Written by Paula Gerber, Professor of Human Rights Law, Monash University, and Melissa Castan, Associate Professor, Law Faculty, Monash University.
Australia is the only Western democracy that does not have a national Human Rights Act, but this may be about to change.
After an inquiry lasting more than a year, the Parliamentary Joint Committee on Human Rights has just delivered its report to parliament. The report sets out 17 recommendations, including that “the government introduce legislation to establish a Human Rights Act”.
The report is a comprehensive 486 pages. Of particular note is that of the 335 submissions received, 87.2% (292) support the adoption of federal Human Rights Act.
So why do we need laws like this, and what might they look like?
A ‘patchwork quilt’ approach
Australia has a notoriously “patchwork quilt” approach to protecting human rights. We have some specific laws that aim to prevent discrimination based on particular attributes, such as sex, race, disability and age.
But these laws only prohibit discrimination. They don’t set out the basic human rights we all have, such as the right to a fair trial, the right to education and the right to freedom of religion and belief.
Our existing anti-discrimination laws do not provide adequate protection against government conduct that violates human rights. As President of the Australian Human Rights Commission Rosalind Croucher noted:
Policy failures like Robodebt and evidence from the Disability Royal Commission have focused community attention on the need for better human rights protections.
Australia needs comprehensive laws that address the rights of all people across the country. Three of Australia’s eight states and territories have such acts, which means rights protection in Australia is a geographic lottery, with Victorians, Canberrans and Queenslanders the winners.
These state laws are having a positive impact on the lives of people in these jurisdictions. For example, in Queensland, a single mother who had experienced family violence was able to rely on the state Human Rights Act to stop her being evicted as a result of serious breaches of the lease caused by her ex-partner, who had refused to leave the premises.
A federal Human Rights Act in Australia would go a long way to fixing our current unequal and lopsided approach to protecting human rights.
International broken promises
It’s more than 40 years since Australia ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).
When the government committed to these two landmark international treaties (along with more than 170 other countries), it promised to implement these human rights laws in Australia. It has not.
In 2017, the United Nations Human Rights Committee urged Australia to “adopt comprehensive federal legislation giving full legal effect” to the treaties. In the same year, the UN Committee on Economic, Social and Cultural Rights, stated:
The Committee remains concerned that in spite of its previous concluding observations, the Covenant provisions are still not fully incorporated into the State party’s domestic legal order.
What would a Human Rights Act look like?
Helpfully, the parliamentary committee’s report includes a model Human Rights Act the government can use as a draft bill. The model legislation includes important fundamental rights, currently not well protected in Australia, such as,
- protection of children
- protection of families
- freedom of thought, conscience and religion
- rights to culture
- right to health
- right to adequate standard of living
- right to a healthy environment.
What difference would laws like this make?
Having a national Human Rights Act will not fix every human rights problem we have in Australia. It won’t magically end family violence, stop climate change or solve the housing crisis. No law alone can do this.
But it will create a more rights-respecting culture, in government decision-making and in the community broadly, which will contribute to a stronger society. Having a Human Rights Act will make government more attuned to respecting human rights and more accountable for the consequences if it acts contrary to human rights.
Laws like these won’t lead to human rights eclipsing other democratic values and concerns. This is because the proposed Human Rights Act allows reasonable and justifiable limits to be placed on rights.
For example, the right to free speech, is limited by defamation, privacy and hate speech laws, and the right to freedom of assembly can be limited by the need for public safety. The proposed Human Rights Act will “force parliament to be more transparent about the justifications for limiting rights, and this contributes to the democratic accountability of parliament".
So, will it actually happen?
Unfortunately, this is not the first time that the government’s own appointees have recommended Australia enact a federal Human Rights Act.
In 2009, the National Human Rights Consultation Committee, led by Frank Brennan, recommended these laws. This recommendation was rejected, and we instead got a non-legislative “Human Rights Framework”.
It would be a brave government that rejects a second recommendation, particularly when it comes from their own parliamentary committee and has such wide community backing, as evidenced by the hundreds of submissions in support.