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New plan for a human rights act

30 March 20230 comments

The Australian Human Rights Commission has put forward a proposal for a Human Rights Act which would consolidate human rights protections under a single framework.

The Commission says Australia is the only liberal democracy in the world without a national act or charter of rights that explains what people’s basic rights are and how they can be protected.

According to HRC President Professor Rosalind Croucher, under the proposed act there would be new obligations on public servants and decision makers to consider human rights from the outset of developing new laws, policies and programs, and in making decisions.

She says this would be done by reference to the human rights included in a Human Rights Act.The Commission would conciliate human rights complaints where it is alleged that human rights are breached and the obligations to consider human rights have not been met. Where matters can’t be resolved, they could go to the Federal Court.

The Commission’s model would create legal protections for the human rights of all Australians, and ways to seek justice if people’s rights are breached in some way.

It would also provide options for people to challenge decisions that breach their human rights, and opportunities to go to court if their issues can’t be resolved through conciliation.

This model would also increase the responsibility that governments have, to consider how their laws, policies, and actions might affect people’s human rights.

The Commission says Australia has a patchwork legal framework of human rights protection. The rights that are protected are located in scattered pieces of legislation, the Constitution and the common law. It is incomplete and piecemeal.

It says the Australian Constitution offers only limited protection for a small number of discrete human rights.

“This includes the implied right to freedom of political communication; and a prohibition on making federal laws that establish a religion, impose a religious observance or prohibit the free exercise of any religion,” the Commission says.

“The High Court has rejected suggestions that other basic rights, like the right to equality, are implied by the text of the Constitution.

“The common law recognises a number of rights and freedoms. The common law protects human rights indirectly through statutory interpretation principles such as the ‘principle of legality’, which presumes that Parliament ‘does not intend to interfere with common law rights and freedoms except by clear and unequivocal language’.

“However, common law protections are fragile, as Parliament can pass a law that overrides them at any time.

“While Parliamentary scrutiny measures enable some consideration of human rights during the law-making process, these measures alone have not resulted in an embedded human rights culture within Parliament. Parliament routinely passes laws that are not human rights compliant.

“While discrimination laws implement key aspects of the international treaties Australia has ratified, they are only a partial implementation of them, with many key international rights finding no corresponding federal protections,” the Commission says.

Professor Croucher says the commission’s ‘Position Paper’ offers a model for an Australian Human Rights Act and associated reforms.

“It seeks to complete the central, missing piece of our domestic legislative framework for the promotion and protection of human rights in Australia – by bringing rights home,” she said.

“While every other country in the Commonwealth of Nations has moved forward by introducing comprehensive human rights protections in domestic legislation, Australia stands alone in not having introduced a Human Rights Act.

“Providing a pathway to enforceable remedies in a Human Rights Act would substantially improve access to justice and accountability for government decision making.

“As it stands, our Constitution protects some rights, expressly or impliedly, the principle of legality acts as a handbrake of a limited kind on encroachment of rights, and the parliamentary scrutiny of legislation plays a role. In this Position Paper, the Commission concludes that this is insufficient and does not provide the human rights protection that all people in Australia are entitled to.

“The beauty of a Human Rights Act, and other measures that frontload rights-mindedness, is that they are expressed in the positive – and they are embedded in decision making and ahead of any dispute.

“A Human Rights Act names rights; it provides an obligation to consider them and a process by which to do it – together supporting a cultural shift towards rights-mindedness, becoming part of the national psyche, not just an afterthought.

“The purpose of such an Act is to change the culture of decision making and embed transparent, human rights-based decisions as part of public culture. The outcome needs to be that laws, policies and decisions are made through a human rights lens and it is the upstream aspect that is so crucial to change,” Professor Croucher said.