If I were to assume, if only in imagination, the role of Attorney-General, I would try to make human rights more effective for all Australians. There is much to be done. The Government has recently introduced legislation to establish a Parliamentary Joint Committee on Human Rights and to require statements of compatibility of draft legislation to be laid before Parliament (Human Rights (Parliamentary Scrutiny) Bill 2010). These measures take up, in part, the Report of the National Consultation (the Brennan Committee), but they create no new substantive rights. The Committee’s recommendations for a comprehensive federal Human Rights Act have not been accepted.
Undaunted by this, I would nevertheless start a process aimed at the enactment of a general protection of the right to equality and non-discrimination, as the precursor of a constitutional provision.
Australian law does not ensure or protect equality on a comprehensive basis. There are many gaps and inconsistencies in the current protection provided by federal anti-discrimination laws. They do not apply, for example, to discrimination on the basis of religion, nationality or sexual preference. There are exemptions and exclusions from the legislation, and it can be overridden, as occurred with theRacial Discrimination Act in 2007. Equality in the judicial process is an accepted norm, but express constitutional protection of equality applies only to State discrimination against residents of another State (s 117). The Constitution may actually authorise racial discrimination (s 51 xxvi).
The right to equality and non-discrimination is a basic human right, and is an essential element in the key instruments to which Australia is a party. Collectively, those instruments require States to provide equality before the law and the equal protection of the law, comprehensive protection from discrimination and the equal enjoyment of rights and freedoms, without distinction or discrimination on any ground. Equality rights apply to the full range of rights and freedoms, whether civil, political, economic, social or cultural.
Contrary to our international commitments, discrimination can occur in Australia for which no recourse or remedy is available. The UN treaty bodies have criticised the lack of comprehensive protection of human rights in Australia. The Human Rights Committee has, in particular, recommended the adoption of legislation providing comprehensive protection of the right to equality and non-discrimination (Concluding Observations, 2000, 2009).
Federal anti-discrimination laws need to be thoroughly overhauled to comply more fully with our international human rights obligations and to eliminate the current anomalies and inconsistencies. The Brennan Committee recommended this as a priority area for reform.
Such reform, though welcome, would fall short of a full guarantee of equality and non-discrimination, comprehensive both as to grounds and areas of application. To meet our international commitments and to provide protection of equality, and the remedies which attach to it, we need a legislative guarantee of equality and non-discrimination, with similar force and effect to that envisaged for the rights which would be protected under a general Human Rights Act. It should be the precursor to a constitutional guarantee.
A legislated guarantee of equality should be based on art 2(1) and art 26 of the ICCPR, which encompass equal enjoyment of rights, equal protection of the law and protection against any discrimination.
The ACT Human Rights Act 2004, s 8 and the Victorian Charter of Human Rights and Responsibilities Act 2006, s 8 echo the provisions of ICCPR art 26. Valuable models for the protection of equality rights can also be found in the Canadian Charter (s 15) and South African Bill of Rights (s 9).
A comprehensive Equality Act would guarantee equality before the law and under the law, equal protection and benefit of the law, protection against discrimination on any ground, and protection of the full and equal enjoyment of human rights and fundamental freedoms. Compatibly with the Covenant, the legislation should permit distinctions to be made on reasonable and objective criteria, in pursuit of a legitimate purpose consistent with recognised rights, and for affirmative action to eliminate conditions which contribute to prohibited discrimination. It would be aimed primarily at public authorities (including those of the States) and would have impact on subsequent legislation as far as is possible. It would act in conjunction with the reformed anti-discrimination laws.
The courts would have jurisdiction to consider whether a distinction was discriminatory; the outcome of any decision would depend on the model adopted. Where direct remedies are considered appropriate, these should be accessible and affordable.
No doubt difficult issues would arise from time to time, possibly with political overtones. However, jurisprudence under the ICCPR and in Canada and other countries show that the courts are equal to these challenges.
My first step would be to initiate a consultation process on the most appropriate mechanism for implementing a comprehensive statutory guarantee of equality along the lines outlined, to be introduced and adopted as soon as possible.
The enactment of such a law would be entirely consistent with the goals of any more comprehensive Human Rights Act which might follow, as it would be a part of such an Act. It would build on our existing protection of rights, advance compliance with our principal human rights obligations, overcome anomalies and gaps in current protection and would accord with the ideals of fairness and equality for which Australia likes to be known.
Elizabeth Evatt AC is a former judge of the Federal Court and Chief Justice of the Family Court, a former member of the UN Human Rights Committee and the UN Committee on the Elimination of Discrimination against Women, and a Commissioner of the International Commission of Jurists.