Chapter 5Arguments regarding an Australian Human Rights Act
Overview
5.1This chapter sets out the case both for and against a Human Rights Act (HRA), as set out by submitters and witnesses, and in evidence to the 2009 National Human Rights Consultation.
Public support for a Human Rights Act
5.2The submissions received to this inquiry were overwhelmingly in favour of a federal HRA. Of the 335 submissions received:
87.2 per cent (292) supported the adoption of federal protection of rights via a HRA (including those who expressed support for a constitutionally enshrined model);
3.9 per cent (13) were either opposed to a federal HRA, or opposed the AHRC model of a HRA (particularly in relation to the drafting of freedom of religion); and
8.9 per cent (30) either did not reference a HRA or did not express a position on whether a HRA should be adopted.
5.3In addition, 4 107 form letters were received, all of which were in support of a HRA.
5.4Similar extensive support for a HRA has been evident in multiple consultation processes. In 2009, the National Human Rights Consultation conducted a substantial inquiry into human rights in Australia. Of the 33 356 submissions received which considered an HRA, 29 153 (87.4 per cent) of those supported a HRA. As part of that inquiry, a telephone survey of 1 200 people was commissioned, the results of which also indicated significant support for a HRA.
5.5More recently, in its 2022 Free and Equal position paper, the Australian Human Rights Commission (AHRC) noted that recent opinion polling has consistently found large majorities in support of a federal HRA.
Constitutional or statutory protection?
5.6The AHRC HRA model proposes that a federal HRA should be an Act of Parliament that would not override other legislation, similar to the HRAs in the ACT, Victoria and Queensland and other Australian traditions of statutory protections, and inspired by HRAs overseas, predominantly in the United Kingdom (UK) and New Zealand.
5.7The AHRC model is built on the legislative dialogue model, which incorporates a formal ‘dialogue’ between the executive, legislature and judiciary, with each branch of government sharing responsibility for respecting and protecting human rights.The statutory protections in the proposed model do not allow for the invalidation of primary legislation, in contrast to constitutional bills of human rights, such as in Canada and the United States of America.
5.8Some submitters considered that a constitutional Bill of Rights was preferable to a statutory HRA, although most conceded that this was unlikely in the short term. For example, Dr Julie Debeljak, Associate Professor with the Faculty of Law at Monash University, argued that statutory HRAs 'risk falling prey to legislative inertia'. She contended:
…under statutory models, the rights-incompatible law remains valid, operative and effective, and legislative inertia may prevent or delay remedial legislation. Legislative inertia poses a greater risk in the Australian jurisdictions than the British jurisdiction because the international human rights treaties that Australia is a party to are effectively unenforceable in international law, compared to the obligation on Britain to implement decisions of the European Court of Human Rights…
5.9Associate Professor Debeljak advocated for the Canadian Charter of Rights and Freedoms 1982 (Canadian Charter) as a model for constitutional protection of human rights, arguing that it has 'mechanisms that promote and maintain parliamentary sovereignty' and 'numerous mechanisms which allow parliament to restrict and limit rights in the public interest'. However, she stated that, '[i]f an entrenched constitutional instrument is not politically viable', a statutory instrument modelled on the UK or state and territory legislation would be preferable to one modelled on the New Zealand law, which she argued fails to significantly improve on the current protections available under common law.
5.10The Castan Centre for Human Rights Law, while recognising that constitutional amendment was unlikely to be achievable, nonetheless recommended 'a subsequent independent review [to] explore the opportunity for constitutional entrenchment of rights' included in an HRA. Professor Ben Saul, Challis Chair of International Law and current United Nations (UN) special rapporteur on human rights and counter-terrorism, considered statutory protection a 'poor cousin' of constitutional entrenchment. Professor Sarah Joseph, a Professor of Human Rights Law at Griffith University, stated:
…if the opportunity arose, I would be in favour of a constitutional bill of rights, but I also know that's not on the table at the moment. It would obviously be a very difficult thing to achieve because changing the Constitution is extremely difficult…
5.11Australian Community Futures Planning argued that constitutional protection is required on the basis that the Constitution currently enables Pariament to make laws which violate rights, stating that ‘Until this constitutional permission is specifically revoked Australians cannot expect to feel secure in their human rights’.
5.12Numerous other submitters did not directly address the question of whether rights protection should be in the Constitution or in statute, but implicitly endorsed the statutory model by calling for a HRA.
The case for a Human Rights Act
5.13The committee received a range of arguments in support of a HRA. Many of these were similar to those considered in the 2009 National Human Rights Consultation, and the AHRC’s project, Free and Equal: An Australian conversation on human rights. The AHRC inquiry involved extensive consultation commencing in 2019 with the publication of an issues paper, and two subsequent discussion papers (as set out in chapter 2).
5.14The AHRC identified there to be an implementation gap between human rights standards and actual protections in the law, government policies and processes. It proposed a human rights reform agenda to modernise Australia’s human rights protection system, including the introduction of a federal HRA.In this regard, Emeritus Professor Rosalind Croucher, AHRC President, stated:
There is nothing exceptional about the idea that, when making laws or taking actions or decisions under them, parliamentarians and public officials should consider the human rights impact of their actions and should favour options that positively protect human rights or cause the least possible harm to them.
Current protections for human rights insufficient
5.15Many submitters argued that current human rights protections are piecemeal and provide inadequate protection, positing that a federal HRA could simplify and clarify human rights protections. Chapter 2 sets out Australia’s current human rights legislative framework and chapter 4 sets out some of the key human rights concerns submitters raised as existing in Australia today.
5.16The AHRC considered the varied and disconnected ways in which some human rights are protected, including in the Constitution, in common law, through parliamentary scrutiny, through anti-discrimination law and by the AHRC itself, and concluded:
The current rights framework is not easily explainable, or readily comprehensible, to all people in Australia…[It] is difficult to explain to everyday Australians, whose rights are meant to be protected.
5.17It noted that UN treaty bodies 'have repeatedly concluded that core treaties have not been adequately incorporated into Australia's legal system'.
5.18JFA Purple Orange, a disability organisation, submitted that there are too many gaps in Australia’s legislation, Constitution, and common law, as well as ‘outdated and ineffective human rights frameworks and action plans'. Similarly, Western Australia for a Human Rights Act described 'a patchwork that has extensive gaps and does not reflect the universal, inalienable and interrelated nature of human rights, and Australia's international human rights law obligations'.
5.19The NSW Young Lawyers – Human Rights Sub-Committee argued that Australia’s current framework is not accessible for ordinary people, positing that 'it is extremely difficult for most Australians to know and understand their existing human rights protections'.
5.20Submitters also raised concerns regarding the time and cost associated with the absence of a comprehensive human rights framework. For example, Voices of Influence Australia stated that the inconsistencies are confusing and ineffective, as well as being costly. The Centre for Law and Social Justice considered that the disparate approach 'sends mixed messages about [Australia's] human rights commitment to both domestic and global constituencies'.
5.21Other submitters also expressed concerns that, with dedicated human rights legislation in force only in Victoria, Queensland and the ACT, Australians in different jurisdictions may have significantly different human rights protections available to them. The Tasmanian Aboriginal Legal Service argued that a person’s access to rights protections is wholly contingent on where they live because of the lack of an overarching federal instrument. Similarly, the NSW Aboriginal Women's Advisory Network stated:
The extent to which an individual has their human rights protected should not depend on where they live in Australia. An evolution of human rights protections for every person in Australia is needed from a national level in the form of a federal Human Rights Act. A federal Act can then become a blueprint for the development of Human Rights Acts across the remainder States and Territories.
5.22Some submitters noted the existing requirement to prepare statements of compatibility for bills and certain legislative instruments, and this committee’s role in scrutinising at legislation, but argued that these features were not adequate to respect and protect human rights. A number also noted the lack of legal consequences where no statement of compatibility, or an insufficient statement of compatibility, is provided. In this regard, the AHRC Free and Equal report included extensive consideration of the role of the committee, and the effectiveness of parliamentary scrutiny of laws for compatibility with human rights. It concluded that in the absence of an HRA:
… parliamentary scrutiny measures alone have not resulted in sufficient embedding of human rights thinking by parliamentarians, nor the development of a sufficiently strong human rights culture upstream in decision making and the design of Bills and legislative instruments.
5.23The committee’s role and the adequacy of statements of compatibility are further considered in chapter 8.
COVID-19 pandemic
5.24A significant number of submitters argued that government actions taken during the COVID-19 pandemic highlighted gaps and inadequacies or, at the very least, inconsistencies in current human rights protections.
5.25The AHRC, while considering overall that 'Australia's COVID response was relatively effective in protecting rights to life and to health', submitted that there were 'key failures which resulted in human rights breaches, and insufficient consideration for certain vulnerable and marginalised groups throughout the COVID response'. It particularly highlighted travel restrictions, where 'hundreds if not thousands of Australians [had] no access to remedies when they were stranded overseas and locked out of their home country'. The Charter of Rights campaign coalition highlighted the India travel ban, which 'violated the right of people being able to return home' yet was upheld by the Federal Court.
5.26Dr Bruce Chen, Senior Lecturer in Deakin Law School, argued that COVID-19 related litigation had revealed significant gaps in Australians' legal human rights protections. He highlighted, in particular, the absence of an implied constitutional freedom of movement, limits on the common law right to bodily integrity evidenced by compulsory vaccination requirements, and a lack of common law rights to privacy or work.
5.27Some submitters argued that the pandemic exposed gaps relating to the protection of specific groups in society. For example, the Older Persons Advocacy Network (OPAN) submitted that during the COVID-19 pandemic, there was clear demonstration of ageism, stereotyping, prejudice and discrimination against older people on the basis of their age. They highlighted daily ‘public debate about “competition for ventilators” and “older people taking up beds” as thought their lives were negotiable and expendable’. OPAN also identified 'gaps in protection of older persons' right to non-discrimination as a right in itself and in the realisation of other rights including the rights to health, care and support, freedom from violence, abuse and neglect, and participation as full members of society'.
5.28Save the Children and 54 reasons noted significant impacts on children's wellbeing and right to education in the response to the COVID-19 pandemic, and considered that ‘requirements to take into account children’s rights would have enabled a much better informed, more comprehensive and more effective policy response’. The Centre for Law and Social Justice expressed concern that ‘the sudden shift to remote learning…exposed the unequal resources available to families and schools within Australia’s education system’, which ‘highlights the limitations’ of a federal decision-making framework that fails to engage with fundamental human rights’.
5.29A number of witnesses and submitters commented on the impact of existing state and territory HRAs during the COVID-19 pandemic. Ashley, Francina, Leonard & Associates, a law firm in Sydney, submitted that there were unprecedented impacts on fundamental human rights during the pandemic and noted the quasi-legislation enacted daily by state and territory governments’ executive arm. They argued that there were very few direct legal human rights protections in Australia which became evident during the COVID-19 pandemic. Associate Professor Mark Fowler, a legal academic, argued that the Charter made no difference to affecting policy decisions as compared in the positions taken by the NSW and Victorian supreme courts.
In terms of COVID-19, if we compare the decision of the New South Wales Supreme Court in Kassam v Hazzard [challenging COVID-19 restrictions and vaccination mandates], with that of the Victorian Supreme Court in Loielo v Giles [challenging curfews] we can see that, in the Victorian case where there was a charter and in the New South Wales case where there wasn't, there was no material difference. In both cases the court said that this is a matter of policy; this is a concern for the parliament. From a separation of powers perspective, we might say that's a good outcome. But it does raise the question as to whether or not there was any material difference.
5.30However, the Queensland Supreme Court recently held that a failure by decision-makers to give proper consideration to human rights before directing workers to receive COVID-19 vaccinations and boosters was a breach of their obligations under the Queensland HRA.
5.31The respective Human Rights Commissions in jurisdictions with HRAs argued that they had made a positive impact. The Victorian Equal Opportunity & Human Rights Commission described the Charter as 'a vital mechanism to frame concerns expressed by organisations and community members that public health measures unfairly limited their human rights'. It highlighted instances of direct Charter impact:
The Charter required that public authorities considered and acted in accordance with human rights in decisions made by them to introduce and update public health measures, as well as in the implementation of public health orders. The Charter remained relevant to decisions by the Chief Health Officer about whether limitations on rights were necessary and proportionate when making public health orders. Furthermore, in 2021 the government introduced a new legal framework to manage pandemics – setting out how the Charter applies to the making of pandemic orders, with new checks and balances designed to further embed human rights considerations into government responses.
5.32The Hon Pamela Tate AM KC, Adjunct Professor of Law at Monash University and formerly a judge of the Supreme Court of Victoria, stated that:
…at least people…were able to come to a court and have a court carefully dissect whether the particular restrictions that had been placed on their freedom, including a curfew, were a defensible interference with human rights, given the importance of the objectives of the curfew, or whether, in fact, they were a breach of an obligation of human rights…There was a provision of an analytical framework which enabled people who had a grievance to have that grievance intelligently considered in a formal and analytical way.
5.33The Queensland Human Rights Commission submitted:
Many public entities indicated a willingness to engage in human rights dialogue when issues were raised, and to consider less restrictive alternatives to rights' limitations. Advocates also reported positive outcomes from raising human rights arguments in their dealings with public entities.
5.34The ACT Human Rights Commission reported that its 'oversight and advocacy' under the ACT HRA 'contributed to the Government building in more balanced restrictions on human rights that were targeted, necessary and proportionate'.
Impact of a Human Rights Act
5.35Submitters and witnesses in support of a HRA argued that it could address the current patchwork approach to protecting human rights and provide an effective enforcement mechanism. Numerous submitters were of the view that a HRA would bolster and give expression to basic Australian values such as equality, diversity, respect and inclusion.
5.36The Human Rights Law Centre argued that a HRA would improve the processes for developing laws by embedding human rights ‘into the DNA’ of government and politics and increase public awareness and discussion of aspects of human rights.
5.37Numerous submitters provided case studies to illustrate how a HRA has made positive differences to the protection of human rights in Victoria, Queensland and the ACT. For example, the Queensland Human Rights Commission submitted that even in the early stages of the implementation of the Human Rights Act 2019 (Qld) (Queensland HRA), it had observed a ‘growing culture of human rights awareness in the government sector and wider community.’ The ACT Human Rights Commission similarly observed that the ‘most significant impact of the Human Rights Act 2004 (ACT) (ACT HRA) has been its influence on the culture and development of legislation in executive and legislative processes.’ They also submitted that the ACT HRA has ‘benefited from being a non-entrenched law, allowing both incremental and substantial changes to be introduced over the decades since its introduction.’
5.38The AHRC submitted that the 2015 review of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) found that it had helped to build a greater consideration of, and adherence to, human rights principles by the public sector, and concluded that the Charter had helped to promote and protect human rights in Victoria.It highlighted research by the Human Rights Law Centre on the first five years of the Charter’s operation which found that ‘the Charter played a crucial preventative role in stopping human rights abuses (and the associated social and economic costs) before they occur).’ Further evidence regarding the impact of these HRAs on the culture of the public sector is detailed in chapter 8.
5.39The Victorian Federation of Community Legal Centres submitted examples of positive impacts from the Charter related to coronial inquests into deaths in custody, and preventing homelessness and eviction from social housing. For example, it cited a case in which a student with a learning disability was threatened with expulsion from their school due to behavioural issues. It stated that the child’s advocate raised the child’s human rights with both their school and the Department of Education, and as a result the child was provided with additional supports which assisted in managing their behavioural issues, and enabled the child to remain at school.
5.40A number of submitters highlighted a series of case studies collated by the Charter of Rights campaign, which demonstrate how HRAs have been beneficial. This campaign analysed 101 cases to demonstrate the practical effect of state and territory HRAs. In one example, an older person made a human rights complaint regarding the replacement of escalators at a train station with steep, inaccessible stairs. Following the complaint, a conciliation process was commenced, which led to an agreement that escalators would be installed as part of the train station upgrade.
5.41The Charter of Rights campaign coalition argued that:
By ensuring human rights are at the heart of our laws, and that people can take action when their rights are violated, a Charter makes a huge difference to the lives of people across our community. Charters are of particular importance for parts of the community marginalised by a combination of neglect with respect to critical services, or cultural attitudes that lead to discrimination, and as a result are prevented from fully enjoying their rights. People need enforceable human rights to help redress the wrongs they face, but more importantly improve government laws and decisions so that they properly consider human rights at the outset.
5.42The Human Rights Law Centre argued that these case studies highlighted the ways in which HRAs have helped ‘governments make better decisions when faced with tough choices about how to protect life and health without unduly restricting other rights’. In particular, it posited that these cases exemplified how HRAs had improved people's lives, including by: helping governments identify and address human rights issues at an early stage of policy development; ensuring transparency around how governments and parliaments have considered people’s human rights; promoting better understanding of human rights and preventing human rights issues from escalating; and providing a way for people to resolve human rights issues by raising them with government and other agencies, or through complaint mechanisms and in the court.
5.43The NSW Young Lawyers – Human Rights Sub-committee submitted that the government should build on the examples highlighted in this campaign for the development and implementation of a federal HRA.
5.44Maurice Blackburn considered that the establishment of a HRA alongside an appropriate cause of action would have a positive impact on the experiences of their clients in accessing justice, including relating to the protection of cultural heritage, the refugee experience and the right to the protection of personal data. For example, it submitted that if ‘cultural rights’ were embedded in a federal HRA, traditional owners and decision makers would understand that there would be a legal requirement to ensure that in any decision made, the right of Aboriginal and Torres Strait Islander people to enjoy, control, protect and develop their identity and cultural heritage could not be denied. It argued that the existence of such a right, that Aboriginal and Torres Strait Islander people could call on and that decision makers would be obliged to comply with, would elevate matters for clients to a level of legal significance more likely to engender meaningful engagement.
5.45Melbourne University’s Indigenous Law and Justice Hub submitted that charters have been a powerful tool in promoting state accountability and improving individuals’ circumstances, in the specific instances of the abuse of Aboriginal and Torres Strait Islander peoples’ human rights.For example, it stated that the Charter has been used to protect children being held in an adult prison pursuant to a published ministerial decision, and that litigation in the Supreme Court of Victoria found that the ‘Minister failed to consider the children’s rights under the charter, including their right to protection of the child’s best interest, and humane treatment when deprived of liberty’. It stated that, pursuant to litigation brought under the Charter, the court ordered the minister to stop detaining children in the adult prison unit and transfer all children back to the Youth Justice Centres’.
5.46Emeritus Professor Rosalind Croucher of the AHRC also argued that a HRA 'actually ends up in a saving to the community and an enhancement of human rights', avoiding 'enormous expenses in royal commissions'. The AHRC submitted:
Dealing with human rights breaches after the fact can give rise to vast consequences including unexpected costs from failing to consider human rights early. Robodebt led to a resulting class action, and prompted its own Royal Commission. Dealing with human rights issues early has obvious economic benefits.
By considering the human rights impacts of a proposed law or policy upfront, there is also a reduced likelihood that decisions will breach human rights and therefore the risk and costs of court action are avoided.
Protecting marginalised and disadvantaged groups
5.47Several submitters argued that Australia’s existing human rights mechanisms provide insufficient protection especially to marginalised and disadvantaged groups, who are particularly vulnerable to human rights abuses.
5.48The AHRC highlighted that marginalised and disadvantaged groups were particularly affected by human rights problems, including subject to unfair administrative decision making by public bodies. The NSW Council for Civil Liberties, likewise, posited that in Australia's current patchwork system ‘many who suffer human rights violations have no tangible means to seek redress. This is especially detrimental to minorities and people experiencing vulnerability, who routinely experience discrimination, disadvantage and marginalisation'. Professor Sarah Joesph stated:
There is generally no requirement, outside the ACT, Victoria, and Queensland for public officials to act in accordance with human rights in making decisions which affect the lives of individuals, substantively or procedurally. Individuals, particularly the vulnerable, such as the elderly, children, the homeless, prisoners or other detainees, or the mentally ill, are susceptible to being treated as problems to be dealt with rather than persons with human rights that deserve respect when decisions are made that affect their lives (eg their health, their houses, or their liberty).
5.49Similar concerns were expressed by witnesses at committee hearings, with numerous witnesses highlighting that marginalised groups (including Aboriginal and Torres Strait Islander people, children, people with disabilities, migrants and ethnic minorities, older persons and asylum seekers) face frequent disadvantages and discrimination, are the least able to defend themselves, and are frequently subject to rights violations. These human rights concerns are further discussed in chapter 4.
5.50The Australian Centre for Disability Law argued that this lack of protection is related to the fact that many of the rights within the Universal Declaration of Human Rights and the Convention on the Rights of Persons with Disability are yet to be fully realised within Australian domestic legislation:
As we have seen through our work in the disability discrimination sphere, Australia's current legislative frameworks and policies do not take a proactive approach to human rights. Often our clients, as people with disability, experience multiple barriers to accessing their inherent human rights.
5.51National Legal Aid identified the social security system as one that marginalised and disadvantaged people are more likely to encounter, and be required to engage with:
While Australia has a comprehensive social security system, there are regularly discussions around the adequacy and eligibility of such payments, and these are matters that fall within the ambit of the right to social security at the international level…The eligibility criteria for [disability support pension], new migrants and asylum seekers in accessing social security are examples that clearly demonstrate why social security is a human rights issue, and how a Human Rights Act could lead to a more dignified social security system.
5.52The Progressive Law Network submitted that those in most need of human rights protections are also most vulnerable to homelessness:
[A] Human Rights Act would not only directly address housing insecurity through a right to adequate housing, it would also uphold other rights of marginalised groups – ultimately, preventing the circumstances which drive these cohorts into homelessness in the first place…A Human Rights Act protecting the right to adequate housing can also be used to guide policy-making at all levels of government.
5.53The AHRC expressed a similar view, arguing that the consideration of human rights can lead to just outcomes:
Human rights considerations in government decision-making can mean the difference between being homeless and being housed; being destitute and being able to afford basic necessities; being locked up and being free; being shut away from society and being provided with supports to engage in life; being removed from home and living with family.
5.54The Older Persons Advocacy Network posited that a HRA would support the human rights of diverse, marginalised and disadvantaged groups, as irrespective of their identity, if their rights were breached or disregarded, there would be pathways to enable them to seek and receive justice.
Robodebt
5.55Numerous submitters highlighted the Robodebt scheme as one example of a significant breach of human rights that occurred as a result of government policy and practice.
5.56The Robodebt scheme was an automated debt assessment and recovery scheme implemented from 2017 to late 2019 by the Department of Human Services to recover social security payments. It resulted in thousands of welfare recipients being sent inaccurate Centrelink debt notices. The AHRC stated that the scheme caused significant anguish and stress for many vulnerable and disadvantaged welfare recipients, and noted that it resulted in a class action which led to a $1.8 billion settlement.
5.57A Royal Commission was established in 2022 to inquire into the establishment, design and implementation of the scheme. The Royal Commission issued an extensive final report and made damning findings, concluding that the scheme was unlawful, and describing the scheme as:
… a crude and cruel mechanism, neither fair nor legal, and it made many people feel like criminals. In essence, people were traumatised on the off-chance they might owe money. It was a costly failure of public administration, in both human and economic terms.
5.58The Royal Commission criticised the implementation of the policy and the scheme, stating:
It is remarkable how little interest there seems to have been in ensuring the Scheme’s legality, how rushed its implementation was, how little thought was given to how it would affect welfare recipients and the lengths to which public servants were prepared to go to oblige ministers on a quest for savings.
5.59The Royal Commission made numerous observations regarding the fraught environment in which the scheme developed, which was characterised by a ‘powerful drive for savings, strongly expressed ministerial policy positions, cultural conflicts on an inter and intra-departmental level and intense pressure experienced by public servants, including those in positions of seniority.’ Further, it was particularly critical of the scheme’s unfairness, the failure to consult peak bodies, and the impact the scheme had on vulnerable people, noting that the averaging scheme was essentially unfair:
It subverted the rationale on which income support was provided in the first place: as a safety net to ensure that people received help when they most needed it.
There were other fundamental unfairnesses in the program. No regard was had to the sheer unreasonableness of placing the onus on recipients to attempt to establish what their earnings were for periods going back as long as five years when they had been given no reason to expect anything of the kind at the time they declared their income and received their benefits….
The system was set up with the intention of forcing recipients to respond online to the PAYG data and to minimise contact with DHS officers, in the interests of economy; this was vital to the anticipated savings. (Indeed, having had the benefit of “behavioural insights,” DHS employees setting up the system made a conscious decision not to include any telephone number for the Customer Compliance division in the letters sent to recipients, so as to force them to respond online, while compliance officers were told to direct recipients online.) No outside parties with an interest in welfare were consulted in order to understand how the Scheme might actually affect people. There appears to have been an obliviousness to, or worse a callous disregard, of the fact that many welfare recipients had neither the means nor the ability to negotiate an online system. The effect on a largely disadvantaged, vulnerable population of suddenly making demands on them for payment of debts, often in the thousands of dollars, seems not to have been the subject of any behavioural insight at all.
5.60Economic Justice Australia, the peak organisation for community legal centres providing specialist advice on social security, considered that Robodebt 'shows that our current legal frameworks and "business as usual" approaches to public administration law are insufficient to prevent systemic human rights abuses'. It stated that evidence to the Royal Commission highlighted the profound disregard that particular senior public servants and ministers had toward the application of the rule of law, human rights standards, and the humanity of the vulnerable people affected, against the mounting evidence of the inaccuracy of the debt collection system. In this regard, it argued that the Administrative Appeals Tribunal was not effective in providing adequate review in the context of the ineffectiveness of existing safeguards.
5.61The AHRC identified automated decision-making (such as that involved in the Robodebt scheme) as a human rights concern, and noted particularly that algorithmic bias can lead to unlawful discrimination. It argued that a HRA with a positive duty on public authorities to comply with human rights 'would encourage a level of oversight that could reduce the likelihood of individual and systemic failures of the scope that occurred during the Robodebt scheme'. It also argued that a participation duty, requiring consultation with certain affected groups, would go some way to supporting recommendations from the Royal Commission's report. Numerous other submitters argued that the Robodebt scheme could have been avoided with a HRA. For example, MsElizabeth Dangerfield submitted that:
If politicians had just taken time to speak to, and actually listen to a whole range of people receiving welfare payments and the people who worked in Centrelink they may have developed a more sophisticated understanding of the challenges such people face in their lives and Robodebt may never have happened.
5.62Several submitters argued that a HRA could have reduced the likelihood of the Robodebt scheme occurring and provided clearer recourse for victims in the event it did occur. For example, National Legal Aid considered that if government agencies had been required to consider and justify any restriction on 'rights around not depriving people of property unlawfully, as well as fair and public hearing rights' and 'rights around privacy and reputation', the unlawfulness of the scheme could have been identified earlier. Australian Lawyers for Human Rights submitted that:
If a federal Human Rights Act was in force at the time of the Robodebt scheme, it would have required relevant decision-makers to give proper consideration to the scheme's human rights impacts and implement necessary safe-guards to limit any impacts on those rights, prior to implementing the scheme. It would have also provided avenues for remedy and a language in which to contextualise the harm suffered.
5.63The Human Rights Law Centre agreed that 'demonstrably bad outcomes' like those arising from the Robodebt scheme 'can be challenged far more quickly and effectively' with a HRA in place. Similarly, Economic Justice Australia submitted that the social security context highlighted a need for an HRA, which would:
…enable a rights-based approach to social security law, policy development and administration, with social security recipients treated as rights-holders having certain legal entitlements. It would preclude discriminatory programs and arbitrary eligibility exclusions; ensure accessibility measures are built into the system; provide for procedurally fair, transparent and accountable decisions; enable decisions that do not meet human rights standards to be challenged and redressed; require justification for any limitations on the right – including steps to reduce access or payment rates; and set the foundations for monitoring and accountability measures to assess progressive realisation over time.
5.64The Human Rights Law Centre commented that royal commissions invariably detail experiences of abuse, neglect and harm, which collectively amount to systemic injustice, and are accompanied by significant media coverage, political condemnation and promises to do better. They emphasised that it should not be for people with lived experiences of institutional harm and abuse to campaign over decades for governments to implement recommendations to prevent further harm and abuse to others. They stated that a HRA should act as a vital safeguard against abuses taking place at all, build a public culture of respect for rights, and provide clear frameworks to hold governments and individuals accountable.
Culture of respect for human rights
5.65Many submitters identified the passage of human rights legislation as a necessary first step in creating a human rights culture in Australia to inculcate new respect for promoting and upholding human rights. Many argued that Australians want to live in a society that cares for, and respects, the fundamental human rights of all individuals living in society, through everyday actions and decisions, and working together for a more sustainable, just and prosperous society.
5.66Australian Lawyers for Human Rights submitted that:
It is only through the implementation of a federal human rights regime that we can properly create a culture of respect for human rights in Australia. Only when we foster a culture of respect for human rights in the work of government will we be able to meaningfully address harmful and discriminatory practices.
5.67Some submitters stated that the lack of a comprehensive and definitive statement of the human rights which apply within Australia is one of the most significant deficiencies which may weaken our current human rights framework. Submitters argued that a federal HRA would rectify this by providing a coherent set of protections and clear statements to enhance public understanding of the duties we are owed and owe each other, and can act as a moral force of the human rights that are recognised throughout Australia. Multicultural Australia submitted that the passage of a HRA would be an important opportunity to drive commitment for education, training and information dissemination to help with a cultural transformation. The Human Rights Law Centre similarly submitted:
A human rights culture is essential to creating a society grounded in dignity and respect, a recognition of a common humanity and where substantive equality is valued both for our diverse communities now and for future generations.
5.68Many submitters stated that human rights education is critical to building awareness and understanding of human rights which is essential to the reduction of human rights violations and building free, just and peaceful societies, which would be vital to support the implementation of a HRA. The Indigenous Law and Justice Hub further submitted that:
Broad education on Indigenous rights, supported by a Charter, has an important and potentially a transformative role in supporting better experiences for Aboriginal and Torres Strait Islander people.
5.69Chapter 8 sets out in greater detail evidence received in relation to building a human rights culture and the need for human rights education.
Australia’s global standing
5.70Many submitters highlighted that Australia remains the only liberal democracy that does not have a bill of rights or human rights charter of some kind, giving effect to a full range of judicially enforceable human rights. Professor Patrick Keyzer, a constitutional and human rights lawyer, submitted that, as a consequence, while Australia has signed international human rights treaties, Australians cannot avail themselves of these rights.
5.71As the 2009 National Human Rights Consultation Report noted, by not having a HRA this could leave Australia isolated from legal developments in other corresponding jurisdictions. It highlighted that Australian common law has developed with the ‘assistance of large bodies of cases’ in comparable common law countries, namely the UK, Canada and New Zealand, and each has a form of a HRA. It stated that the Australian judiciary will not be able to play a part in the important debates and developments associated with human rights that are taking place in other international jurisdictions.
5.72A number of submitters argued that enacting a HRA would greatly strengthen Australia’s international standing and begin to address the significant damage human rights breaches from consecutive governments have caused, including the rights of First Nations peoples, refugees, people living with mental distress, people with disabilities, children, women and the right to a healthy environment.
The case against a Human Rights Act
5.73Only four submissions to this inquiry argued against a federal HRA. This section discusses those submissions, and notes similar arguments made at the time of the extensive 2009 National Human Rights Consultation.
Human rights already sufficiently protected
5.74In 2009, arguments against the establishment of a HRA were set out in a publication by the Menzies Research Centre entitled Don’t Leave Us with the Bill: The Case Against an Australian Bill of Rights. In this publication, the Hon John Howard AC argued that Australia has a ‘well developed domestic sense of human rights’ such that the current human rights framework was adequate, and posited that a HRA would ‘not enhance freedom or expand liberty’. He described that the argument to bring Australia in line with other liberal democracies was ‘quite humiliating’ because ‘left to our own devices, the natural instinct for freedom that exists in Australia would not assert itself and that somehow we need the discipline of adherence to international treaties and conventions to stay on the democratic straight and narrow’.The Hon Julian Leeser MP, similarly, stated:
While Australians are right to examine the rights protections we have in this country it would be wrong to abandon the system we have out of a desire to keep up with developments in other countries which have different institutions, different rights protections, different national imperatives and different histories to Australia.
5.75He argued that most examples of ‘rights abuses’ amount to failures in bureaucratic and political leadership which can be corrected in other ways rather than the requirement of a HRA. The Hon George Brandis KC argued that there is no case for the enactment of a HRA in the absence of any demonstrated need for one, a fact which demonstrates the strength and protection of rights and liberties, not weaknesses. Professor Helen Irving (a constitutional law academic) stated that much of what was included in the state and territory HRAs (at 2009) already existed at the Commonwealth level, in legislation and in parliamentary bodies and practices.
5.76In a joint submission to this inquiry, Professor Nicholas Aroney, Professor Richard Ekins KC (Hon) and Dr Benjamin Saunders, constitutional law academics, argued that Australia has high levels of personal freedom, political rights, civil liberties and the rule of law, irrespective of there not being a bill of rights. They argued that policies are subjected to parliamentary scrutiny and media critique, and asserted that only occasionally have legislation and policies been adopted that were considered to interfere with human rights.
Does not prevent human rights abuses
5.77One argument against a HRA is that, in countries where a HRA is already present, it has not addressed human rights concerns. In the 2009 publication by the Menzies Research Centre, contributors highlighted countries that have human rights abuses often also have a bill of rights. For example, Cardinal George Pell AC noted that Zimbabwe has a constitutional bill of rights protecting numerous rights including personal liberty, deprivation of poverty, but nevertheless it has human rights abuses. In this publication, Mr Alan Anderson, a lawyer, similarly stated:
The conceit that embodying a set of vague aspirations in a document and declaring it enforceable can alter underlying physical and cultural realities is shared only by the cappuccino class. Does the quality of rights protections in Canada and New Zealand bear more resemblance to that in Australia, which lacks a charter of rights, or Zimbabwe?
5.78In their joint submission, Professors Aroney and Ekins KC and Dr Saunders submitted that when the UK Human Rights Act came into force in October 2000, it was not a watershed moment for the country where it suddenly decided to respect rights, stating that the UK did not fail to protect rights even without the Act. They submitted that a federal HRA would not produce a dialogue between the three branches of government, providing an analysis of case law and subsequent political debate in jurisdictions with a federal HRA suggests that these HRAs have not meaningfully contributed to dialogue or discussion. They contested that this was because ‘agreement on an abstract set of words contained in a statutory charter or bill of rights does nothing to resolve debate’ and theability and willingness of parties to engage in genuine deliberation over contested political matters is dependent on factors that have nothing to do with the existence of a HRA.
5.79Mr Daniel Simon, providing evidence on behalf of the Human Rights Law Alliance and Australian Christian Lobby also argued that a HRA would not result in better laws, stating that a federal HRA cannot claim to provide the effective protections as required in the International Convention on Civil and Political Rights.
Too much power to unelected judges
5.80Some of the submitters against a HRA argued that a HRA would weaken Australia’s system of parliamentary sovereignty by requiring the judiciary, rather than the legislature, to make value-based judgments to set limits on fundamental rights, and so would distort judicial decision-making.
Human rights are too broad and vague
5.81Professors Aroney and Ekins KC and Dr Saunders argued that human rights standards are broad and vague, meaning that a federal HRA would require courts to make decisions using open-ended moral and political reasoning, and engage in a balancing exercise of different rights.They submitted that this may transform the judiciary into a law-making institution, rather than law applying, because the judiciary would take an activist approach in interpreting a HRA. They also submitted that human rights laws would require judges to apply their own value judgments to the cases at hand, and that it is ’better that these value judgments are made in a democratically accountable way in the Parliament’.
5.82Mr Bernard Warnick, a former judge of the Family Court, submitted that human rights contain a semantic challenge because there is a failure of meaning, given the ambiguity and vagueness of each rights which are posited as being fundamental, innate and inalienable. He goes on to conclude:
By wrongly locating the source of human rights in ideology, rather than in the democratic legislation of a sovereign state, the paper and the suggested Preamble open the way to misunderstandings of the nature of human rights. The discommoded citizen is moved to argue, “How can you take away my birth right, my inalienable and immutable right?”
Rights legislated by a democratic government need no further foundation – no indefinable sacredness of human life or inherent dignity of humanity. They need merely be stated.
Ideological statements in Human Rights legislation carry ramifications beyond the meaning of the legislation itself. They generate misunderstanding about our nature. As humanity enters the 21st century, faced with issues of sustainability and scientific developments that may enable us to alter our nature, a sound understanding of what we are has never been more significant.
5.83Associate Professor Mark Fowler raised concerns that rights contained in a HRA are expressed in general and abstract terms, and that judges would be required to interpret against these imprecise principles to determine the content of the law. In this regard, Mr Chris Merritt of the Rule of Law Institute of Australia argued that the ’legislature is the branch of government that is best equipped to gauge community standards and make value judgements on behalf of the nation as a whole’.
Erosion of Parliamentary sovereignty
5.84Some submitters argued that Parliament is the place to make decisions involving political debate, such as the limits on the freedom to manifest religious beliefs and freedom of speech. Professors Aroney and Ekins and Dr Saunders argued that a HRA would require judges to participate in public debates, leading to the politicisation of the judiciary and undermining public confidence in the court’s independence to decide cases in a politically impartial manner. They argued that the requirement for courts to interpret legislation consistently with a HRA could alter the relationship between the legislature and judiciary, including concern that declarations of incompatibility would place political pressure on the government and legislature to change the law. Associate Professor Mark Fowler stated:
Because human rights are politically contested, canvassing matters such as the entitlements of suspected terrorists, restrictions in a pandemic, the limits of surveillance or the expression of religious views in public life, judges can then be seen to be taking sides in a particular political debate, undermining confidence in the impartiality of the judiciary and its independence from executive government. Such matters should be resolved through vigorous, democratically accountable parliamentary debate, not unelected and unaccountable judges.
5.85However, it is noted that declarations of incompatibility are not a feature of the model proposed by the AHRC, see chapter 7. Further, as noted by the Queensland Council of Civil Liberties:
…statutory human rights protections such as the HRA may be amended, leaving the ultimate power with the Parliament, whereas constitutionally entrenched rights are much more permanent and give courts significantly more power.
Parliament can best protect rights
5.86Some submitters argued that the Parliament has access to sufficient mechanisms to inform itself of human rights concerns, including via Senate committees and committee inquiries. Professors Aroney and Ekins KC and Dr Saunders argued that parliamentary committees have the qualities to undertake human rights assessments to test the appropriateness and proportionality of laws that are better suited than the courts. They submitted that parliamentary committees may: initiate own motion inquiries; may have regard to many factors and considerations; publicise findings and stimulate public debate by disseminating findings freely. They argued that parliamentary committees demonstrate independence of judgment and willingness to scrutinise government policies, actions and proposed legislation that is not generally shared by the courts, and submitted that a democratically elected Senate secures the committee system and facilitates better quality debate and deliberation within Parliament and the broader community.
5.87Mr Merritt, Rule of Law Institute of Australia, highlighted the role the media plays in oversight, arguing that it can also inform parliamentary decisions. Associate Professor Mark Fowler submitted that this committee is a suitably placed forum, as the pre-eminent legislative committee, to which the Parliament looks for guidance regarding Australia’s international human rights obligations.
5.88However, a number of submitters argued there are inherent constraints to the impact of the work of this committee, particularly in the context of rushed legislation and reporting where a bill has already passed, with ‘limited evidence that it has helped prevent the most serious intrusions upon rights’, as well as limited powers to conduct own-motion investigations. See chapter 8 for a discussion of the role of this committee.
Opens the floodgates and leads to a compensation culture
5.89In the 2009 publication by the Menzies Research Centre, Mr Alan Anderson argued that the introduction of a federal HRA could result in excessive litigation because individuals and public interest groups would seek to challenge various forms of legislation and policy, creating a litigation-centric culture, and ‘lawyers’ picnic’. He argued that the those people whose rights are infringed are likely to be already disadvantaged and so unable to afford litigation. Further, he argued that ‘the additional ambiguity created by a charter would mean that cases which are today unarguable would tomorrow become contentious’.
5.90Such concerns were also raised in the 2009 National Human Rights Consultation. The report noted arguments that additional litigation could be generated by a desire to clarify meaning and content of the general rights outlined in the HRA or for a strategic purpose containing political motives. Further, that increased litigation could lead to increased government costs in responding and addressing the various challenges, in addition to the increased costs for the courts in managing cases, and its impact on access to justice for other litigants seeking vindication of their rights. It also noted arguments that the economic costs associated with introducing a federal HRA would outweigh any potential benefits.
5.91However, Professor Sarah Joseph submitted that concerns expressed in 2009 have not manifested:
The experience thus far from the ACT, Queensland and Victoria indicates that the impact of their respective charters on overall litigation has been minimal. None of the respective governments have expressed concerns over the impact of human rights legislation on caseloads. Indeed, human rights litigation in the ACT has dropped since 2009, when it adopted a free-standing cause of action.
5.92The Law Council of Australia has similarly observed that:
The experience of the ACT, Victoria and Queensland has shown that Australian courts are perfectly capable of implementing statutory rights instruments in a manner that respects the sovereignty of Parliament, and none of those jurisdictions has seen a ‘flood’ of human rights litigation, as was feared by some.
5.93Numerous submitters and witnesses also highlighted that the concerns regarding ‘floodgates’ have not been supported by evidence from other Australian or comparable jurisdictions, such as the UK or New Zealand.
Protects criminals not ordinary people
5.94In her submission to this inquiry, Professor Sarah Joseph noted, and rebutted, the argument that a bill of rights would be ‘a villain’s charter’. That is, that a HRA would be abused by criminals. She argued that the use of human rights arguments by suspected criminals is most likely to arise in the context of criminal procedure laws, and so would engage procedural fairness rights which the judiciary already deals with regularly. She also stated that human rights are premised on the idea that human beings have these rights ‘simply by virtue of being human’, meaning that criminals have the same human rights as others, and the same limits to their human rights as others. In this regard, she stated that ‘[w]e are all more vulnerable to rights abuses if a lesser standard of human rights protection is tolerated with regard to any person or group’.
5.95Professor Joseph also considered the contention that there are ‘no rights without responsibilities’, relating to the breadth of rights owed to people. She noted that most rights may be permissibly limited, but argued that this does not imply that a person who has failed to fulfil their ‘responsibilities’ does not mean they should not have rights:
Though the language of “responsibilities” is not used, one’s rights are largely limited by one’s responsibilities to others and to society. That is, the qualifications to rights essentially take account of the legitimate responsibilities that may be imposed on a person. I disagree, however, with any premise that fulfilment of one’s responsibilities is a precondition to recognition of one’s rights.