, however, the Commission’s capacity to fulfil
    its statutory functions is often constrained by insufficient funding.
  2. The Commission has been consistently underfunded over the past decade or
    more. In 1996, the Commission’s funding was reduced by 40% (applied over a
    four year period). The Commission had to close state and territory offices, and
    the number of Commissioners was reduced from six to three. This has left
    Commissioners doubling up on portfolios.
  3. The Commission faced another significant budget cut in the 2008-2009
    financial year. The Commission’s budget appropriation for the year was
    $13.55 million, representing a 12.5% cut compared to the previous
    year.[382] To accommodate this
    decrease, each of the units across the Commission was forced to reduce its
    operating budget by 14.5%.[383] In
    the 2009-2010 financial year the Commission’s operating budget will be
    discounted by 19% (from the base level of 2007-2008).

(b) If new functions
are added, new funding must be provided

  1. Under current funding levels, the Commission is struggling to carry out its
    existing functions. It does not have the capacity to undertake new functions in
    addition to its existing ones. Therefore, if the Commission is granted new
    functions (under a Human Rights Act or otherwise) the Australian Government will
    need to ensure that sufficient additional resources are provided to the
    Commission to enable it to carry out those functions.

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.

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[1]International Covenant on
Civil and Political Rights
(ICCPR), 1966, art 26. At http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (viewed 22 May 2009).
[2] ICCPR,
above, art 2(1); International Covenant on Economic, Social and Cultural
Rights
(ICESCR), 1966, art 2(2). At http://www.unhchr.ch/html/menu3/b/a_cescr.htm (viewed 22 May 2009).
[3]Universal Declaration of Human Rights (Universal Declaration), GA
Resolution 217A(III), UN Doc A/810 (1948), preamble. At http://www.un.org/en/documents/udhr/ (viewed 22 May 2009).
[4] Universal
Declaration, above, preamble.
[5] ICCPR, note 1,
preamble; ICESCR, note 2,
preamble.
[6] Australia is
currently not a party to another major international human rights treaty, the International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families
, 1990. At http://www.unhchr.ch/html/menu3/b/m_mwctoc.htm (viewed 29 May 2009).
[7]International Convention on the Elimination of All Forms of Racial
Discrimination
(CERD), 1965. At http://www.unhchr.ch/html/menu3/b/d_icerd.htm (viewed 29 May 2009).
[8] ICESCR,
note 2.
[9] ICCPR, note 1.
[10]Convention on the Elimination of All Forms of Discrimination against
Women
(CEDAW), 1979. At http://www2.ohchr.org/english/law/cedaw.htm (viewed 29 May 2009).
[11]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment
(CAT), 1984. At http://www2.ohchr.org/english/law/cat.htm (viewed 29 May 2009).
[12]Convention on the Rights of the Child (CRC), 1989. At http://www.unhchr.ch/html/menu3/b/k2crc.htm (viewed 29 May 2009).
[13]Convention on the Rights of Persons with Disabilities (Disability
Convention), 2006. At http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf (viewed 29 May 2009).
[14]Convention on the Prevention and Punishment of the Crime of Genocide,
1948. At http://www.unhchr.ch/html/menu3/b/p_genoci.htm (viewed 29 May 2009).
[15]Convention relating to the Status of Refugees (Refugee Convention), 1951.
At http://www.unhchr.ch/html/menu3/b/o_c_ref.htm (viewed 29 May 2009).
[16]Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery
, 1956. At http://www2.ohchr.org/English/law/slavetrade.htm (viewed 29 May 2009).
[17]Protocol relating to the Status of Refugees, 1967. At http://www.unhchr.ch/html/menu3/b/o_p_ref.htm (viewed 29 May 2009).
[18]Convention relating to the Status of Stateless Persons, 1954. At http://www.unhchr.ch/html/menu3/b/o_c_sp.htm (viewed 29 May 2009).
[19]Convention on the Reduction of Statelessness, 1961. At http://www.unhchr.ch/html/menu3/b/o_reduce.htm (viewed 29 May 2009).
[20]Convention concerning Discrimination in respect of Employment and Occupation
(ILO No. 111)
, 1958. At http://www.unhchr.ch/html/menu3/b/d_ilo111.htm (viewed 29 May 2009).
[21]Optional Protocol to the International Covenant on Civil and Political
Rights
, 1966. At http://www.unhchr.ch/html/menu3/b/a_opt.htm (viewed 29 May 2009).
[22]Second Optional Protocol to the International Covenant on Civil and Political
Rights, aiming at the abolition of the death penalty
(Second Optional
Protocol to the ICCPR), 1989. At http://www.unhchr.ch/html/menu3/b/a_opt2.htm (viewed 29 May 2009).
[23]Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict
, 2000. At http://www.unhchr.ch/html/menu2/6/protocolchild.htm (viewed 29 May 2009).
[24]Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography
, 2000. At http://www.unhchr.ch/html/menu2/6/crc/treaties/opsc.htm (viewed 29 May 2009).
[25]Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women
, 1999. At http://www.unhchr.ch/html/menu3/b/opt_cedaw.htm (viewed 29 May 2009).
[26]Optional Protocol to the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment
(OPCAT), 2002. At http://www.unhchr.ch/html/menu2/6/cat/treaties/opcat.htm (viewed 29 May 2009). The Australian Government signed OPCAT on 19 May 2009, but
has not yet acceded to it.
[27]Optional Protocol to the Convention on the Rights of Persons with
Disabilities
, 2006. At http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf (viewed 29 May 2009).
[28]Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights
(OPICESCR), UN Doc A/RES/63/117 (2008). At http://www2.ohchr.org/english/bodies/cescr/docs/A-RES-63-117.pdf (viewed 29 May 2009). The OPICESCR was adopted by the UN General Assembly on 10
December 2008, and is currently scheduled to open for signature on 24 September
2009.
[29]International Labor
Organisation Convention 169,
1989. At http://www.ilo.org/ilolex/english/convdisp1.htm (viewed 5 June).
[30] Universal
Declaration, note 3.
[31] See, for example, L Sohn, ‘The New International Law: Protection of the
Rights of Individuals Rather Than States’ (1982) 32 American University
Law Review
1, p 16.
[32] Universal Declaration, note 3, preamble.
[33]United Nations
Declaration on the Rights of Indigenous Peoples
(Declaration on the Rights
of Indigenous Peoples), GA Resolution 61/295, UN Doc A/61/L.67 (2007). At http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (viewed 29 May 2009).
[34] Minister for Families, Housing, Community Services and Indigenous Affairs, the
Hon J Macklin MP, Statement on the United Nations Declaration on the Rights
of Indigenous Peoples
(Speech delivered at Parliament House, Canberra, 3
April 2009). At http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/un_declaration_03apr09.htm (viewed 29 May 2009).
[35] Declaration on the Rights of Indigenous Peoples, note 33, art
1.
[36]Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on Religion
or Belief
, GA Resolution 36/55, UN Doc A/RES/36/55 (1981). At http://www.unhchr.ch/html/menu3/b/d_intole.htm (viewed 29 May 2009).
[37]Declaration on the Rights of Mentally Retarded Persons, GA Resolution
2856 (XXVI), UN Doc A/RES/26/2856 (1971). At http://www.unhchr.ch/html/menu3/b/m_mental.htm (viewed 29 May 2009).
[38]Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities
, GA Resolution 47/135, UN Doc
A/RES/47/135 (1992). At http://www.unhchr.ch/html/menu3/b/d_minori.htm (viewed 29 May 2009).
[39] For
the purposes of this submission, the phrase ‘the major international human
rights treaties’ refers to the ICCPR, ICESCR, CERD, CEDAW, CAT, CRC and
the Disability Convention.
[40] ICCPR, note 1,
art 2; ICESCR, note 2, art 2; CERD, note 7, art 2; CEDAW, note 10, arts 2, 3; CAT, note 11, art 2; CRC, note 12, art 4;
Disability Convention, note 13, art
4.
[41] ICCPR, above, art
2(2).
[42] UN Human Rights
Committee, General Comment No 31: Nature of the General Legal Obligation
Imposed on States Parties to the Covenant,
UN Doc CCPR/C/21/Rev.1/Add.13
(2004), para 13. At http://www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f?Opendocument (viewed 28 May 2009).
[43] UN
Human Rights Committee, above, para
14.
[44] See also ICESCR, note 2, art
2(1)(a).
[45] ICCPR, note 1, art 2; ICESCR,
note 2, art 2;
CERD, note 7, art
2; CEDAW, note 10, art 2, 3; CAT, note 11, art 2; CRC, note 12, art 4; Disability
Convention, note 13, art
4.
[46] ICESCR, note 2, art 2(1); UN
Committee on Economic, Social and Cultural Rights, General Comment 3: The
nature of States parties obligations (Art. 2, para. 1 of the Covenant)
, UN
Doc E/1991/23, annex III at 86 (1991), paras 3, 4, 7. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c12563ed0052b664?Opendocument (viewed 29 May 2009).
[47] ICESCR, note 2,
art 2(1); UN Committee on Economic, Social and Cultural Rights, above, para
9.
[48] UN Committee on Economic,
Social and Cultural Rights, above, paras 2, 3,
7.
[49] UN Committee on Economic,
Social and Cultural Rights, General Comment 14, UN Doc E/C.12/200/4
(2000), paras 43, 44.
[50] ICCPR,
note 1, art 2(1);
ICESCR, note 2,
art 2(2); CRC, note 12, art
2(1).
[51] CRC, above, art
2(1).
[52] CERD, note 7, art 6; CAT, note 11, art 14;
CEDAW, note 10,
art 2(c); ICCPR, note 1, art 2(3); ICESCR, note 2, art 2(1); CRC, note 12, art 4;
Disability Convention, note 13, art 4; See also Committee on Economic,
Social and Cultural Rights, General Comment 3, note 46, para
5.
[53] UN Human Rights
Committee, General Comment No 31, note 42, para
16.
[54] UN Committee on
Economic, Social and Cultural Rights, General Comment No 9: The domestic
application of the Covenant
, UN Doc E/C.12/1998/24,CESCR (1998), para 9. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/4ceb75c5492497d9802566d500516036?Opendocument (viewed 29 May 2009). See also UN Committee on Economic, Social and Cultural
Rights, General Comment 3, note 46, para
5.
[55] State party reports are
required once every five years under the ICCPR, ICESCR and the CRC; once every
four years under CAT, CEDAW and the Disability Convention; and once every two
years under CERD.
[56] See ICCPR,
note 1, art 40;
ICESCR, note 2,
art 16; CERD, note 7, art 9; CEDAW, note 10, art 18; CAT, note 11, art 19; CRC, note 12, art 44;
Disability Convention, note 13, art
35.
[57] Inter-Committee
Technical Working Group, Harmonized guidelines on reporting under the
international human rights treaties, including guidelines on a common core
document and treaty-specific documents
, UN Doc HRI/MC/2006/3 (2006), para
29. At http://www.dfat.gov.au/hr/reports/icescr-iccpr/harmonised_guidelines.pdf (viewed 29 May 2009).
[58] Inter-Committee Technical Working Group,
above.
[59] The Commission
recognises the diversity of the cultures, languages, kinship structures and ways
of life of Aboriginal and Torres Strait Islander peoples. Aboriginal and Torres
Strait Islander peoples are primarily referred to as ‘Indigenous
peoples’ in this document. This is because the term carries a meaning in
international law. In particular, the use of ‘peoples’ with an
‘s’ (and not people singular) reflects the human rights
instruments that refer to the collective right of self-determination as one
enjoyed by ‘peoples’. For a more detailed explanation on the use of
terms see: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008 (2009). At http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/index.html (viewed 3 June 2009).
[60] See
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Reports (1993-2008) at http://www.humanrights.gov.au/social_justice/sj_report/index.html (viewed 28 May 2009); Australian Bureau of Statistics and Australian Institute
of Health and Welfare, The Health and Welfare of Australia's Aboriginal and
Torres Strait Islander Peoples
(2005) at www.aihw.gov.au/publications/ihw/hwaatsip05/hwaatsip05.pdf (viewed 28 May 2009); Australian Institute of Health and Welfare, Australia's
Health No.11
(2008) at http://www.aihw.gov.au/publications/aus/ah08/ah08-c03.pdf (viewed 28 May 2009).
[61] Australian Institute of Health and Welfare, Demand for SAAP accommodation by
homeless people 2007-2008 Australia
(2009). At http://www.aihw.gov.au/publications/index.cfm/title/10772 (viewed 28 May 2009).
[62] Australian Bureau of Statistics, Counting the Homeless 2006 (2008), p ix.
At http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/57393A13387C425DCA2574B900162DF0/$File/20500-2008Reissue.pdf (viewed 29 May 2009). See also Human Rights and Equal Opportunity Commission, Our Homeless Children: Report of the National Inquiry into Homeless
Children
(1989).
[63] For
further discussion about homelessness as a human rights issue, see Human Rights
and Equal Opportunity Commission, Submission to the Green Paper on
Homelessness - Which Way Home?
(4 July 2008) at http://humanrights.gov.au/legal/submissions/2008/20080704_homelessness.html (viewed 28 May 2009); Human Rights and Equal Opportunity Commission, Homelessness is a Human Rights Issue (2008) at http://humanrights.gov.au/human_rights/housing/homelessness_2008.html (viewed 28 May 2009).
[64] J
Mouzos and T Makkai, Women’s Experiences of Male Violence: Findings
from the Australian Component of the International Violence Against Women Survey
(IVAWS)
(2004), p 3. At http://www.aic.gov.au/publications/rpp/56/RPP56.pdf (viewed 29 May 2009).
[65] Australian Bureau of Statistics, Personal Safety Survey (Reissue) (2005),
p 11. At http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/056A404DAA576AE6CA2571D00080E985/$File/49060_2005%20(reissue).pdf (viewed 29 May 2009).
[66] VicHealth, The Health Costs of Violence: Measuring the burden of disease
caused by intimate partner violence
(2004), p 11. At http://www.vichealth.vic.gov.au/~/media/ProgramsandProjects/MentalHealthandWellBeing/DiscriminationandViolence/IntimatePartnerViolence/ipv.ashx (viewed 29 May 2009).
[67] Australian Institute of Health and Welfare, Homeless people in SAAP: SAAP
National Data Collection annual report 2006-07 Australia
(2008), p 32. At http://www.aihw.gov.au/publications/index.cfm/title/10523 (viewed 6 April 2009).
[68] Women With Disabilities Australia, Forgotten Sisters: A Global Review of
Violence against Women with Disabilities
(2007).
[69] For further details,
see Human Rights and Equal Opportunity Commission, Gender equality: What
matters to Australian women and men – The Listening Tour Community Report
(2008). At http://www.humanrights.gov.au/sex_discrimination/listeningtour/index.html (viewed 28 May 2009).
[70] World
Economic Forum, The Global Gender Gap Report 2007 (2007), p 38. At http://www.weforum.org/en/initiatives/gcp/Gender%20Gap/index.htm (viewed 16 March 2009).
[71] Australian Bureau of Statistics, Average Weekly Earnings, Australia, February 2008 (2008). At http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/6302.0Feb%202008?OpenDocument (viewed 1 June 2009).
[72] Australian Bureau of Statistics, above.
[73] See S Kelly, Entering
Retirement: the Financial Aspects
(Paper for the Communicating the Gendered
Impact of Economic Policies: The Case of Women’s Retirement Incomes
Conference, Perth, 12 - 13 December 2006).
[74] See, for example, Crime
Prevention Powers Act 1998
(ACT); Summary Offences Act 1953 (SA); Summary Offences Act 2005 (Qld); Police Powers and Responsibilities
Act 2000
(Qld).
[75] See, for
example UN Committee on the Rights of the Child, Consideration of Reports
Submitted by States Parties Under Article 44 of the Convention, Concluding
Observations: Australia
, UN Doc CRC/C/15/Add.268 (2005), pp 8 - 9. At http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/6f6879be758d0e8ec12570d9003340ba/$FILE/G0544374.pdf (viewed 1 June 2009).
[76] See Human Rights and Equal Opportunity Commission, National Inquiry into
Rural and Remote Education
(2000). At http://www.humanrights.gov.au/Human_RightS/rural_education/index.html (viewed 1 June 2009).
[77] Human
Rights and Equal Opportunity Commission, WORKability 2: SOLUTIONS Final
report of the National Inquiry into Employment and Disability
(2006),
Executive Summary. At http://www.humanrights.gov.au/disability_rights/employment_inquiry/final/exec.htm (viewed 28 May 2009).
[78] Human
Rights and Equal Opportunity Commission, above. See also Human Rights and Equal
Opportunity Commission, National Inquiry into Employment and Disability
Issues Paper 1: Employment and Disability – The Statistics
(2005). At http://www.humanrights.gov.au/disability_rights/employment_inquiry/papers/issues1.htm (viewed 29 May 2009).
[79] Joint Committee on
Electoral Matters, Report on the 2007 federal election electronic voting
trials
, 2009. At http://www.aph.gov.au/house/committee/em/elect07/report.htm (viewed 5 June 2009).
[80] See,
for example, UN Committee against Torture, Concluding observations of the
Committee against Torture: Australia
, UN Doc CAT/C/AUS/CO/3 (2008), para 23,
at http://www2.ohchr.org/english/bodies/cat/cats40.htm (viewed 4 June 2009); UN Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural
Rights: Australia
, UN Doc E/C.12/AUS/CO/4 (Advance Unedited Version) (2009),
paras 29-30, at http://www2.ohchr.org/english/bodies/cescr/docs/AdvanceVersions/E-C12-AUS-CO-4.doc (viewed 29 May 2009).
[81] See,
for example, UN Committee on the Rights of the Child, Concluding
Observations: Australia
(2005), note 75, paras 73 - 74.
[82] For further discussion of
these issues, see Australian Human Rights Commission, 2008 Immigration
detention report: Summary of observations following visits to Australia’s
immigration detention facilities
(2009) at http://humanrights.gov.au/human_rights/immigration/idc2008.html (viewed 4 June 2009); Human Rights and Equal Opportunity Commission, Submission to the Joint Standing Committee on Migration Inquiry into
Immigration Detention in Australia
(4 August 2008) at http://www.humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html (viewed 4 June 2009).
[83] See,
for example, Human Rights and Equal Opportunity Commission, Bush Talks (1999). At http://www.humanrights.gov.au/pdf/human_rights/bush_talks.pdf (viewed 29 May 2009).
[84] For
further discussion of these issues, see Human Rights and Equal Opportunity
Commission, Stories of discrimination experienced by the gay, lesbian,
bisexual, transgender and intersex community
(2007), at http://humanrights.gov.au/human_rights/gay_lesbian/stories.html (viewed 1 June 2009); Australian Human Rights Commission, Sex Files: the
legal recognition of sex in documents and government records
, Concluding
Paper of the sex and gender diversity project (2009), at http://humanrights.gov.au/genderdiversity/sex_files2009.html (viewed 1 June 2009).
[85] See,
for example, Human Rights and Equal Opportunity Commission, Not for service:
Experiences of injustice and despair in mental health care in Australia
(2005). At http://www.humanrights.gov.au/disability_rights/notforservice/report/index.html (viewed 29 May 2009).
[86] See,
for example, Human Rights and Equal Opportunity Commission, Voices of
Australia: 30 years of the Racial Discrimination Act: 1975-2005
(2005). At http://www.humanrights.gov.au/racial_discrimination/voices/index.html (viewed 29 May 2009).
[87] See
Human Rights and Equal Opportunity Commission, Ismaع – Listen: National consultations on eliminating prejudice against Arab and
Muslim Australians
(2004), at http://www.humanrights.gov.au/racial_discrimination/isma/index.html (viewed 29 May 2009); Human Rights and Equal Opportunity Commission, Living
Spirit: A dialogue on human rights and responsibilities
, Report on Muslim
Women's Project 2006 (2008) at http://www.humanrights.gov.au/racial_discrimination/livingspirit/1.html#5_3 (viewed 1 June 2009).
[88] J
Jones, 2008 Report on antisemitism in Australia (2008). At http://www.antisemitism.org.il/eng/2008%20Report%20on%20antisemitism%20in%20Australia%20-%20By%20Jeremy%20Jones (viewed 9 June 2009).
[89]Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Age
Discrimination Act 2004
(Cth).
[90] See also UN Human Rights
Committee, Consideration of Reports Submitted by States Parties under Article
40 of the Covenant: Concluding Observations of the Human Rights Committee
– Australia
(Advanced Unedited Version), UN Doc CCPR/C/AUS/CO/5
(2 April 2009), para 12, at http://www2.ohchr.org/english/bodies/hrc/docs/co/CCPR-C-AUS-CO5-CRP1.doc (viewed 9 June 2009); UN Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), note 80, para 14.
[91] The schedules to the HREOC
Act are ILO No. 111, the ICCPR, the Declaration of the Rights of the Child, the
Declaration on the Rights of Mentally Retarded Persons and the Declaration on
the Rights of Disabled
Persons.
[92] Declarations have
been made in relation to the Disability Convention, the Convention on the Rights
of the Child and the Declaration on the Elimination of all Forms of Intolerance
and of Discrimination based on Religion or
Belief.
[93] See Sales v
Minister for Immigration and Citizenship
(2007) 99 ALD 523, 528 (Flick J)
and the authorities cited therein.
[94] However, the Aboriginal and
Torres Strait Islander Social Justice Commissioner must ‘have regard
to’ other human rights instruments including the ICESCR: Human Rights
and Equal Opportunity Act 1986
(Cth), s 46C(4)(a). With regard to the CAT,
the Australian Government has recently announced that it will consider
introducing a new federal offence of torture. This will strengthen the limited
protection provided by the Crimes (Torture) Act 1988 (Cth).
[95] UN Human Rights
Committee, Concluding Observations: Australia (2009), note 90, para 8; UN Committee on
Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), note 80, para 11; UN Committee on Economic, Social
and Cultural Rights, Concluding observations of the Committee on Economic,
Social and Cultural Rights: Australia
, UN Doc E/C.12/1/Add.50 (2000), paras
14, 24, at
http://www.unhchr.ch/tbs/doc.nsf/0/693c56f3d2694130c12569580039a1a2?Opendocument (viewed 23 April 2009); UN Committee on the Rights of the Child, Concluding
Observations: Australia
(2005), note 75, paras 9 - 10; UN Committee against Torture, Concluding Observations: Australia (2008), note 80, para
9.
[96] UN Committee on Economic,
Social and Cultural Rights, Concluding Observations: Australia (2000),
above, paras 14, 24.
[97] UN
Committee on Economic, Social and Cultural Rights, Concluding Observations:
Australia
(2009), note 80, para 11.
[98] UN Human Rights Committee, Concluding observations of the Human Rights Committee: Australia, UN Doc
A/55/40 (2000), paras 498 - 528. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.55.40,paras.498-528.En?OpenDocument (viewed 2 June 2009).
[99] UN
Human Rights Committee, Concluding Observations: Australia (2009), note 90, para 8.
[100] See Roy Morgan Research, Anti-Terrorism Legislation Community Survey prepared for Amnesty
International Australia
(2006), p 12. At http://acthra.anu.edu.au/articles/Anti-terror%20community%20survey%20report.pdf (viewed 2 June 2009).
[101] RCL Moffat, ‘Philosophical Foundations of the Australian Constitutional
Tradition’ (1965) 5 Sydney Law Review 85, p 86.
[102] G Williams, Human
Rights under the Australian Constitution
(2002), p
41.
[103] H Charlesworth,
‘The Australian Reluctance about Rights’ (1993) 31 Osgoode Hall
Law Journal
195, p
210.
[104] Australian
Constitution, s 51(xxxi).
[105] Australian Constitution, s
80.
[106] Australian
Constitution, s 75(v).
[107] Australian Constitution, s
116.
[108] Australian
Constitution, s 117.
[109]Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Levy v
Victoria
(1997) 189 CLR 579.
[110]Australian Capital
Television Pty Ltd
, above,
187.
[111] A substantive
doctrine of equality under the Constitution was proposed by Deane and
Toohey JJ in their dissenting judgment in Leeth v Commonwealth (1992) 174
CLR 455, 486 - 492 (Deane and Toohey JJ), but was rejected in the joint judgment
of Mason CJ, Dawson and McHugh JJ. It was also rejected by a majority of
the Court in Kruger v Commonwealth (1997) 190 CLR 1. The more limited
procedural doctrine of equality proposed by Gaudron J in Leeth may still
be open for argument.
[112] Charlesworth, ‘The Australian Reluctance about Rights’, note 103, p 198; J Doyle
and B Wells, ‘How Far Can the Common Law go Towards Protecting Human
Rights?’ in P Alston (ed), Promoting Human Rights Through Bills of
Rights: Comparative Perspectives
(1999) 17, p
61.
[113] See, for example, Roach v Electoral Commissioner (2007) 233 CLR 162, 224 - 225 (Heydon J)
and the authorities cited therein. A contrary view has been expressed by Kirby
J: see, for example, Newcrest Mining (WA) Ltd v Commonwealth (1997) 190
CLR 513, 657 - 658 (Kirby
J).
[114] See sections 21 and
22 of this submission for further discussion of the weaknesses of the Australian
Constitution in protecting racial equality and the right to equality more
generally.
[115] UN Committee
on the Elimination of Racial Discrimination, Concluding Observations of the
Committee on the Elimination of Racial Discrimination: Australia,
UN Doc
CERD/C/AUS/CO/14 (2005), para 9. At http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/fff3368f665eaf93c125701400444342/$FILE/G0541073.pdf (viewed 23 April 2009).
[116] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007
(2008), ch 3. At http://humanrights.gov.au/social_justice/sj_report/sjreport07/ (viewed 2 June 2009).
[117] Human Rights and Equal Opportunity Commission, Submission to Senate Legal and
Constitutional Committee on the Northern Territory National Emergency Response
Legislation
(10 August 2007). At http://www.humanrights.gov.au/legal/submissions/2007/NTNER_Measures20070810.html (viewed 9 June 2009).
[118] UN
Human Rights Committee, Concluding Observations: Australia (2009), note 90, para 14.
[119]Al-Kateb v Godwin (2004) 219 CLR 562.
[120] ICCPR, note 1, art
9.
[121]Al-Kateb v
Godwin
(2004) 219 CLR 562, 595 (McHugh
J).
[122] The Hon M McHugh AC, The need for agitators: the risk of stagnation (Paper presented to the
Sydney University Public Law Forum, Sydney, 12 October 2005), p 7. At http://www.hcourt.gov.au/speeches/mchughj/mchughj_12oct05.pdf (viewed 29 May 2009).
[123]Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1; Behrooz v
Secretary, Department of Immigration and Multicultural and Indigenous
Affairs
(2004) 219 CLR
486.
[124] Department of the
Prime Minister and Cabinet, Commonwealth Legislation Handbook (1999,
updated as of May 2000). At http://www.dpmc.gov.au/guidelines/docs/legislation_handbook.pdf (viewed 26 May 2009).
[125] Department of the Prime Minister and Cabinet, Commonwealth Legislation
Handbook
, above, para
1.1.
[126] Department of the
Prime Minister and Cabinet, Commonwealth Legislation Handbook, above,
para 6.34.
[127] Department of
the Prime Minister and Cabinet, Commonwealth Legislation Handbook, above,
para 4.5.
[128] S Evans,
‘Improving Human Rights Analysis in the Legislative and Policy
Processes’ (2005) 29 Melbourne University Law Review 665, p 674.
[129] Department of the Prime
Minister and Cabinet, Cabinet Handbook, (5th ed, 1983, amended
as of March 2004). At http://www.dpmc.gov.au/guidelines/docs/cabinet_handbook.rtf (viewed 26 May 2009).
[130] Department of the Prime Minister and Cabinet, Commonwealth Legislation
Handbook
, note 124, para
1.12.
[131] Department of the
Prime Minister and Cabinet, Federal Executive Council Handbook (2005). At http://www.dpmc.gov.au/guidelines/docs/executive_handbook.doc (viewed 26 May 2009).
[132]Legislative Instruments Act 2003 (Cth), s
26.
[133] Senate Table Office, Standing Orders and other Orders of the Senate (2006), Standing Orders 23
and 24, pp 20 - 21. At http://www.aph.gov.au/senate/pubs/standing_orders/standingorders.pdf (viewed 2 June 2009).
[134] For
further discussion, see section 20.16 of this
submission.
[135] H
Charlesworth, ‘Who wins under a Bill of Rights?’ (2006) 25 The
University of Queensland Law Journal
1, p 44.
[136] A Ramsey, ‘No
opposition, no debate, no contest’, The Sydney Morning Herald, 11
August 2007. At http://www.smh.com.au/news/opinion/no-opposition-no-debate-no-contest/2007/08/10/1186530620958.html (viewed 2 June 2009).
[137] See
further Australian Human Rights Commission, A Human Rights Guide to
Australia’s Counter-Terrorism Laws
(2008). At http://humanrights.gov.au/legal/publications/counter_terrorism_laws.html (viewed 10 June 2009).
[138] UN Human Rights Committee, Concluding Observations: Australia (2009),
note 90, pp 3 -
4; UN Committee against Torture, Concluding Observations: Australia (2008), note 80,
p 3.
[139]Mabo v Queensland
(No 2)
(1991) 175 CLR 1, 42 (Brennan J) (Mabo (No 2)).
[140]Mabo (No 2),
above, 29 (Brennan J).
[141] The Hon M McHugh AC QC, Does Australia Need a Bill of Rights? (Speech
delivered at Law Week Oration, University of Melbourne, 15 May 2007). At http://acthra.anu.edu.au/resources/DoesAustraliaNeedABillofrights.pdf (viewed 2 June 2009).
[142] (1994) 179 CLR 427.
[143]Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and
McHugh JJ).
[144] See generally K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4, para 47
(French J), and the authorities cited
therein.
[145]Jumbunna Coal
Mine NL v Victorian Coal Miners’ Association
(1908) 6 CLR 309, 363
(O’Connor J); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J); Kartinyeri v Commonwealth (1998) 195 CLR 337, 384 (Gummow and Hayne JJ).
[146]Chu Kheng Lim v
Minster for Immigration, Local Government and Ethnic
Affairs (1992)
176 CLR 1, 38 (Brennan, Deane and Dawson JJ).
[147] See D Pearce and R
Geddes, Statutory Interpretation in Australia (6th ed, 2006),
pp 38 - 39.
[148] See further
Doyle and Wells, note 112, p 74.
[149] See Australian Human
Rights Commission, A Human Rights Guide to Australia’s
Counter-Terrorism Laws
, note 137.
[150]Trobridge v Hardy (1955) 94 CLR 147, 152 (Fullagher
J).
[151]Crimes Act
1914
(Cth), pt 1C, div
2.
[152]Crimes Act 1914 (Cth), pt 1C, div 2. The provision for ‘dead time’ is found in ss
23CA(8)(m) and 23CB.
[153]Criminal Code Act 1995 (Cth), schedule, div 104.
[154]Australian Security
Intelligence Organisation Act 1979
(Cth), pt III, div 3.
[155]Australian Security
Intelligence Organisation Act 1979
(Cth), s
34G(4).
[156]Australian
Security Intelligence Organisation Act 1979
(Cth), s
34ZS.
[157] UN Human Rights
Committee, Concluding Observations: Australia (2009), note 90, pp 3 - 4. See also Special
Rapporteur on the Promotion and Protection of Human Rights and Fundamental
Freedoms while Countering Terrorism, Australia: Study on Human Rights
Compliance while Countering Terrorism
, UN Doc A/HRC/4/26/Add.3 (2006). At http://daccessdds.un.org/doc/UNDOC/GEN/G06/155/49/PDF/G0615549.pdf?OpenElement (viewed 2 June 2009).
[158] UN
Committee against Torture, Concluding Observations: Australia (2008),
note 80, p
3.
[159] UN Human Rights
Committee, Concluding Observations: Australia (2009), note 90, pp 3 - 4; UN Committee
against Torture, Concluding Observations: Australia (2008), note 80, p 3.
[160]Minister for
Immigration & Ethnic Affairs v Teoh
(1995) 183 CLR 273. The concept of
‘legitimate expectation’ has been questioned in subsequent cases,
but has not been reversed. See, for example, Re Minister for Immigration and
Multicultural Affairs; Ex parte Lam
(2003) 214 CLR
1.
[161] Section 75(v) of the
Australian Constitution guarantees the High Court’s jurisdiction to
judicially review the actions of a Commonwealth officer (including the actions
of a Minister). Section 39B of the Judiciary Act 1903 (Cth) gives the
Federal Court jurisdiction to review the lawfulness of federal executive
action.
[162]Administrative
Decisions (Judicial Review) Act
1977 (Cth), s 5.
[163]Rush v Commissioner
of Police
[2006] FCA
12.
[164] Second Optional
Protocol to the ICCPR, note 22.
[165] UN Human Rights
Committee, C v Australia, Communication No. 900/1999, UN Doc
CCPR/C/76/D/900/1999 (2002), para 7.3. At http://www.unhchr.ch/tbs/doc.nsf/0/f8755fbb0a55e15ac1256c7f002f17bd?Opendocument (viewed 2 June 2009).
[166] The
UN Human Rights Committee has found that Australia has breached the human rights
of those within its jurisdiction 17 times. The UN Committee on Elimination of
Racial Discrimination and the Committee against Torture have each made one
finding against Australia.
[167] UN Human Rights
Committee, Brough v Australia, Communication No. 1184/2003, UN Doc
CCPR/C/86/D/1184/2003 (2006). At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/8aeb1fcbc458419ac125716200520f4b?Opendocument (viewed 1 June 2009).
[168] UN
Human Rights Committee, Young v Australia, Communication No. 941/2000, UN
Doc CCPR/C/78/D/941/2000 (2003). At http://www.unhchr.ch/tbs/doc.nsf/0/3c839cb2ae3bef6fc1256dac002b3034?Opendocument (viewed 1 June 2009).
[169] UN
Human Rights Committee, A v Australia, Communication No. 560/1993, UN Doc
CCPR/C/59/D/560/1993 (1997). At http://www.unhchr.ch/tbs/doc.nsf/0/30c417539ddd944380256713005e80d3?Opendocument (viewed 1 June 2009).
[170] UN
Human Rights Committee, Coleman v Australia, Communication No. 1157/2003,
UN Doc CCPR/C/87/D/1157/2003 (2006). At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bb31fe728f09bc5dc12571cd0048757c?Opendocument (viewed 1 June 2009).
[171] For
example, in the case of A v Australia, the Australian Government rejected
the Committee’s findings that Mr A’s detention was in contravention
of the ICCPR and that the review of the lawfulness of the detention by
Australian courts was inadequate. The Government also rejected the
Committee’s view that compensation should be paid to Mr A. See H
Charlesworth, Human rights: Australia versus the UN, Democratic Audit of
Australia, Discussion Paper 22/06 (2006). At http://democratic.audit.anu.edu.au/papers/20060809_charlesworth_aust_un.pdf (viewed 1 June 2009).
[172]Human Rights and Equal Opportunity Commission Act 1986 (Cth), s
11(1)(e).
[173]Human Rights
and Equal Opportunity Commission Act 1986
(Cth), s
3.
[174] The definition of
‘human rights’ in s 3 of the Human Rights and Equal Opportunity
Commission Act 1986
(Cth) makes reference to rights ‘recognised or
declared by any relevant international instrument’. While this appears to
give the definition a broad scope, the term ‘relevant international
instrument’ is defined later in s 3 to be ‘an international
instrument in respect of which a declaration under s 47 is in force’. To
date only the Declaration on the Elimination of all Forms of Intolerance and
of Discrimination based on Religion or Belief
, the CRC, and the Disability
Convention have been the subject of a declaration under s
47.
[175] There is one
exception to this. The Aboriginal and Torres Strait Islander Social Justice
Commission ‘must, as appropriate, have regard to’ the ICESCR and
‘such other instruments relating to human rights as the Commissioner
considers relevant’: Human Rights and Equal Opportunity Commission Act
1986
(Cth), ss 46C(4)(a),
46C(4)(b).
[176] The Commission
has certain limited powers in relation to the examination of legislation or
proposed legislation that may be contrary to CEDAW by virtue of s 48 of the Sex
Discrimination Act.
[177] However, the Commission may conduct inquiries into discrimination in employment,
including systemic discrimination. This function is not limited to employment by
the Commonwealth. It also applies to private workplaces and employment by States
and Territories. Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 31(b).
[178]Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 11(1)(f).
‘Human rights’ are defined in s 3 of the Human Rights and Equal
Opportunity Commission Act 1986
(Cth).
[179]Human
Rights and Equal Opportunity Commission Act 1986
(Cth), ss 29(2)(b),
29(2)(c).
[180] Reports of
complaints are available at http://www.humanrights.gov.au/legal/HREOCA_reports/index.html.
[181] Human Rights and Equal Opportunity Commission, Those who’ve come across
the seas – Detention of unauthorised arrivals
(1998). At http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf (viewed 2 June 2009).
[182] Human Rights and Equal Opportunity Commission, A last resort? National
Inquiry into Children in Immigration Detention
(2004). At http://www.humanrights.gov.au/human_rights/children_detention_report/report/PDF/alr_complete.pdf (viewed 2 June 2009).
[183] See
further Australian Human Rights Commission, 2008 Immigration detention
report
, note 82; Human Rights and Equal Opportunity
Commission, Submission to the Joint Standing Committee on Migration Inquiry
into Immigration Detention in Australia
, note 82.
[184] See, for example, UN
Human Rights Committee, Concluding Observations: Australia (2009), note 90,
pp 7-8; Committee against Torture, Concluding Observations: Australia (2008), note 80,
pp 4, 8; Committee on the Rights of the Child, Concluding Observations:
Australia
(2005), note 75, p
13.
[185]Racial
Discrimination Act 1975
(Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Age Discrimination Act 2004 (Cth).
[186] See Discrimination Act 1991 (ACT), s 7(1)(o); Anti-Discrimination Act 1998 (Tas), s 16(r); Anti-Discrimination Act (NT), s
19(1)(q).
[187] Human Rights
and Equal Opportunity Commission, Report of an inquiry into a complaint by Mr
Frank Ottaviano of discrimination in employment on the basis of criminal record
against South Australia Police
, Report No. 38 (2007). At http://www.humanrights.gov.au/legal/HREOCA_reports/hrc_report_38.html (viewed 2 June 2009).
[188] For
example, Amnesty International Australia commissioned a nationwide poll of 1001
voters in 2006. Sixty one per cent of respondents said they thought Australia
had a bill or charter of rights. Thirteen percent said that Australia did not
have a bill or charter of rights. Twenty six percent could not say. See Roy
Morgan Research, note 100.
[189]Human Rights and
Equal Opportunity Commission Act 1986
(Cth), ss 11(1)(g),
11(1)(h).
[190] The Hon M
McHugh AC QC, A Human Rights Act, the courts and the Constitution (Paper
presented at the Australian Human Rights Commission, Sydney, 5 March 2009). At http://www.humanrights.gov.au/letstalkaboutrights/events/McHugh2009_paper.doc (viewed 4 June 2009). The Canadian Bill of Rights 1960 (Can), s 2 states:

Every law of Canada shall, unless it is expressly declared by an Act of the
Parliament of Canada that it shall operate notwithstanding the Canadian Bill
of Rights
, be so construed and applied as not to abrogate, abridge or
infringe or to authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared
...
[191] For example, in R
v Drybones
[1970] SCR 282, the Supreme Court of Canada held that a law that
could not be sensibly construed so as not to abrogate the rights and freedoms
recognised in the Canadian Bill of Rights was inoperative to the extent
of the inconsistency, unless there was an express declaration that the law
operated notwithstanding the Canadian Bill of Rights. Pamela Tate SC has
raised concerns about the constitutional implications of introducing a
‘notwithstanding’ clause of this type in the Australian federal
context. See P Tate, Victoria’s Charter of Human Rights and
Responsibilities: A contribution to the Debate on a National Charter
(Paper
presented the 2009 Commonwealth Law Conference, Hong Kong, 6 April
2009).
[192] See ICCPR, note 1, art
2(1).
[193] In particular, the
right to self-determination is a collective right, held by
‘peoples’: ICCPR, note 1, art 1; ICESCR, note 2, art
1.
[194] ICCPR, note 1, art 25(b). See
also UN Human Rights Committee, General comment No 15: The position of aliens
under the Covenant
(1986), reprinted in UN Doc HRI/GEN/1/Rev.9 (Vol I)
(2008), p 189. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bc561aa81bc5d86ec12563ed004aaa1b?Opendocument (viewed 7 June 2009).
[195] ICCPR, note 1,
art 50; ICESCR, note 2, art
28.
[196] The Commonwealth can
introduce laws that protect human rights pursuant to s 51(xxix) of the
Australian Constitution (the external affairs power), which gives Parliament the
power to introduce laws that implement the terms of those international
agreements to which Australia is a party: Commonwealth v Tasmania (1983) 158 CLR
1
.
[197] Australian
Constitution, s 109.
[198] Although the precise formulation of this rule is not entirely clear, it is
doubtful that the Commonwealth would be able to control the procedures by which
a state Parliament makes laws. See Austin v Commonwealth (2003) 215 CLR 185, pp 257 - 258 (Gaudron, Gummow and Hayne JJ); Re
Australian Education Union: ex parte Victoria
(1995) 184 CLR 188, 231 (Mason
CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ); A Simpson, ‘State
Immunity from Commonwealth Laws: Austin v Commonwealth and Dilemmas of
Doctrinal Design’ (2004) 32 University of Western Australia Law Review 45, p 50.
[199] Consultation Committee for a Proposed WA Human Rights Act, A WA Human Rights
Act: Report of the Consultation Committee for a Proposed WA Human Rights Act
(2007), at http://www.department.dotag.wa.gov.au/H/human_rights_report_2007.aspx?uid=0053-1186-4534-3685 (viewed 7 June 2009); Tasmania Law Reform Institute, A Charter of Rights for
Tasmania
, Report No 10 (2007), at http://www.law.utas.edu.au/reform/docs/Human_Rights_A4_Final_10_Oct_2007_revised.pdf (viewed 7 June 2009).
[200] See Racial Discrimination Act 1975 (Cth), s 6A(1); Sex Discrimination Act
1984
(Cth), ss 10(3),11(3); Disability Discrimination Act 1992 (Cth),
s 13(3); Age Discrimination Act 2004 (Cth), s 12(3).
[201] See Charter of Human
Rights and Responsibilities Act
2006 (Vic), preamble; Human Rights
Act 2004
(ACT),
preamble.
[202] See Charter
of Human Rights and Responsibilities Act
2006 (Vic), preamble; Human Rights Act 2004 (ACT),
preamble.
[203] Consultation
Committee for a Proposed WA Human Rights Act, note 199, pp 76 - 77; Tasmania Law Reform
Institute, note 199, pp 169 - 170; ACT Bill of Rights
Consultative Committee, Towards an ACT Human Rights Act: Report of the ACT
Bill of Rights Consultative Committee
(2003), p 100, at http://www.jcs.act.gov.au/prd/rights/reports.html (viewed 7 June 2009).
[204]Human Rights Act 1998 (UK), sch 1, pt II; Joint Committee on Human
Rights, A Bill of Rights for the UK? Twenty–ninth Report of Session
2007–08
(2008), p 56, at http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/165/16502.htm (viewed 7 June 2009).
[205] In Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624, the
Supreme Court of Canada held that the State’s failure to provide
interpreters to people with a hearing impairment when they accessed health
services violated the right to equality contained in s 15(1) of the Charter
of Rights and
Freedoms
.
[206] In Victoria (City) v Adams, 2008 BCSC 1363, the Supreme Court of British
Columbia found that a bylaw that prohibited the erection of temporary shelter on
public property deprived people who are homeless of the right to life, liberty
and security of the person guaranteed by s 7 of the Charter of Rights and
Freedoms
.
[207] Consultation Committee for a Proposed WA Human Rights Act, note 199, p 86. See further, P
Macklem, Indigenous Difference and the Constitution of Canada (2002), p
243: Canadian ‘courts have generally been reluctant to invest civil and
political rights with much social [or] economic ...content’. See also A
Byrnes, H Charlesworth and G McKinnon, quoted in ACT Department of Justice and
Community Safety, Human Rights Act 2004: Twelve-Month Review – Report (2006), p 48: ‘Even in ... Canada where a Charter of Rights had long
been established, the record of the courts in protecting social, economic and
cultural rights through other rights ... has been mixed at
best’.
[208] Consultation
Committee for a Proposed WA Human Rights Act, note 199, p
87.
[209]Constitution of
the Republic of South Africa
, 1996, ss 26 -
27.
[210]South Africa v
Grootboom
[2001] 1 SA 46, para
41.
[211] Joint Committee on
Human Rights, A Bill of Rights for the UK?, note 204, p
56.
[212] Although certain
rights are tailored, for example, to the circumstances of lawful aliens,
children, citizens, ethnic, religious or linguistic minorities and mothers:
ICCPR, note 1,
arts 13, 24, 25, 27; ICESCR, note 2, art
10.
[213] CEDAW, note 10; CRC, note 12; Disability
Convention, note 13; CERD, note 7; Declaration on the Rights of Indigenous
Peoples, note 33.
[214] Australian courts already have recourse to international human rights
jurisprudence in interpreting laws which give effect to Australia’s
international obligations. They may also have reference to it in the context of
applying the common law principle of statutory interpretation that, in the case
of ambiguity, courts should prefer an interpretation that is consistent with
Australia’s international obligations: Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 264 - 265 (Brennan J); Gerhardy v Brown (1985)
159 CLR 70, 124 (Brennan J); Qantas Airways Limited v Christie (1998) 193
CLR 280, 303 (McHugh J), 332 - 333 (Kirby J). It has been held that approach is
not confined in its application to ambiguous statutory provisions: X v
Commonwealth
(1999) 200 CLR 177, 222 - 223 (Kirby J); Qantas Airways
Limited v Christie
(1998) 193 CLR 280, 332 - 333 and footnotes 168 - 169
(Kirby J).
[215] See, for
example, Charter of Human Rights and Responsibilities Act 2006 (Vic), s
32(2); Human Rights Act 2004 (ACT), s 31(1). See further Human Rights
Act 2004
(ACT), dictionary; Explanatory Statement to the Human Rights Bill
2003 (ACT), pp 5 - 6; Explanatory Memorandum to the Charter of Human Rights and
Responsibilities Bill 2006 (Vic), pp 23 - 24. See also other sources of
international law as outlined in the Statute of the International Court of
Justice
, art 38.
[216] For
further on a Human Rights Act and the rights of Aboriginal and Torres Strait
Islander peoples, see Aboriginal and Torres Strait Islander Commissioner, Social Justice Report 2008, note 59, ch
2.
[217]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s
5.
[218]Human Rights Act
2004
(ACT), s 28.
[219] For an analysis of internal limitations in the ACT Human Rights Act and
Victorian Charter, see C Evans and S Evans, Australian Bills of Rights: The
Law of the Victorian Charter and ACT Human Rights Act
(2008), paras 5.20
– 5.22.
[220]Kracke v
Mental Health Review Board
[2009] VCAT 646, para 108, citing R v Oakes [1986] 1 SCR 103, para
67.
[221] ICCPR, note 1, art
19(3).
[222] ICCPR, above, art
4(2). The UN Human Rights Committee considers that there are elements of other
rights that may not lawfully be subject to derogation: UN Human Rights
Committee, General Comment No 29: States of Emergency (Article 4), UN Doc
CCPR/C/21/Rev.1/Add. 11 (2001), para 13. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/71eba4be3974b4f7c1256ae200517361?Opendocument (viewed 2 June 2009).
[223] UN
Human Rights Committee, above, para
7.
[224] J Debeljak,
‘Balancing Rights in a Democracy: the Problems with Limitations and
Overrides of Rights under the Victorian Charter of Human Rights and
Responsibilities Act 2006
’ (2008) 32 Melbourne University Law
Review
422, p 434.
[225] See further, Debeljak, above, p
435.
[226]Bropho v Western
Australia
[2008] FCAFC 100, para 83.
[227] See Charter of Human
Rights and Responsibilities Act 2006
(Vic), s 7(2); Human Rights Act
2004
(ACT), s 28; New Zealand Bill of Rights Act 1990 (NZ), s
5; Constitution of the Republic of South Africa, 1996, s 36. See also R v Oakes [1986] 1 SCR 103.
[228] P Tate,
‘Protecting Human Rights in a Federation’ (2008) 33 Monash
University Law Review
212, p 232. See also Evans and Evans, note 219, para
5.49.
[229] Department of Prime
Minister and Cabinet, Commonwealth Legislation Handbook, note 124.
[230] Victorian Equal
Opportunity and Human Rights Commission, Emerging Change: The 2008 report on
the operation of the Charter of Human Rights and Responsibilities
(2009), p
30. At http://www.humanrightscommission.vic.gov.au/publications/annual%20reports/2008charterreport.asp (viewed 7 June 2009).
[231] M
Hunt, The UK Human Rights Act as a ‘parliamentary model’ of
rights protection: lessons for Australia
(Speech delivered at the Australian
Human Rights Commission, Sydney, 17 February 2009). At http://www.humanrights.gov.au/letstalkaboutrights/events/Hunt_2009.html (viewed 7 June 2009).
[232] Victorian Equal Opportunities and Human Rights Commission, Emerging
Change
, note 230, p
71.
[233] See, for example,
Joint Committee on Human Rights. At http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights/jchrabout.cfm (viewed 2 June 2009).
[234] UK
Department for Constitutional Affairs, Review of the Implementation of the
Human Rights Act
(2006), p 21; Hunt, note 231.
[235] See J Uhr, ‘Leap into lead on rights path’, The Canberra
Times
, 13 May 2009. At http://www.canberratimes.com.au/news/opinion/editorial/general/leap-into-lead-on-rights-path/1511515.aspx (viewed 7 June 2009).
[236] In
the UK, Parliament has passed laws that are incompatible with human rights
against the advice of the Joint Parliamentary Committee. The ability of courts
under the UK Human Rights Act to issue a declaration of incompatibility has
provided further opportunity for Parliament to publicly consider the human
rights impacts of laws. See Hunt, note 231.
[237] See Kracke v Mental
Health Review Board
[2009] VCAT 646, para 206 where Justice Bell said
‘[t]he subject of s 32(1) is everybody. It applies to the courts,
tribunals, government officials and public authorities’.
[238] The Hon Kevin Bell, Enhancing Australian Democracy with a Bill of Rights (Paper presented to
the Australian Institute of Administrative Law (Victorian Chapter), 20 November
2008), p 3.
[239] For
discussion of this presumption, see section 13.1 of this
submission.
[240]R v
Secretary of State for the Home Department Ex Parte Simms
[2000] 2 AC 115,
131 (Lord Hoffman) (Ex Parte Simms). This presumption ‘has been
described in the United Kingdom as an aspect of a “principle of
legality” governing the relationship between parliament, the executive and
the courts’: K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4, para 47 (French
CJ).
[241] See Ex Parte
Simms
, above, 131 (Lord Hoffman). Common law rights have never been
comprehensively defined. However, they are narrower than those protected by the
ICCPR and ICESCR. For further discussion of how the interpretive provision
extends beyond the existing common law statutory interpretation principles, see
Evans and Evans, note 219, paras 3.16 -
3.17.
[242]Human Rights
Act
2004 (ACT), s 30; Charter of Human Rights and Responsibilities
Act 2006
(Vic), s 32(1); New Zealand Bill of Rights Act 1990 (NZ), s
6; Human Rights Act 1998 (UK), s 3.
[243] For a discussion of the
application of the interpretive provision in the Victorian context, see Kracke v Mental Health Review Board [2009] VCAT 646; in the United
Kingdom, see Ghaidan v Godin-Mendoza [2004] 2 AC 557; and in New Zealand,
see R v Hansen [2007] 3 NZLR
1.
[244] The interpretation of
federal legislative instruments is dealt with by common law principles and the Legislative Instruments Act 2003 (Cth), s 13. This Act could be amended
to make it clear that all legislative instruments should be interpreted
consistent with the interpretive provision in a Human Rights Act.
[245] However, the
interpretive provision should not impose obligations on public authorities to
interpret legislation consistently with human rights where the act of
interpreting the legislation occurs before the Human Rights Act comes into
force. For a discussion of the retrospective application of the Victorian
Charter, see Kracke v Mental Health Review Board [2009] VCAT 646, paras
334 - 365.
[246] The Hon Chief
Justice J Spigelman AC, The Application of Quasi-Constitutional Laws (Speech delivered at the 2008 McPherson Lecture Series, Brisbane, 11 March
2008), p 9. At http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwFiles/spigelman110308.pdf/$file/spigelman110308.pdf (viewed 4 June 2009).
[247] For
an example of such criticisms in relation to the UK interpretive provision, see
McHugh, A Human Rights Act, the courts and the Constitution, note 190, pp 20 - 23, 26
- 27.
[248] Such a provision is
contained in Charter of Human Rights and Responsibilities Act 2006 (Vic),
s 32(1); Human Rights Act 2004 (ACT), s 30. The Commission envisages that
this interpretive provision would operate consistently with s 15AA of the Acts Interpretation Act 1901 (Cth), which states: ‘[i]n the
interpretation of a provision of an Act, a construction that would promote the
purpose or object underlying the Act (whether that purpose or object is
expressly stated in the Act or not) shall be preferred to a construction that
would not promote that purpose or
object’.
[249] Chief
Justice Spigelman argues that the words ‘consistently with their
purpose’ in the Victorian Charter and the ACT Human Rights Act are words
of limitation which do not permit the courts in Victoria and the ACT to apply
the interpretive obligation as expansively as had occurred in the UK. See
Spigelman, note 246, p 32; McHugh, A Human Rights Act, the
courts and the Constitution
, note 190, p
26.
[250] Statement of
Constitutional Validity of an Australian Human Rights Act (22 April 2009)
(Reproduced as Appendix 3 of this submission). At http://www.humanrights.gov.au/letstalkaboutrights/roundtable.html (viewed 4 June 2009). In K-Generation [2009] HCA 4, para 46, French CJ
observed that statutory interpretation is ‘to be informed by the principle
that the parliament, whether of the State or the Commonwealth, did not intend
the statute to exceed constitutional limits. It should be interpreted, so far as
its words allow, to keep it within constitutional limits’. Any
interpretive provision included in a national Human Rights Act would therefore
be interpreted, as far as its words allowed, to keep it within constitutional
limits and not to infringe the separation of
powers.
[251]Al-Kateb v
Godwin
(2004) 219 CLR 562, 577 - 578 (Gleeson CJ), 607 - 609 (Gummow
J), 615 - 616 (Kirby J).
[252]Human Rights Act 1998 (UK), ss 4, 36; Human Rights Act 2004 (ACT),
s 32. In Victoria, this is known as a ‘declaration of inconsistent
interpretation’: Charter of Human Rights and Responsibilities Act 2006 (Vic), s 36.
[253]Charter of Human Rights and Responsibilities Act 2006 (Vic), s
36(5); Human Rights Act 2004 (ACT), s
32(3).
[254]Charter of
Human Rights and Responsibilities Act
2006 (Vic), s 37; Human
Rights Act 2004
(ACT), s
33(3).
[255] Twenty-six
declarations of incompatibility have been issued in the UK, but nine were
overturned on appeal. Statistic cited by Hunt, note 231.
[256] Statistic cited by Hunt,
above.
[257] McHugh, A Human
Rights Act, the courts and the Constitution
, note 190.
[258]J Debeljak, ‘The Human Rights Act 2004 (ACT): A Significant, Yet
Incomplete, Step Toward the Domestic Protection and Promotion of Human
Rights’ (2004) 15 Public Law Review 169, p 175. See also D Meagher,
‘Taking Parliamentary Sovereignty Seriously within a Bill of Rights
Framework’ (2005) 10 Deakin Law Review 686.
[259] The British
Institute of Human Rights, The Human Rights Act: Changing Lives (2008), p
5. At http://www.bihr.org.uk/sites/default/files/The%20Human%20Rights%20Act%20-%20Changing%20Lives.pdf (viewed 7 June 2009).
[260] Victorian Equal Opportunity and Human Rights Commission, The 2007 Report on
the Operation of the Charter of Human Rights and Responsibilities: First steps
forward
(2008), p 6. At http://www.humanrightscommission.vic.gov.au/publications/annual%20reports/2008charterreport.asp (viewed 4 June 2009).
[261] For
definitions of ‘public authority’ in other jurisdictions, see Human Rights Act 2004 (ACT), s 40; Charter of Human Rights and
Responsibilities Act 2006
(Vic), s 4; Human Rights Act 1998 (UK), s
6.
[262] These services include
those in the areas of welfare services, health care, and management of prisons
and other detention
facilities.
[263] Regarding the
ICCPR, the UN Human Rights Committee has stated ‘it would be
unconscionable to so interpret the responsibility under article 2 of the
Covenant as to permit a State party to perpetrate violations of the Covenant on
the territory of another State, which violations it could not perpetrate on its
own territory’: UN Human Rights Committee, Delia Saldias de Lopez v
Uruguay
, Communication No. 52/1979, UN Doc CCPR/C/OP/1 (1984), 88 at para
12.3. At http://www1.umn.edu/humanrts/undocs/html/52_1979.htm (viewed 4 June 2009).
[264] A
similar provision is included in Charter of Human Rights and Responsibilities
Act 2006
(Vic), s
3(1).
[265] A similar provision
is included in Human Rights Act 2004 (ACT), s 40B(2); Charter
of Human Rights and Responsibilities Act 2006
(Vic), s 38(2).
[266] Department of
Immigration and Multicultural Affairs, Charter of Public Service in a
Culturally Diverse Society
(1998). At http://www.immi.gov.au/media/publications/multicultural/nmac/append_g.htm (viewed 9 June 2009).
[267] M
Kalantis and B Cope, ‘The charter of public service in a culturally
diverse society, Australian Government’, New Learning. At http://newlearningonline.com/new-learning/chapter-4-learning-civics/the-charter-of-public-service-in-a-culturally-diverse-society-australian-government/
(viewed 7 June 2009).
[268] Human Rights Law Resource Centre, Case Studies: How a Human Rights Act can
Promote Dignity and Address Disadvantage
, section 1.12. At http://www.hrlrc.org.au/content/topics/national-human-rights-consultation/case-studies/ (viewed 26 May 2009).
[269] The
British Institute of Human Rights, The Human Rights Act: Changing Lives (2nd ed, 2008), p 15. At http://www.bihr.org.uk/sites/default/files/BIHR%20Changing%20Lives%20FINAL_0.pdf (viewed 7 June 2009).
[270] Victorian Equal Opportunity and Human Rights Commission, First steps
forward
, note 260, p
12.
[271] Victorian Equal
Opportunity and Human Rights Commission, above, p
12.
[272] Victorian Equal
Opportunity and Human Rights Commission, Emerging change, note 230, p
21.
[273]Public
Administration Act 2004
(Vic), s
7(1)(g).
[274]Public
Administration Act 2004
(Vic), s
8(ca).
[275]Public Service
Act 1999
(Cth), ss 10,
13.
[276] For information on
the complaints process, see Australian Human Rights Commission, Federal
Discrimination Law Online
, ch 6. At http://www.humanrights.gov.au/legal/FDL/index.html (viewed 4 June 2009).
[277] UN
Committee on Economic, Social and Cultural Rights, General comment No 9,
note 54, para
10.
[278] International
Commission of Jurists, Courts and the Legal Enforcement of Economic, Social
and

Cultural Rights: Comparative experiences of justiciability (2008), p 99. At http://www.humanrights.ch/home/upload/pdf/080819_justiziabilitt_esc.pdf (viewed 4 June 2009).
[279] For
a review of how courts around the world have adjudicated matters relating to
economic, social and cultural rights, see International Commission of Jurists,
above, ch 3.
[280]Human
Rights and Equal Opportunity Commission Act
1986 (Cth), s 46P0(4)(d).
See also Australian Human Rights Commission, Federal Discrimination Law
Online
, note 276, ch
7.
[281]Human Rights Act
1998
(UK), s 8(3).
[282]Simpson v Attorney-General (Baigent’s case)
[1994] 3 NZLR 667.
[283]Charter of Human Rights and Responsibilities Act 2006 (Vic), s 39(3); Human Rights Act 2004 (ACT), s 40C(4).
[284] See Administrative
Decisions (Judicial Review)
Act 1977 (Cth), ss 5, 6. It would
be possible, but not necessary, to include a specific ground of review relating
to a failure to take into account the human rights specified in a national Human
Rights Act.
[285]Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 15, 15A,
16. Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) 20
FCR 104, 114 (Sweeney J), 126 (Morling J), 134 (Foster
J).
[286] See Australian Law
Reform Commission, Beyond The Door-Keeper: Standing to sue for public
remedies
, ALRC 87 (1996), at http://www.austlii.edu.au/au/other/alrc/publications/reports/78/ALRC78.html (viewed 5 June 2009); Australian Law Reform Commission, Standing in Public
Interest Litigation
, ALRC 27 (1985), at http://www.austlii.edu.au/au/other/alrc/publications/reports/27/ (viewed 5 June 2009).
[287]Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 46P(2),
46PO(1). See also Access for All Alliance (Hervey Bay) Inc v Hervey Bay City
Council
(2007) 162 FCR
313.
[288] Human Rights Law
Resource Centre, Case Studies, note 268, section 1.4.
[289] Human Rights Law
Resource Centre, above, section 2.2.
[290]Human Rights and
Equal Opportunity Commission Act 1986
(Cth), s
11(1)(g).
[291]National
Human Rights Consultation
Background Paper (2008), p 13. At http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/About_Human_Rights_in_Australia (viewed 9 June 2009).
[292] See
section 11(1)(f) and Part II, Divisions 3 and 4 of the HREOC Act regarding the
Commission’s human rights and discrimination in employment complaint
functions. See Part IIB of the HREOC Act regarding the Commission’s
unlawful discrimination complaint functions.
[293] Human Rights and Equal
Opportunity Commission, Annual Report 2007-2008, ch 4. At http://www.humanrights.gov.au/about/publications/annual_reports/2007_2008/chap4.html#4_1 (viewed 9 June 2009).
[294]Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 11(1)(o),
s 3(1).
[295]Racial
Discrimination Act 1975
(Cth), s 20(1)(e); Sex Discrimination Act
1984
(Cth), s 48(1)(gb); Disability Discrimination Act 1992 (Cth), s
67(1)(l); Age Discrimination Act 2004 (Cth), s 53(1)(g). Special purpose
commissioners also have the specific function of assisting the Federal Court and
Federal Magistrates Court as amicus curiae with leave of the court: Human Rights and Equal Opportunity Commission Act 1986 (Cth), s
46PV.
[296]Charter of Human
Rights and Responsibilities Act 2006
(Vic), s
40(1).
[297] Williams, note 102, p
25.
[298] Consultation
Committee for a Proposed WA Human Rights Act, note 199, Appendix
E.
[299] Amnesty International
Australia, ‘Majority support the introduction of a law to protect human
rights in Australia’, (Media Release, 12 March 2009). At http://www.amnesty.org.au/news/comments/20460/ (viewed 6 May 2009).
[300] S
Zifcak & A King, Wrongs, Rights & Remedies: An Australian
Charter?
(2009), p 54. At http://www.australiancollaboration.com.au/booksreports/Wrongs_Rights_Remedies.pdf (viewed 7 June 2009).
[301] S
Harris Rimmer, ‘Some lawyers take cheap shots, some even work pro
bono’, The Canberra Times, 27 January 2009. At http://www.canberratimes.com.au/news/opinion/editorial/general/some-lawyers-take-cheap-shots-some-even-work-pro-bono/1416770.aspx?storypage=0 (viewed 12 May 2009).
[302] See, for example, British Institute of Human Rights, Changing Lives, note 259; British
Institute of Human Rights, Changing Lives (2nd ed), note 269; Human Rights
Law Resource Centre, Case Studies, note 268.
[303] UK Department for Constitutional Affairs, note 234, p
4.
[304] Jack Straw (UK Lord
Chancellor and Secretary of State for Justice) has acknowledged that the Human Rights Act 1998 (UK) is ‘unfortunately perceived by sections
of the public and the media as a “villains charter”’. However,
he remains ‘firmly supportive’ of the Human Rights Act: Letter from
the Rt Hon Jack Straw MP, Secretary of State for Justice to the Chairman, Joint
Committee on Human Rights, 11 January 2009, reproduced in Joint Committee on
Human Rights, A Bill of Rights for the UK? Government Response to the
Committee's Twenty-ninth Report of Session 2007-08
(2009), p
32.
[305] UK Department for
Constitutional Affairs, note 234, p
4.
[306] A Byrnes, H
Charlesworth & G McKinnon, Bills of Rights in Australia: History,
Politics and Law
(2009), p
65.
[307] J Burnside, Who’s afraid of Human Rights? (28th Sir Richard Kirby
Lecture, Wollongong University, 25 September 2008). At http://www.humanrightsact.com.au/2008/2008/11/27/whos-afraid-of-human-rights/ (viewed 13 May 2009).
[308] National Human Rights Consultation, Background Paper (2008), p 12. At http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/About_Human_Rights_in_Australia (viewed 9 June 2009).
[309]Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992; Age Discrimination Act
2004
. The Race Discrimination Act and Sex Discrimination Act were intended
to give effect to Australia’s obligations under the CERD and CEDAW, respectively.
[310] The
particular grounds of unlawful discrimination under federal anti-discrimination
law can be summarised as follows: race, colour, descent or national or ethnic
origin; sex; marital status; pregnancy or potential pregnancy; family
responsibilities; disability; people with disabilities in possession of
palliative or therapeutic devices or auxiliary aids; people with disabilities
accompanied by an interpreter, reader, assistant or carer; a person with a
disability accompanied by a guide dog or an ‘assistance animal’; and
age. Also falling within the definition of ‘unlawful discrimination’
is: offensive behaviour based on racial hatred; sexual harassment; harassment of
people with disabilities; and victimisation and several criminal offences
relating to
discrimination.
[311]Equal
Opportunity Act 1995
(Vic), s 6(j) (religious belief or activity); Discrimination Act 1991 (ACT), s 7(1)(i) (religious conviction); Anti-Discrimination Act 1991 (Qld), s 7(1)(i) (religious belief or
religious activity); Anti-Discrimination Act 1998 (Tas), ss 16(o)
(religious belief or affiliation), 16(p) (religious activity); Anti-Discrimination Act 1992 (NT), s 19(1)(m) (religious belief or
activity); Equal Opportunity Act 1984 (WA), s 53 (religious conviction); Anti-Discrimination Act 1977 (NSW), s 7 (race, including ethno-religious
origin); Canadian Human Rights Act 1985 (Can), s 3(1) (religion); Equality Act 2006 (UK), pt 2 (religion and belief); Human Rights Act
1993
(NZ), s 21(1)(c) (religious
belief).
[312]Equal
Opportunity Act 1995
(Vic), s 6(g) (political belief or activity); Discrimination Act 1991 (ACT), s 7(1)(i) (political conviction); Anti-Discrimination Act 1991 (Qld), s 7(1)(j) (political belief or
activity); Anti-Discrimination Act 1998 (Tas), ss 16(m) (political belief
or affiliation), 16(n) (political activity); Anti-Discrimination Act 1992 (NT), s 19(1)(n) (political opinion, affiliation or activity); Equal
Opportunity Act 1984
(WA), s 53 (political conviction); Equality Act 2006 (UK), pt 2 (belief); Human Rights Act 1993 (NZ), s 21(1)(j)
(political opinion).
[313]Equal Opportunity Act 1995 (Vic), ss 6(d) (lawful sexual activity), 6(l)
(sexual orientation); Anti-Discrimination Act 1977 (NSW), s 49ZG
(homosexuality); Equal Opportunity Act 1995 (Vic), ss 6(d) (lawful sexual
activity), 6(l) (sexual orientation); Anti-Discrimination Act 1991 (Qld),
ss 7(1)(l) (lawful sexual activity), 7(1)(n) (sexuality); Anti-Discrimination
Act 1998
(Tas), ss 16(c) (sexual orientation, including heterosexuality,
homosexuality & bisexuality), 16(d) (lawful sexual activity); Equal
Opportunity Act 1984
(WA), s 35O (sexual orientation); Equal Opportunity
Act 1984
(SA), s 29(1)(b) (sexuality, including heterosexuality,
homosexuality & bisexuality); Anti-Discrimination Act 1992 (NT), s
19(1)(c) (sexuality, including heterosexuality, homosexuality &
bisexuality); Canadian Human Rights Act 1985 (Can), s 3(1) (sexual
orientation); Equality Act 2006 (UK), Pt 3 (sexual orientation); Human
Rights Act 1993
(NZ), s 21(1)(m) (sexual orientation, including a
heterosexual, homosexual, lesbian or bisexual
orientation).
[314]Anti-Discrimination Act 1977 (NSW), s 38B (transgender); Equal
Opportunity Act 1995
(Vic), s 6(ac) (gender identity); Discrimination Act
1991
(ACT), ss 7(1)(b) (sexuality), 7(1)(c) (transsexuality); Equal
Opportunity Act 1984
(SA), s 29(1)(b) (sexuality, including transsexuality); Anti-Discrimination Act 1998 (Tas), s 16(c) (sexual orientation,
including transsexuality); Anti-Discrimination Act 1992 (NT), s 19(1)(c)
(sexuality, including
transsexuality).
[315]Equal
Opportunity Act 1995
(Vic), s 6(c) (industrial activity); Discrimination
Act 1991
(ACT), s 7(k) (membership or non-membership of an association or
organisation of employers or employees); Anti-Discrimination Act 1991 (Qld), s 7(1)(k) (trade union activity); Anti-Discrimination Act 1998 (Tas), s 16(l) (industrial activity); Anti-Discrimination Act 1992 (NT), s 19(1)(k) (trade union or employer association
activity).
[316]Anti-Discrimination Act 1977 (NSW), s 7 (race, including nationality); Anti-Discrimination Act 1998 (Tas), s 16(a) (race, including
nationality); Equal Opportunity Act 1995 (Vic), s 6(i) (race, including
nationality); Discrimination Act 1991 (ACT), s 7(1)(h) (race, including
nationality); Anti-Discrimination Act 1991 (Qld), s 7(1)(g) (race,
including nationality); Equal Opportunity Act 1984 (WA), s 51 (race,
including nationality); Anti-Discrimination Act 1992 (NT), s
19(1)(a); Equal Opportunity Act 1984 (WA), s 36 (race, including
nationality); Human Rights Act 1993 (NZ), s 21(1)(g) (ethnic or national
origins including nationality and citizenship). Whilst the Race Discrimination
Act prohibits discrimination on the basis of ‘national origin’, this
is separate from ‘nationality’ and ‘citizenship’ which
are not protected under the Race Discrimination Act. See, for example, Australian Medical Council v Wilson (1996) 68 FCR 46, 75 (Sackville J); Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90
FCR 202, 210 - 212 (Carr, Sundberg and North
JJ).
[317]Discrimination
Act 1991
(ACT), s 7(1)(m) (profession, trade, occupation or
calling).
[318]Anti-Discrimination Act 1998 (Tas), s 16(r) (irrelevant medical record); Anti-Discrimination Act 1992 (NT), s 19(1)(p) (irrelevant
medical record).
[319]Discrimination Act 1991 (ACT), s 7(1)(o) (spent conviction within the
meaning of the Spent Convictions Act 2000 (ACT)); Anti-Discrimination
Act 1998
(Tas), s 16(q) (irrelevant criminal record); Anti-Discrimination
Act
1992 (NT), s 19(1)(q) (irrelevant criminal
record).
[320] ICCPR, note 1, art
26.
[321] UN Human Rights
Committee, Concluding Observations: Australia (2009), note 90, para 12.
[322] UN Committee on
Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), note 80,
para 14.
[323] See, generally,
Human Rights and Equal Opportunity Commission, Submission to the Senate
Standing Committee on Legal and Constitutional Affairs on the Inquiry into the
Effectiveness of the Sex Discrimination Act 1984 (Cth) in Eliminating
Discrimination and Promoting Gender Equality
(1 September 2008), pts 11 and
12. At http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 7 June 2009).
[324] The
Senate Standing Committee on Legal and Constitutional Affairs concluded that it
was ‘concerned by evidence it received of specific gaps in coverage under
the Act’: Senate Standing Committee on Legal and Constitutional Affairs,
Parliament of Australia, Effectiveness of the Sex Discrimination Act
1984 (Cth) in eliminating discrimination and promoting gender equality (2008), para 11.20. At http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm (viewed 7 June 2009). Likewise, the Australian Law Reform Commission has
observed that the SDA ‘remains only a partial response to women’s
legal inequality’: Equality Before the Law: Women’s Equality, Report No 69, pt II (1994), para 4.5. At http://www.austlii.edu.au/au/other/alrc/publications/reports/69part2/ (viewed 7 June 2009).
[325] Human Rights and Equal Opportunity Commission, Submission to the Inquiry into
the Effectiveness of the
Sex Discrimination Act, note 323, paras 312 -
317.
[326] Human Rights and
Equal Opportunity Commission, above, pt 10. See also Human Rights and Equal
Opportunity Commission, It’s About Time: Women, men, work and family (2007). At http://www.humanrights.gov.au/sex_discrimination/its_about_time/ (viewed 7 June 2009).
[327] Human Rights and Equal Opportunity Commission, Submission to the Inquiry into
the Effectiveness of the
Sex Discrimination Act, note 323, paras 388 -
393.
[328] Human Rights and
Equal Opportunity Commission, above, paras 318 -
327.
[329] See, for example, K
Lindsay, N Rees and S Rice, Australian Anti-Discrimination Law: Text, Cases
and Materials
(2008), p 83.
[330] See, for example, M
Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) pp 2 –
3.
[331] See, for example, Hinchcliffe v University of Sydney (2004) 186 FLR 376, 476 at paras 115 -
116. The Commission acknowledges, however, that the current definition of
indirect discrimination under the Disability Discrimination Act may soon be
amended under the Disability Discrimination and Other Human Rights
Legislation Amendment Bill
2008
.
[332] See, for
example, IW v City of Perth (1997) 191 CLR 1, 63 (Kirby J); Australian
Iron & Steel Pty Ltd v Banovic
(1989) 169 CLR 165, 176 (Deane and
Gaudron JJ); Glasgow City Council v Zafar [1998] 2 All ER 953, 958, cited
with approval in Sharma v Legal Aid (Qld) [2002] FCAFC 196, para
40 (Heerey, Mansfield and Hely JJ); Shamoon v Chief Constable of the RUC [2003] 2 All ER 26, 71 (Ld
Rodger).
[333] The notable
exception is the Sex Discrimination Act, where the onus of proving
reasonableness in respect of indirect discrimination rests with the respondent
(s 7C). However, the onus in respect of the remaining elements of direct and
indirect discrimination remains with the applicant under the Sex Discrimination
Act.
[334] See further Human
Rights and Equal Opportunity Commission, Submission to the Inquiry into the
Effectiveness of the
Sex Discrimination Act, note 323, paras 190 –
199.
[335] The Senate Standing
Committee on Legal and Constitutional Affairs noted that ‘the existing
patchwork approach to coverage under the [Sex Discrimination Act] appears both
unnecessarily complex and undesirable’: Senate Standing Committee on Legal
and Constitutional Affairs, Effectiveness of the Sex
Discrimination Act, note 324, para
11.22.
[336] The Labour Party, Manifesto 2005: Britain forward not back (2005), p 112. At http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/13_04_05_labour_manifesto.pdf (viewed 7 June 2005).
[337] United Kingdom, Department for Communities and Local Government, Discrimination Law Review, A Framework for Fairness: Proposals for a Single
Equality Bill for Great Britain – A consultation paper,
(June 2007), p
11. At http://www.communities.gov.uk/publications/communities/frameworkforfairnessconsultation (viewed 7 June 2005).
[338] UK
Department for Communities and Local Government, above, p
11.
[339] UK Department for
Communities and Local Government, above, p 12.
[340] UK Department for
Communities and Local Government, above, p
13.
[341]Equality Act 2006 (UK), pts 1 - 4. Protection now applies to discrimination on the basis of
religion or belief and sexual orientation. For more detail on the nature of the
positive duties aimed at combating systemic discrimination, see the UK
Commission for Equality and Human Rights, Public Sector Duties. At http://www.equalityhumanrights.com/en/forbusinessesandorganisation/psd/Pages/variationSiteDefault.aspx (viewed 28 May 2009).
[342] United Kingdom, Government Equalities Office, ‘Harman: Equality Bill
confirmed in Legislative Programme’ (Press Release, 3 December
2008). At http://www.equalities.gov.uk/media/press_releases/equality_bill_confirmed.aspx (viewed 28 May 2009).
[343] See, generally, United Kingdom, The Equality Bill – Government response
to the Consultation
(2008). At http://www.official-documents.gov.uk/document/cm74/7454/7454.asp (viewed 7 June 2009).
[344] See, generally, The Equalities Review, Fairness and Freedom: The Final Report
of the Equalities Review
(2007). At http://archive.cabinetoffice.gov.uk/equalitiesreview/publications.html (viewed 7 June 2009).
[345] See, for example, UK Department for Communities and Local Government, note 337, p
13.
[346] Senate Standing
Committee on Legal and Constitutional Affairs, Effectiveness of the Sex
Discrimination Act 1984, note 324; Senate Standing Committee on Legal and
Constitutional Affairs, Parliament of Australia, Inquiry into the Disability
Discrimination and Human Rights Legislation Amendment Bill 2008
(2009), at http://www.aph.gov.au/Senate/committee/legcon_ctte/disability_discrimination/report/index.htm (7 June 2009).
[347] Productivity Commission, Review of the Disability Discrimination Act
1992, Report no. 30 (2004). At http://www.pc.gov.au/projects/inquiry/dda/docs/finalreport (7 June 2009).
[348] Senate
Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act, note 324, Recommendation
43.
[349] It is imperative to
ensure that any such harmonisation process: (1) ensures that laws comply with
international human rights standards; (2) promotes ‘best practice’
models rather than the ‘lowest common denominator’ from each
jurisdiction; (3) provides greater clarity about the practical application of
equality rights and responsibilities in specific contexts; (4) reduces the
transactional costs for both applicants and respondents; and (5) promotes access
to justice, with particular focus on improving access for people who are mostly
intensely affected by inequality and other violations of human rights in
Australia. See Human Rights and Equal Opportunity Commission, Submission to
the Inquiry into the Effectiveness of the
Sex Discrimination Act, note 323, para
776.
[350] Human Rights and
Equal Opportunity Commission, Submission to the Inquiry into the
Effectiveness of the
Sex Discrimination Act, note 323, para
781.
[351] Senate Standing
Committee on Legal and Constitutional Affairs, Effectiveness of the Sex
Discrimination Act, note 324, para
11.107.
[352] Human Rights and
Equal Opportunity Commission, Submission to the Inquiry into the
Effectiveness of the
Sex Discrimination Act 1984, note 323, paras 781 -
783.
[353] A similar view was
expressed in several other submissions to the Senate review of the SDA: Senate
Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act, note 324, paras 4.57 - 4.65.
[354] United Kingdom, The
Equality Bill,
note 343, para
1.11.
[355] See Canadian
Human Rights Act 1985
(Can); Human Rights Act 1993 (NZ); Equal
Opportunity Act 1995
(Vic); Equal Opportunity Act 1984 (WA); Anti-Discrimination Act 1991 (Qld); Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act
1998
(Tas); Equal Opportunity Act 1984 (SA); Anti-Discrimination
Act 1991
(Qld); Anti-Discrimination Act 1992 (NT); Discrimination
Act 1991
(ACT).
[356] The
Sex Discrimination Commissioner also has responsibility for matters relating to
discrimination on the basis of age.
[357] Council for Aboriginal
Reconciliation, Recognising Aboriginal and Torres Strait Islander Rights:
Ways to implement the National Strategy to Recognise Aboriginal and Torres
Strait Islander Rights, one of four National Strategies in the
Roadmap for
Reconciliation (2000). At http://www.austlii.edu.au/au/other/IndigLRes/car/2000/9/pg7.htm (viewed 1 May 2009).
[358] Constitutional Commission, Final Report of the Constitutional Commission (1988), p 16. See also House of Representatives Standing Committee on Legal and
Constitutional Affairs, Parliament of Australia, Reforming our Constitution:
A roundtable discussion
(2008), p 49. At http://www.aph.gov.au/house/committee/laca/constitutionalreform/report/fullreport.pdf (viewed 1 May 2009).
[359] Council for Aboriginal Reconciliation, Reconciliation: Australia’s Challenge: final report of the Council for Aboriginal
Reconciliation to the Prime Minister and the Commonwealth Parliament
(2000),
p 105. At http://www.austlii.edu.au/au/other/IndigLRes/car/2000/16/text10.htm (viewed 28 May 2009). Constitutional reform was also identified as an essential
component of the proposed ‘Social Justice Package’ to be developed
in response to the Mabo decision: see Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 1995 (1995),
ch 4. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport95.html (viewed 28 May 2009). See also Aboriginal and Torres Strait Islander Commission, Recognition, Rights and Reform: a Report to Government on Native Title Social
Justice Measures
(1995).
[360] In Kartinyeri v Commonwealth, Gaudron, Gummow and Hayne JJ left open the
possibility that a ‘manifest abuse’ of the federal
legislature’s use of s 51(xxvi) may generate a justiciable constitutional
question for the High Court: (1998) 195 CLR 337, 369,
380.
[361] R S French, Dolores Umbridge and the Concept of Policy as Legal Magic (Speech
delivered at the Australian Law Teachers’ Association National
Conference, Perth, 24 September 2007), para
19.
[362] See further
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2008
, note 59, pp 71 -
74.
[363] UN Committee on the
Elimination of Racial Discrimination, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Australia
, UN Doc
CERD/C/AUS/CO/14 (2005), para
9.
[364] Australian Law Reform
Commission, Equality before the Law: Women’s Equality, note 324, para
4.16.
[365] ICESCR, note 2, art 13; CRC, note 12, art 28; CERD,
note 7, arts 5,
7; CEDAW, note 10, art
10.
[366] Universal
Declaration, note 3, art
26(2).
[367] UN Human Rights
Committee, Concluding Observations: Australia (2009), note 90, pp 8 - 9.
[368] Council of Australian
Governments (COAG), Communiqué: Indigenous Issues (COAG Meeting,
Canberra, 14 July 2006). At http://www.austlii.edu.au/au/journals/AILR/2006/58.html (viewed 28 May 2009).
[369] Ministerial Council on Education, Employment, Training and Youth Affairs, Melbourne Declaration on Educational Goals for Young Australians (5
December 2008). At http://www.curriculum.edu.au/mceetya/melbourne_declaration,25979.html (viewed 5 June 2009).
[370] National Human Rights Consultation, note 308, p 13.
[371]Human Rights and
Equal Opportunity Commission Act 1986
(Cth), s
11(1)(e).
[372] In May 2009,
the UN Committee on Economic, Social and Cultural Rights noted with concern that
the Commission has limited competency with regard to the ICESCR. The Committee
recommended that Australia strengthen the mandate of the Commission in order to
cover all rights in the ICESCR. See UN Committee on Economic, Social and
Cultural Rights, Concluding Observations: Australia (2009), note 80, para 13.
[373] Human Rights and Equal
Opportunity Commission, A last resort?, note 182.
[374] Human Rights and Equal
Opportunity Commission, National Inquiry into Rural and Remote Education,
note 76.
[375]Human Rights and
Equal Opportunity Commission Act 1986
(Cth), s
11(1)(f).
[376]Human Rights
and Equal Opportunity Commission Act 1986
(Cth), ss 11(1)(f),
3(1).
[377]Human Rights and
Equal Opportunity Commission Act 1986
(Cth), ss 30(1),
31(b).
[378]Human Rights
and Equal Opportunity Commission Act 1986
(Cth), ss 21 -
23.
[379]Human Rights and
Equal Opportunity Commission Act 1986
(Cth), ss 29(2)(b), 29(2)(c).
[380] Note that, under section
45 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth),
the Commission is required to prepare an annual report on its operations during
the prior year. It is not suggested that the Australian Government be required
to table a formal response to the Commission’s annual report.
[381] Senate Standing
Committee on Legal and Constitutional Affairs, Reconciliation: Off track (2003), para 6.35, recommendation 9. At http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2002-04/reconciliation/index.htm (viewed 5 June 2009).
[382] Human Rights and Equal Opportunity Commission, Submission to the Joint
Committee of Public Accounts and Audit Inquiry on the Effects of the Ongoing
Efficiency Dividend on Smaller Public Sector Agencies
(29 July 2008), para
6. At http://www.humanrights.gov.au/legal/submissions/2008/20080729_efficiency_dividend.html (viewed 7 June 2009). Budget appropriation for 2007-08 was $15.5m. This was
reduced to $14.9m at additional estimates with the withdrawal of funding for
workplace relations reform and the application of the additional 2% efficiency
dividend.
[383] For further
background to this funding reduction, see Human Rights and Equal Opportunity
Commission, Submission to the Joint Committee of Public Accounts and Audit
Inquiry
, above.