Appendix 4AHRC Model Human Rights Act
1.1The Australian Human Rights Commission has summarised their model for a Human Rights Act for Australia as follows.
1. The HRA should be a ‘dialogue’ model
A positive duty on the Executive (‘public authorities’) to consider human rights and act compatibly with human rights
Parliament required to consider human rights in the HRA when making and debating laws, through existing parliamentary scrutiny measures
The judiciary required to interpret laws in a way that is compatible with the Human Rights Act where it is reasonably possible to do in light of Parliament’s intention. The judiciary would also review the executive’s compliance with the positive duty in relation to particular decisions and issue remedies for breaches of the Human Rights Act.
When a court, in the course of making a judgment, has found a parliamentary intention to override human rights contained in the HRA, the Attorney‑General should be required to trigger a process for reviewing the law in question.
2. The HRA should primarily incorporates rights derived from the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The Commission’s proposed Human Rights Act includes the following rights:
Recognition and equality before the law; and freedom from discrimination
Right to life
Protection from torture and cruel, inhuman or degrading treatment
Protection of children
Protection of families
Privacy and reputation
Freedom of movement
Freedom of thought, conscience, religion and belief
Peaceful assembly and freedom of association
Freedom of expression
Taking part in public life
Right to liberty and security of person
Humane treatment when deprived of liberty
Children in the criminal process
Fair hearing
Rights in criminal proceedings
Compensation for wrongful conviction
Right not to be tried or punished more than once
Retrospective criminal laws
Freedom from forced work
Cultural rights
Cultural rights – First Nations peoples
Right to education
Right to health
Right to an adequate standard of living
Right to a healthy environment
Right to work and other work-related rights
Right to social security
The Commission’s proposal also includes the following cross-cutting procedural duties:
Participation duty
First Nations peoples (embedding UNDRIP principles)
Children (embedding CRC principles)
Persons with disability (embedding CRPD principles)
Equal access to justice duty.
3. The HRA should reflect key rights and principles in the United Nations Declaration on the Rights of Indigenous Peoples
UNDRIP should be reflected in the following manner, subject to further consultations with First Nations peoples:
A ‘participation duty’ applicable to the executive, to reflect principles of self-determination through practical measures by public authorities, to complement a Voice to Parliament mechanism.
The inclusion of cultural rights, non-discrimination rights and ICESCR rights, alongside the participation duty. These should be included with a standalone cause of action, and representative standing.
First Nations participation reflected in parliamentary scrutiny processes through the requirement to list in Statements of Compatibility steps taken to ensure that participation of First Nations peoples has occurred
A clause enabling human rights in the Human Rights Act to be interpreted in light of UNDRIP in cases where the right of First Nations peoples have been affected.
The right to self-determination articulated in a preamble to the Human Rights Act as an overarching principle of the instrument.
4. There should be a positive duty on public authorities
A Human Rights Act would create a legislative obligation for public authorities to act compatibly with the human rights expressed in the Human Rights Act and to give proper consideration to human rights when making decisions
Public authorities would also be required to engage in participation processes where the ‘participation duty’ is relevant, as part of the ‘proper consideration’ limb (see below)
Compliance with the positive duty would be reviewable by courts.
5. The scope of public authorities should include core executive bodies and contractors/entities providing public services
The scope of public authorities with obligations to comply with the positive duty should include core executive bodies, such as government departments, agencies and offices, and the police.
It should also include ‘functional’ public authorities, which are private businesses, non-government organisations and contractors that have functions of a public nature and are exercising those functions on behalf of government. This would include, for example, Medicare funded healthcare services.
Not included in the scope of public authorities are the Parliament of Australia, except when acting in an administrative capacity; the courts, except when acting in an administrative capacity and where the Human Rights Act applies to the court’s own procedures; and entities declared by Human Rights Act regulations not to be a public authority
The Commission also proposes including an ‘opt-in’ clause for businesses and organisations to voluntarily accept responsibility to comply with the Human Rights Act.
6. The positive duty should be implemented alongside a comprehensive education and training program for public authorities
There should be a transition period pre-introduction (1 year) to develop proficiency within the public service
HRA implementation should include an initial whole-of-government education program, followed by permanent routine educational requirements at all levels of government. There should be permanent, dedicated internal departmental teams with human rights expertise and responsibility for consultation and education on Human Rights Act matters; the development and implementation of human rights action plans by federal departments and agencies; the development of tailored guidelines, checklists and resources; and respect for human rights included within public sector codes of conduct.
The Commission considers that it would have a central role in providing tailored and general education to public authorities, and would require dedicated ongoing resourcing to do so.
7. The HRA should include key procedural duties – a ‘participation duty’ and an ‘access to justice’ duty. It should also account for technological decision-making
Participation duty
There should be an overarching ‘participation duty’ be introduced into a Human Rights Act. The participation duty would primarily operate as an aspect of the binding positive duty on public authorities. It would also apply to proponents of legislation in a non-binding respect, reflected in Statements of Compatibility and assessed by PJCHR.
International law requires specific participation measures to be undertaken regarding decisions affecting the rights of First Nations peoples, children and persons with disability. The participation duty would require public authorities to ensure the participation on these 3 groups and individuals in relation to policies and decisions that directly or disproportionately affect their rights in the HRA.
The Commission has developed a set of guidelines that encompass key considerations for determining the quality of a general participation process. Such objective criteria can be applied by the courts when determining whether the Human Rights Act was breached due to failure to consult in relation to particular right(s).
As with substantive rights in the Human Rights Act, the participation duty could be justifiably limited through the application of the limitations clause.
Equal access to justice duty
In addition to an overarching participation duty, the Commission proposes a complementary ‘equal access to justice duty’ for public authorities
This duty would mean that public authorities have a positive duty to realise access to justice principles – that is, to meet minimum requirements associated with the right to a fair hearing, overlayed by non-discrimination principles that require the provision of certain key supports and services within the justice system to protect equality before the law.
It would be the role of public authorities to provide sufficient access to legal assistance, interpreters and disability support to individuals navigating the justice system.
The duty may arise as part of a consideration of whether related Human Rights Act rights were breached by public authorities due to a failure to implement minimum justice guarantees.
Technology and decision-making
Increasingly, public authorities are utilising technology, such as artificial intelligence, when making decisions, including decisions that directly affect people’s rights.
The same procedural fairness principles and rights consideration apply to all decisions made by public authorities, regardless of how the decision is made.
8. The HRA should apply to all within Australia’s federal jurisdiction
The HRA should protect all people within Australia’s territory and all people subject to Australia’s jurisdiction without discrimination.
This includes individuals under Australia’s ‘effective control’ overseas
A federal Human Rights Act should be restricted in scope to federal laws and federal public authorities
States that do not have an HRA could be encouraged to adopt a HRA that mirrors the federal HRA
9. The HRA should provide guidance about how rights in the HRA should be interpreted
The Human Rights Act should include a clause that references the seven core treaties that Australia has ratified and requires the rights in the Human Rights Act to be interpreted in light of those treaties.
10. The HRA should provide guidance to courts about how they should interpret legislation in light of the human rights contained within the HRA.
The interpretive clause should provide that courts are to prefer an interpretation that is compatible with human rights, provided that this I consistent with the intention of Parliament, as expressed through the statute under analysis.
The Commission’s approach to the interpretive clause is designed to chart a middle ground between a constitutionally suspect approach that would grant too much interpretive power to the courts to alter the meaning of legislation; and an approach that would simply be akin to the existing common law principle of legality.
The following wording is recommended: ‘ All primary and subordinate Commonwealth legislation to be interpreted, so far as is reasonably possible, in a manner that is consistent with human rights.’
The clause should also clarify that courts cannot declare that Acts of Parliament are invalid on the ground that they are incompatible with human rights. However, a statutory instrument that is not compatible with human rights may be invalid if it goes beyond what is authorised by the empowering Act.
11. The HRA should include a limitations clause describing the circumstances in which human rights may be permissibly limited
The limitations clause should be based on the ‘proportionality’ test that is strongly established in international law and applicable to human rights instruments.
A clause of this kind should incorporate an overarching statement to the effect that the rights and freedoms contained in the Human Rights Act may be subject only to such reasonable limits as are prescribed by law and can be demonstrably justified in a free and democratic society.
When deciding whether a limit is reasonable and justifiable, the following factors are relevant:
whether the limitation is in pursuit of a legitimate purpose
the relationship between the limitation and its purpose, including whether the limitation is necessary to achieve the legitimate purpose, and whether it adopts a means rationally connected to achieving that purpose
the extent of the interference with the human right
whether there are any less restrictive and reasonable available means to achieve the purpose
whether there are safeguards or controls over the means adopted to achieve the purpose
The limitations clause should prescribe that absolute rights such as freedom from torture and freedom from forced work must not be subject to any limitations.
The limitations clause should include examples that highlight the minimum core of certain ICESCR rights
12. The HRA should include a mechanism to provide notification to Parliament regarding incompatible laws
State and territory HRAs provide that if a court cannot reasonably interpret a law in a manner that is consistent with human rights through applying the interpretive clause, the court has the power to issue a ‘declaration of incompatibility’ (DOI). In light of Constitutional concerns, the Commission does not propose incorporating a formal DOI power for the courts to apply and instead suggests an alternative approach.
In the course of applying the interpretive clause in the HRA, a court may, as part of its reasoning process, indicate whether a statute can be interpreted in line with the HRA or whether the statute demonstrates a parliamentary intent to depart from Australia’s human rights obligations. If a court finds that it is not reasonably possible to interpret a statute in a way that is consistent with the HRA, this would usually be indicated in the reasons for judgment regardless of whether a ‘formal’ DOI power exists.
When a court has found a parliamentary intention to override human rights contained in the HRA, the Attorney-General should be required to trigger a process for reviewing the law in question. This will require the Attorney-General’s Department to have processes in place to monitor cases that arise under the Human Rights Act. It will not require a formal DOI to be issued by the court to Parliament.
13. The HRA should include a standalone cause of action for all rights and flexible remedies
Unlawful actions and decisions in relation to all rights in the Human Rights Act should give rise to a standalone cause of action.
The HRA should also allow for HRA rights to be raised in the context of another legal proceeding
The Commission proposes that the Human Rights Act give courts discretion over the range of remedies available, noting the range of different kinds of human rights claims and the importance of flexibility. Available remedies may include injunctions, orders requiring action, monetary damages and the setting aside of administrative decisions.
14. The HRA should allow a person to make a human rights complaint to the Commission
The Human Rights Act complaint system should mirror the discrimination law jurisdiction. This would mean that there would be requirement for complainants to first bring a complaint to the Commission, and if conciliation fails, or is inappropriate, the complainant would be terminated by the Commission and the complainant could then make an application to a court for adjudication.
The same processes that currently exist for unlawful discrimination matters would apply in the human rights context (including all the termination grounds, and representative complaints processes).
The Commission also proposes one additional termination ground. This would enable a claim to be fast tracked to the court where there is an imminent risk of irreparable harm, to circumvent the complaint process when there is urgency.
15. An HRA should apply in the context of administrative law
Australia has existing administrative law mechanisms to review the actions and decisions of public authorities. A Human Rights Act could have an impact on those mechanisms by supplementing existing bases for challenging government decisions.
If human rights (either consideration of, or substantive compliance with) were a requirement for a particular administrative decision that is reviewable by the AAT, the AAT will be able to consider those human rights issues again independently.
A person who considers 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 through the courts. Principles of administrative law, and administrative remedies should apply as usual to decisions that require adherence to the HRA.
16. There should be representative standing under the HRA
Standing under the HRA should be afforded to individuals who claim that their human rights were breached by public authorities, and organisations or entities acting in the interest of a person, group or class affected by human rights breaches (representative standing).
An additional means of enhancing access to justice is to include protections against adverse cost orders
17. The HRA should be subject to periodic reviews
The Human Rights Act should include a provision for a periodic statutory review process within a set timeframe. The Commission proposes that an initial review be undertaken t the 5-year mark, with the timeline for subsequent reviews assessed at that stage.
18. Existing Parliamentary scrutiny mechanisms should be improved alongside the introduction of an HRA
The operation and effectiveness of parliamentary scrutiny of laws for compatibility with human rights should be improved through the following measures:
Amendments to House and Senate Standing Orders similar to that in the ACT would assist the PJCHR process to ensure that legislation would not be passed prior to the Committee’s final report.
If a Bill proceeded to be enacted by exception, provision should be included for a later review of the legislation if the Bill relevantly engaged human rights.
Section 7 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) should be amended, along the lines of the power of the UK Human Rights Committee, to allow it to ‘make special reports on any human rights issues which it may think fit to bring to the notice of Parliament’ (but excluding consideration of individual cases).
The resourcing of the PJCHR should be increased to enable it to perform the wider inquiry role.
Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) should be amended to require Statements of Compatibility for all legislative instruments.
The range of matters to be addressed in a Statement of Compatibility should include consideration of consultations undertaken in accordance with the participation duty.
Statements of Compatibility should include consideration of compliance with UNDRIP.
With the introduction of a Human Rights Act, the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) could be amended, or an accompanying legislative instrument drafted to provide greater clarity on expectations in Statements of Compatibility, both in regard to rights and freedoms set out in the Human Rights Act and the remaining obligations under international treaties not expressly included in the Human Rights Act.
A public sector human rights education program be introduced, to provide training resources to public servants to understand and analyse human rights.
Consideration should be given to having designated human rights advisers in Departments.
19. The Commission should be granted additional powers to enable education measures and compliance with the HRA
In addition to complaints powers, it should have the following specific functions in relation to a HRA:
Reporting, reviews and oversight. This would include powers to conduct own-motion systemic inquiries; and to review the policies and practices of public authorities.
Annual reporting.
Extension of existing intervention powers to enable the Commission to intervene in court or tribunal proceedings involving the interpretation or application of the HRA.
Education and public awareness.
Public sector training and guidance.
The Commission must also be equipped with the necessary tools and resources to protect and promote human rights in line with the Paris Principles.