A Matter of National Importance

‘After 10 months of listening to the people of Australia, the Committee was left in no doubt that the protection and promotion of human rights is a matter of national importance.’ The National Human Rights Consultation Committee delivered its report to the Attorney-General on 30 September.  The report was publicly released on 8 October.

The Committee recommended that Australia adopt a federal Human Rights Act.

It also recommended that human rights education in schools and universities, in the broad community and in the public sector, be significantly enhanced, and suggested a National Human Rights Education Plan could coordinate the delivery of human rights education across sectors in Australia.

The Commission agrees that implementation of these recommendations is an essential ingredient in developing a human rights culture in Australia.

However, human rights education is fundamentally linked to effective human rights protections.  While human rights protections in Australia remain an incomplete patchwork, it will be difficult to deliver truly effective human rights education.

For this reason and in accordance with the findings and recommendations of the Committee, Australia needs a national Human Rights Act based on the ‘dialogue model’.

This reform would be a modest and sensible reform of the way that human rights are considered by our decision-makers. The Committee’s recommendations to enhance the functions of the Australian Human Rights Commission are also important and welcome.  In particular, the recommendation to expand the definition of ‘human rights’ under the Australian Human Rights Commission Act which would mean the Commission could perform its key functions with regard to all of Australia’s international human rights obligations.

We particularly welcome the recommendation that complaints of human rights violations and those made under International Labor Organization Convention 111 be justiciable in court if they cannot be conciliated.  Currently, individuals whose human rights have been breached, such as those who have experienced inhuman and degrading treatment while in immigration detention, have no access to an effective remedy.

The final outcome of their complaint is a report made to Parliament, the recommendations of which may not be acted upon.  Providing access to the courts for these complaints is an important step towards providing an effective remedy for breaches of human rights.

There has been some public debate about whether the Commission should have a role in notifying Parliament if a court finds that a law is inconsistent with human rights.  The Commission’s view is that it does not matter who is charged with notifying Parliament.  What does matter, however, is that Parliament is informed, so that there is an opportunity for a careful and principled reconsideration of a law that has been found by a court to breach human rights.

In any event, this element of a Human Rights Act, while important, is not the key reform that will lead to enhanced human rights protections.  What will make the greatest difference to human rights protections are the pre-legislative processes and public authority obligations that will assist in preventing human rights problems from occurring in the first place.

Having heard about the basic rights that affect all of us in our everyday lives, the Committee recommended that some economic, social and cultural rights might be included in a federal Human Rights Act, namely the rights to an adequate standard of living, to the enjoyment of the highest attainable standard of physical and mental health, and the right to education.  This is a significant development, as economic, social and cultural rights are generally not included in human rights instruments in similar jurisdictions.  Following advice from Stephen Gageler QC and Henry Burmester QC, the Committee recommended that economic, social and cultural rights not be judicially enforceable.

The Commission acknowledges the very strong views that economic, social and cultural rights should not be the subject of litigation.  Consequently we welcome the recommendation that the Commission should be able to receive complaints about possible breaches of these rights.  Our investigation and conciliation processes will ensure that a discussion takes place between individuals who feel these rights have been breached and relevant government decision-makers.

The Commission supports the Committee’s suggestion that some economic, social and cultural rights should be included in a Human Rights Act, and that those parts of the Act that do not involve access to the courts, apply to these rights.  The lives of many people in Australia will be enhanced if a human rights framework is consistently applied to the development of law and policy affecting the rights to an adequate standard of living, the highest attainable standard of health and the right to education.

The issue as to whether Australia should adopt a Human Rights Act remains controversial.  Opponents of such a reform have been vocal since the report’s release.  Their main criticism is that a Human Rights Act shifts power from the Parliament to the courts.  However, as suggested by Professor Stephen Gardbaum, an international expert on the dialogue model of human rights protection, in assessing Human Rights Acts ‘the relevant question is not whether there has been an increase in judicial power but whether too much or too little’.

In our view, the balance in the model being considered in Australia is the right one.  It will not, as some have suggested, compromise our system of democracy.  An Australian Human Rights Act would be fundamentally democratic.  It would be an act of our democratically-elected Parliament setting out the framework for human rights protections, public accountability and good governance in Australia.

We are at a significant juncture in the debate about whether Australia should have a Human Rights Act.  The Commission’s call to both those who support and those who oppose a Human Rights Act is to engage in informed and measured debate on the question of how best to protect human rights.

There is much common ground – everyone engaged in this debate expresses a desire for a community where human rights are respected.  Let’s build on this common ground to build a community where all people are more aware of their human rights and their responsibility to protect the rights of others.

The Hon Catherine Branson QC is President of the Australian Human Rights Commission