Chapter 6What rights to protect?
6.1This chapter outlines the various views of submitters and witnesses in relation to the rights that should be protected in a federal Human Rights Act (HRA).
6.2The Australian Human Rights Commission’s (AHRC) recommended HRA model incorporates human rights derived from the core international treaties to which Australia is party, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The AHRC model also incorporates overarching principles derived from those international treaties and declarations that relate to particular groups, such as the Convention on the Rights of Persons with Disabilities and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The UNDRIP provides context and clarification as to how human rights standards under international law, including under the ICCPR and the ICESCR, apply to the particular situation of Indigenous peoples. In addition, the AHRC model seeks to codify a number of common law rights and freedoms, and is intended to complement protections against discrimination.
6.3The AHRC model recommends including the following rights in a HRA:
right to equality and non-discrimination;
right to life;
protection from torture and cruel, inhuman or degrading treatment;
rights of the child;
right to protection of the family;
right to privacy;
rights to freedom of movement; thought, conscience, religion and belief; assembly; association; and expression;
right to take part in public life;
right to liberty and security of person;
right to humane treatment when deprived of liberty;
criminal process rights, including as relates to children;
right to a fair hearing;
right to compensation for wrongful conviction;
right not to be tried or punished more than once;
prohibition against retrospective criminal laws;
freedom from slavery and forced work;
cultural rights, both generally and as they relate to First Nations peoples;
right to education;
right to health;
right to an adequate standard of living;
right to a healthy environment;
rights to work and just and favourable conditions of work; and
right to social security.
6.4Submitters and witnesses generally agreed with the premise that a federal HRA should protect those rights that are included in the core international human rights treaties to which Australia is party. The Law Council of Australia, for instance, stated that the starting point for a HRA should be the international formulation of those rights included in the ICCPR, ICESCR and other core international human rights treaties, adapted as appropriate to the Australian context. It submitted that ‘any right protected by the principal UN human rights treaties to which Australia is party should be considered for inclusion’, subject to a number of factors, including constitutional support, drafting which facilitates justiciability, and the responsibilities of Commonwealth public authorities/entities. The Law Council also noted:
It must, of course, be kept in mind that there is a division of responsibilities between the Commonwealth and state/territory governments, and the rights which are appropriate for inclusion in a federal Human Rights Act must reflect that division. For example, the right to education may differ in its content in the federal context, whereas the right to social security might be more appropriate for inclusion in a federal Act than in any of the state or territory Acts.
6.5Dr Julie Debeljak, Associate Professor at Law at Monash University, similarly submitted that ‘Australia should fully and comprehensively protect and promote civil, political, economic, social and cultural rights, as per its international le gal obligations’, including under the ICCPR and ICESCR.
6.6There was wide support among submitters and witnesses for the inclusion of both civil and political rights and economic, social and cultural rights, although there were a range of views with respect to the extent of protection that should be afforded to the latter. In addition, some submitters and witnesses advocated for the inclusion of new rights, such as the right to a healthy environment, as well as additional rights specific to vulnerable groups, such as the rights of Aboriginal and Torres Strait Islander people and victim-survivors of crime. These various views are canvassed below.
6.7The following discussion of which rights to protect draws a distinction between civil and political rights, and economic, social and cultural rights. This distinction reflects the evidence received. A number of submitters and witnesses, however, have highlighted the artificial nature of this distinction and emphasised the indivisibility of human rights. The Castan Centre for Human Rights Law, for instance, submitted:
…such a distinction between civil and political rights and economic, social and cultural rights does not stand up to closer scrutiny. The distinction is both unhelpful and erroneous, as human rights under international law are ‘independent, indivisible and interrelated’. Both categories of rights involve obligations to respect, protect and fulfil.
6.8The AHRC’s Free and Equal 2022 position paper also acknowledged the independent, indivisible and interrelated nature of human rights, stating:
The ‘indivisibility’ of rights means that there is no hierarchy of human rights, as all are important. The fulfilment of one right is often dependent on the fulfilment of other rights (they are ‘interrelated’ and ‘interdependent’). In this regard, many civil and political rights cannot be realised unless economic, social and cultural rights are also secured, and vice versa.
6.9Given the submissions stressed that a federal HRA should reflect Australia’s international human rights obligations, it is important to consider the status of reservations and interpretive declarations made by Australia in respect of certain rights in the international treaties to which it is a party. Australia’s international obligations are limited by its reservations. A reservation is a statement ‘made by a State by which it purports to exclude or alter the legal effect of certain provisions of a treaty in their application to that State’. For example, Australia has entered reservations with respect to articles 10, 14, and 20 of the ICCPR. Australia has also made interpretive declarations with respect to certain rights, such as the rights to legal capacity, respect for physical and mental integrity and liberty of movement under the Convention on the Rights of Persons with Disabilities. An interpretive declaration is a declaration made by a State ‘about its understanding of a matter contained in, or the interpretation of, a particular provision in a treaty’. While reservations render the reserved provisions of the treaty non-binding and thus ‘act partially to reduce the effect of a certain guarantee’, interpretive declarations ‘essentially give notice of a State’s interpretation of the treaty’. Interpretive declarations ‘do not purport to exclude or modify the legal effects of a treaty’, but they still affect how a state implements international law in their domestic legal system.
6.10UN treaty committees have consistently requested that Australia review and withdraw its reservations and interpretive declarations, and have raised concerns regarding Australia’s lack of progress in this respect. The AHRC’s final Free and Equal report draws attention to this fact, stating:
It is unsatisfactory that there has been no formalised approach to reviewing reservations and interpretive declarations on a periodic basis to ensure their relevance to modern Australian life.
The Australian Government should ultimately strive to ensure that it can meet all human rights standards to the fullest extent and be open to scrutiny for how it is seeking to do so. Reservations and interpretive declarations work against this outcome and should only be maintained for the shortest time necessary and in the narrowest form possible.
6.11The AHRC therefore recommends that the ‘Joint Standing Committee on Treaties conduct a review of all existing reservations and interpretive declarations under UN human rights treaties’. It states that this recommendation goes towards ‘ensuring appropriate levels of accountability and transparency exist in relation to Australia’s international human rights obligations’. A number of submitters echoed the AHRC’s concerns and recommended that Australia review and withdraw its reservations and interpretive declarations.
Civil and political rights
6.12Civil and political rights refer to those rights primarily derived from the ICCPR. In its Free and Equal 2022 position paper, the AHRC summarises these rights as follows:
Many [civil and political rights] aim to ensure that all people are able to participate in public and political affairs – for example, the right to vote, and freedom of speech, association and assembly. Other rights aim to protect people’s physical liberty and safety – for example, the right to life and to be free from torture, as well as freedom of movement, freedom from arbitrary detention, and the right to a fair trial.
6.13The AHRC HRA model includes most civil and political rights as articulated in the ICCPR, although there is some variation in terms of suggested wording of certain rights (see discussion below). Additionally, the model proposes that some civil and political rights are not to be protected as stand-alone rights, as they are in international human rights law. For example, the AHRC model proposes to include the right to self-determination, protected in common article1 of the ICCPR and ICESCR, within a preamble as an overarching principle of the HRA rather than a stand-alone right. In this regard, the AHRC explains:
The Commission’s proposal…involves incorporating a cluster of rights related to self-determination (including cultural rights, non-discrimination rights, ICESCR rights, all with a cause of action and representative standing); an overarching participation duty; and a preamble articulating self-determination principles…The Commission considers that including a participation duty and related rights helps to operationalise self-determination in a manner that can best lead to practical outcomes. It offers this proposal as an alternative to including a standalone ‘right to self-determination’ in the Human Rights Act, because of the vagueness and complexity of the term, and the associated potential difficulties with litigating collective self-determination claims in court.
6.14The views of submitters and witnesses with respect to the inclusion of the right to self-determination is considered further below. Other rights that are not expressly protected in the AHRC’s HRA model include the right of aliens not to be expelled without due process and the prohibition against advocacy of national, racial or religious hatred. The exclusion of these rights is not addressed by the AHRC in its Free and Equal reports and, as such, limited evidence was received by the committee on this matter. The right of aliens not to be expelled without due process is protected by article 13 of the ICCPR, which provides that:
An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.
6.15The article incorporates notions of due process also reflected in article 14 of the ICCPR, which protects the right to a fair hearing. Article 14 does not ordinarily apply to migration decisions as such decisions are not captured by the concept of ‘suit at law’ (noting that article 14 requires that in the determination of a person's rights and obligations in a 'suit at law', everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law). The UN Human Rights Committee has stated that article 13 encompasses ‘the guarantee of equality of all persons before the courts and tribunals as enshrined in [article 14(1)] and the principles of impartiality, fairness and equality of arms implicit in this guarantee are applicable’.
6.16The prohibition against any propaganda for war, and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence is set out in article 20 of the ICCPR. Australia has entered the following reservation with respect to article 20:
Australia interprets the rights provided for by articles 19, 21 and 22 as consistent with article 20; accordingly, the Commonwealth and the constituent States, having legislated with respect to the subject matter of the article in matters of practical concern in the interest of public order (ordre public), the right is reserved not to introduce any further legislative provision on these matters.
6.17The rights in articles 13 and 20 are closely related to other human rights that are included in the AHRC’s model, including the rights to a fair hearing, freedom of expression, freedom of religion and equality and non-discrimination. These related rights, depending on how they are drafted, may afford sufficient protection to the rights contained in articles 13 and 20 of the ICCPR. For example, if a ‘civil proceeding’ in the context of the right to a fair hearing were defined to include migration and refugee decisions, the right of aliens to not be expelled without due process may be adequately protected. In this regard, Refugee Legal, a free specialist legal advice clinic, recommended ‘expanding the AHRC’s proposal for “rights in criminal proceedings” to certain civil proceedings, including migration and refugee proceedings, because of the importance of (funded) legal assistance and interpreters to the equality and fairness of proceedings’. Other submitters argued that the rights should be included as stand-alone rights.
6.18Additionally, the AHCR model does not include right to an effective remedy as a stand-alone right, but it still appears to be protected insofar as the model provides for a direct cause of action for rights violations. This would appear to satisfy the international human rights law requirement that a remedy be available that is effective. In particular, the AHRC recommends:
…that each right within the federal Human Rights Act should have a direct cause of action, and the associated range of judicial remedies. This means that breaches of human rights will enable individuals to bring a claim before the courts (and to make complaints to the Commission) without the need for a separate cause of action arising externally to the Human Rights Act.
This is similar to the approach taken by the ACT Human Rights Act, which also includes a direct cause of action for rights breaches. By contrast, Victoria and Queensland adopt a ‘piggy-backing’ approach, requiring an additional non- Human Rights Act cause of action, that falls short of international standards, and has caused unnecessary complications and confusion regarding the application of those laws.
The Commission’s proposed approach to the federal Human Rights Act, implements Australia’s obligations in a straightforward manner with a less cumbersome enforcement mechanism. This approach reflects the right to an effective remedy as an essential element of the ICCPR.
6.19The AHRC further references the Hon Pamela Tate AM KC (Adjunct Professor of Law and former justice of the Supreme Court of Victoria) on this issue, stating:
The Hon Pamela Tate [AM KC] argues that a Human Rights Act purporting to implement the ICCPR, but which did not include a domestic right to remedy through a direct cause of action, ‘might be inconsistent with the ICCPR’ and therefore may not be considered ‘appropriate and adapted’ to its implementation. In short, it might be beyond Commonwealth power under s 51(xxix)’.
6.20A number of submitters and witnesses provided evidence on the right to an effective remedy in the context of more general discussions regarding remedies. Dr Julie Debeljak, for instance, submitted that in order to comply with the right to an effective remedy, a federal HRA ‘must include a freestanding cause of action supported by a freestanding remedy where public authorities fail to meet their substantive and procedural human rights obligations’. The AHRC’s proposed approach to remedies and views of submitters in this regard are further discussed in Chapter 7.
6.21Among those submitters and witnesses who supported a federal HRA, the inclusion of civil and political rights was considered uncontroversial. The Law Council of Australia, for example, submitted that ‘comprehensive incorporation of the ICCPR should be expected’ and noted that ‘statutory human rights instruments in comparable jurisdictions predominantly protect civil and political rights’. Indeed, the HRAs in the ACT, Victoria and Queensland all primarily protect civil and political rights (although the ACT and Queensland, to a lesser extent, include some economic, social and cultural rights) and submitters observed that the AHRC model is broadly similar to these state and territory instruments in terms of rights content. The United Kingdom (UK), New Zealand and Canada’s approach to rights protection also primarily focuses on civil and political rights. The Victorian Equal Opportunity and Human Rights Commission submitted that ‘[e]nshrining civil and political rights in domestic law through a national Human Rights Act would help bring Australia into compliance with our international treaty obligations’.
Proposed wording of civil and political rights
6.22While most submitters and witnesses agreed with the civil and political rights proposed for inclusion by the AHRC, there was some difference of opinion as to the suggested wording of some of these rights. In particular, some submitters raised concerns that the AHRC model diverged too substantially from the text of the ICCPR. Dr Paul Taylor, Honorary Senior Lecturer and Fellow of the Centre for Public International and Comparative law at the University of Queensland, submitted that:
…the AHRC’s “list of rights for inclusion” takes the ICCPR as its reference point, but extensively redrafts the treaty text for ICCPR rights for no adequately accounted reason…The result of the federal charter would be to establish in Australia a radically different ordering of ICCPR rights from that envisaged by the ICCPR, in conflict with Australia’s ICCPR obligations…A federal charter in this form would reinforce and accentuate the serious imbalances which already exist in the protection available for human rights in Australian law…. The cure is straightforward: ICCPR rights could simply be reproduced faithfully in the AHRC’s “list of rights for inclusion”, including their respective terms of limitation and qualification.
6.23Dr Taylor further argued that ‘[b]y re-casting rights in the proposed federal charter in divergence from their ICCPR counterparts, the process of interpreting them is not simplified but mystified’. He considered that the result of redefining the civil and political rights as well as the ‘unusual selection of some rights as absolute’ and the application of a single limitation clause, would result in the promotion of some rights over others without any apparent justification’.
Right to freedom of religion
6.24A number of submitters raised particular concerns with respect to the AHRC’s proposed wording of the right to freedom of thought, conscience, religion and belief. Article 18 of the ICCPR provides:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
6.25The AHRC model proposes the following wording:
(1) Every person has the right to freedom of thought, conscience, religion and belief. This right includes—
(a) the freedom to have or to adopt a religion or belief of their choice; and
(b) the freedom to manifest their religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private.
(2) No-one may be coerced in a way that would impair their freedom to have or adopt a religion or belief in worship, observance, practice or teaching.
6.26The AHRC explains that the wording proposed is based on equivalent provisions in the Victorian, ACT and Queensland HRAs, with some alterations to ‘ensure clarity by reflecting accepted terminology used in Article 18 of the ICCPR and the body of international human rights law’. The AHRC’s model proposes a single limitation clause which sets out the criteria to follow when considering whether a limit on rights is permissible, and as such article 18(3) is not directly replicated (see chapter 7 regarding this clause). The AHRC notes that it included article 18(4) of the ICCPR in the right to education, which would provide:
A child’s parents or guardian may choose schooling for the child to ensure the religious and moral education of the child in conformity with their convictions, provided that the schooling conforms to the minimum educational standards required under law.
6.27Dr Taylor raised concerns that the AHRC’s proposed wording did not differentiate between those elements of the right that are absolute (namely, the right to hold a religious or other belief or opinion) and those that are subject to the specific limitations clause contained in article 18(3) of the ICCPR (namely, the freedom to manifest one's religion or beliefs). Dr Taylor also raised concerns with respect to the reassignment of article 18(4) to the right to education.
6.28Mr Daniel Simon, representing the Human Rights Law Alliance and the Australian Christian Lobby, raised similar concerns:
The AHRC's proposal diminishes the freedom of religion right as it's found in the ICCPR. It rewords it in such a way that it softens the protection, and it actually removes some elements of it altogether. So the right in the ICCPR is an absolute right, and it includes the right of parents to ensure the education of their children in accordance with their own convictions. That element, in particular, has been removed from the proposal: the right of parents to educate their children in accordance with their own convictions…Rather than being under the right of freedom of religion, it's now a right to education…It rearranges the right by moving it elsewhere and rewords the right so that it's ambiguous with regard to a parent's ability to have their own choice consistent with their own convictions for their children.
6.29Similarly, the National Catholic Education Commission submitted that the AHRC’s proposed wording ‘varies significantly enough from that of Article 18 of the ICCPR to cast doubt on the far-reaching and profound nature of the proposed right’. It considered that ‘a federal human rights Act may, if enacted with this wording, not provide effective protection according to the intent of Article 18 of the ICCPR’ and recommended that any future HRA ‘must be appropriately conceived and constructed, and not dimmish or favour recognised and protected right[s]’.
6.30Some submitters indicated that if certain rights were to be redrafted, particularly the right to freedom of religion, they would be more supportive of the AHRC’s proposed model. Dr Taylor, for instance, concluded that he would support a federal HRA if it faithfully reproduced the rights as set out in the ICCPR, including the limitation clauses specific to each of those rights, in combination with a selection of rights from the ICESCR. The Church of Scientology similarly recommended that the wording proposed by the AHRC with respect to the right to freedom of religion be ‘replaced with a duplication of article 18 of the ICCPR’. Australian Lawyers for Human Rights (an association of legal professionals practicing and promoting awareness of international human rights standards in Australia) also recommended that the right to freedom of religion ‘be drafted in such a way as to fully reflect the substantive scope and content of this right and its limitations as articulated within Article 18 of the ICCPR’. More specifically, they recommended adding to the AHRC’s proposed provision ‘words to the effect that “limitations as are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others”’. As to the importance of such a limitations clause, Dr Tania Penovic, appearing on behalf of Australian Lawyers for Human Rights, gave evidence that:
For rights which are not absolute, clear parameters need to be set for balancing those rights against other competing rights or pressing societal interests such as public health in accordance with international law and jurisprudence, and the various iterations of the previous government's draft religious freedoms legislation demonstrate the importance of balancing countervailing rights in accordance with international jurisprudence, ensuring that the enjoyment of the rights of some, such as the freedom to manifest one's religion or beliefs, do not become a vehicle for legitimising violations of the rights of others, including LGBTIQ-plus people.
6.31Ms Larissa Kaput, an advocate for victim-survivors, argued there was a need to balance freedom of religion and freedom from religion, arguing it is critical that any legislative change permitting religious freedoms does not permit it to be used by the religious institutions as a means to cause harm.
Prohibition of torture or cruel, inhuman or degrading treatment or punishment
6.32Some submitters also raised concerns about the AHRC’s proposed wording of the prohibition of torture or cruel, inhuman or degrading treatment or punishment. This right is protected in article 7 of the ICCPR, which provides:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
6.33The prohibition of torture or cruel, inhuman or degrading treatment or punishment is absolute and may never be subject to any limitations. In this regard, the UN Human Rights Committee has stated:
The text of article 7 allows of no limitation. The Committee also reaffirms that, even in situations of public emergency such as those referred to in article 4 of the [ICCPR], no derogation from the provision of article 7 is allowed and its provisions must remain in force. The Committee likewise observes that no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority.
6.34The AHRC model proposes framing the right as ‘protection from torture and cruel, inhuman or degrading treatment’ and suggests the following wording:
(1) A person must not be—
(a)subjected to torture; or
(b)treated or punished in a cruel, inhuman or degrading way; or
(c)subjected to medical or scientific experimentation or treatment without the person’s full, free and informed consent.
6.35The AHRC stated that this right is intended to implement article 7 of the ICCPR and the wording is based closely on the equivalent provisions in state and territory HRAs. The AHRC recommended that this right, alongside other absolute or non-derogable civil and political rights, be carved out of any limitation clause as such rights must not be subject to any limitation.
6.36Some submitters were concerned that the AHRC’s rewording of the right in article 7 of the ICCPR may have the effect of broadening its scope and altering its meaning. The Human Rights Law Alliance considered the AHRC’s proposed wording to be ‘very different’ from the text of article 7, particularly the phrase ‘treated…in a cruel, inhuman or degrading way’ (which differs from the language used in article 7, that of subjecting a person to ‘cruel, inhuman or degrading treatment’). The Human Rights Law Alliance submitted that the different wording used in the AHRC’s model would:
…[prohibit] conduct at a new low threshold, of “treating” someone in a “degrading way.” It would be an absolute right (like the prohibition of torture), meaning that every right in its path must give way. This is inconsistent with the ICCPR because the redrafting is so radical that it would impinge in a major way on other rights.
6.37The Australian Association of Christian Schools raised similar concerns. It considered that the AHRC’s proposed wording extended the prohibition against torture or cruel, inhuman or degrading treatment or punishment in article 7 ‘to a much broader and ill-defined prohibition against “treating” someone in a “degrading way”’. The Australian Association of Christian Schools was concerned that ‘certain aspects of Christian teaching’ may be ‘claimed to be degrading and prohibited’ by this right. It recommended that the exact text of article 7 be incorporated into a federal HRA. Similarly Freedom for Faith submitted that the AHRC’s ‘proposed reframing of Article 7 materially lowers the threshold [of what would constitute degrading treatment], because “treated… in a degrading way” could include speech and/or religious practice that an individual claims is “degrading”’. The Australian Christian Lobby were likewise concerned that the AHRC’s version of the right ‘would be capable of suppressing various forms of free speech (e.g., on biblical texts) and religious practice, and could stand in the way of basic parental support for children’. DrTaylor also disagreed with the AHRC’s proposed wording of this right but acknowledged that such concerns could generally be addressed if a HRA faithfully reproduced the rights in the ICCPR.
Economic, social and cultural rights
6.38Economic, social and cultural rights are those rights primarily derived from the ICESCR, summarised by the AHRC in its Free and Equal 2022 position paper as follows:
ICESCR sets out the basic necessities that people need to lead a healthy and dignified life – for example, the right to adequate housing, food and clothing and the right to adequate health care, as well as equitable access to education. Other rights in ICESCR aim to ensure that all people can develop to their full potential and have access to economic opportunities – for example, the right to work and to fair and safe conditions at work.
6.39The AHRC model includes various economic, social and cultural rights, including the rights to education, health, an adequate standard of living and social security as well as cultural rights as they relate to Aboriginal and Torres Strait Islander people. The AHRC emphasises the importance of protecting economic, social and cultural rights in a federal HRA, noting that:
…many of the most pressing human rights concerns facing people in Australia relate to economic, social and cultural rights. These include access to adequate health care, education and housing. And the restriction of these rights is often linked to civil and political rights – like the right to non-discrimination.
6.40The AHRC notes that a clear majority of stakeholders consulted in relation to its Free and Equal 2022 position paper supported the inclusion of economic, social and cultural rights in a HRA and considered there to be strong support among the Australian public of these rights. In light of this, the AHRC considers that:
…a failure to include ICESCR rights in a Human Rights Act would represent a failure to uphold key values held by the Australian community. The Human Rights Act would not be a fully representative or cohesive document without them.
6.41Of those who supported a federal HRA, the vast majority of submitters and witnesses supported some form of inclusion of economic, social and cultural rights, although there were a range of views as to what extent these rights should be protected and how they should be framed in legislation. As outlined below, some submitters supported the model proposed by the AHRC, while others advocated for more extensive protection of economic, social and cultural rights more closely reflective of the text of the ICESCR. Additionally, some submitters noted the relevance of how these rights are to be interpreted. For instance, Ms Kate Eastman AM SC, a barrister and expert in human rights law, stated:
[T]hat idea about what rights we put in and what we don't put in probably doesn't need as much time on it if we also are very clear about how the rights will be interpreted in the future and whether all the rights have that capacity to evolve over time.
6.42National Legal Aid supported the inclusion of rights primarily drawn from the ICCPR and some areas of the ICESCR. It considered that the inclusion of economic, social and cultural rights in a federal HRA was:
especially important…given the prominent role played by the federal government in relation to economic and social matters, including in the administration and funding of the [National Disability Insurance Scheme] and social security system, and funding of health care and housing.
6.43National Legal Aid submitted that it was ‘particularly supportive of the inclusion of the right to an adequate standard of living and the right to a healthy environment in the AHRC’s proposed [HRA]’, based on the case work experience of Legal Aid Commissions with respect to disasters and housing. Legal Aid NSW, for example, provided advice to people whose homes were destroyed or uninhabitable following floods and observed the lack of legal protections afforded to residents who were relocated to temporary accommodation (which was not subject to residential tenancy legislation). National Legal Aid stated that it hoped a federal HRA would ‘lead to upstream decision making that is more conscious of the interrelationship between disasters and rights, and its relevance to disaster prevention and disaster resilience in the context of the right to an adequate standard of living’.
6.44Mr Chris Stamford, National Human Rights Act Campaign Manager for Civil Liberties Australia, stated that it supported the AHRC model as a ‘workable starting point’. The model can then develop and evolve over time, as has been done in the ACT, for example, where various economic, social and cultural rights were subsequently included. MrStamford argued that a federal HRA would ‘have to start with civil and political rights’ and economic, social and cultural rights could be added over time, noting:
the fact that…[the committee] make[s] a decision at this point around the cut-off point for…economic, social and cultural rights doesn't preclude the opportunity to come back and have a look at the act later on and continue to build on it.
6.45The ACT Human Rights Commission also supported an evolutionary model. It noted that while the ACT HRA only protected human rights derived from the ICCPR when it was first introduced, subsequent law reforms led to the protection of some economic, social and cultural rights, such as the rights to education and work, and, most recently, the right to a healthy environment. The ACT Human Rights Commission considered that the ACT HRA ‘reflects a balanced approach to introduction of rights protection and demonstrates an effective way of achieving cultural change’.
Constitutional concerns
6.46In considering how to frame economic, social and cultural rights in a federal HRA, the AHRC model flags some potential constitutional concerns. The main concern identified relates to ensuring that economic, social and cultural rights are framed compatibly with the exercise of judicial power under ChapterIII of the Constitution, which requires criteria or standards to be applied in a ‘sufficiently definite’ manner. The National Human Rights Consultation Committee (Consultation committee) sought advice with respect to this for their 2009 report, and in particular:
whether it would be a valid exercise of judicial power for a court to interpret a provision of Commonwealth legislation consistently with rights, make a declaration of incompatibility or determine that a public authority had acted incompatibly with four named economic and social rights [those being the rights to just and favourable conditions of work, an adequate standard of living, health and education].
6.47Having regard to the ‘very general terms’ in which economic, social and cultural rights are expressed in the ICESCR, Stephen Gageler AC (then Commonwealth Solicitor-General, and now Chief Justice of the High Court of Australia) and Henry Burmester AO KC opined:
We think that the prescription in the ICESCR of rights of that nature - which might be sought to be achieved through any one or more of a range of measures - would be likely to be regarded by the High Court as lacking "sufficient specificity" to support the making of a law under the external affairs power…
6.48The advice continued:
An examination of the content of those rights as set out in the ICESCR demonstrates a general absence of what would traditionally be regarded as judicially manageable standards. Given the issues of resource allocation that are necessarily involved, how is a court to assess, for instance, whether or not a person is being denied "just and favorable conditions of work" (Art 7), "an adequate standard of living'" (Art 11) or "the enjoyment of the highest attainable standard of physical and mental health" (Art 12)?
6.49Mr Gageler and Mr Burmester noted, however, that the rights to just and favourable conditions of work and education include ‘some more specific rights that may represent judicially manageable standards’, such as the obligations to equal pay for equal work, remuneration for public holidays and free and compulsory primary education. They concluded that:
Allowing for the possibility of these limited exceptions we therefore consider that any general provision for enforcement of the rights set out in Arts 7, 11, 12 and 13 of the ICESCR would be unlikely to be held to involve the exercise of judicial power within the meaning of Ch III of the Constitution. The position would be the same whether or not an issue concerning those rights arose in the course of proceedings for some other relief or remedy.
6.50At the time, the Human Rights Law Centre commissioned advice from Peter Hanks KC, Debra Mortimer SC (now Chief Justice of the Federal Court), Associate Professor Kristen Walker (now Justice of Appeal, Supreme Court of Victoria) and Graeme Hill (now SC) on this matter. Their advice concluded that there ‘is no necessary constitutional objection to including economic and social rights in any federal [HRA]’ for the following main reasons:
It is true that many social and economic rights are broadly expressed; however, they are no more broadly expressed than many civil and political rights that can be interpreted and applied in the exercise of federal judicial power. Some broadly expressed social and economic rights are, for example, found in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Victorian Charter).
…It is also true that decisions about social and economic rights may often have implications for the allocation of budgetary resources. However, the same is true of many, if not all, human rights. For example, the right not to be subjected to an unfair trial requires the government to put in place structures that enable a fair trial (including appropriate arrangements for legal aid).
6.51As to those economic, social and cultural rights that are broadly expressed, the legal advice stated that ‘the mere breadth of the rights in the ICESCR does not make them non-justiciable’ and that ‘the courts can apply judicial technique to very general provisions, by giving content to those provisions on a case-by-case basis, and by requiring the criteria to be satisfied by evidence’. It stated that although broadly expressed, the rights in the ICESCR ‘do impose obligations on the signatory states’ and ‘do require “common action” by the signatory states, and therefore engage the external affairs power’. The advice concluded that ‘[f]or these reasons, the real issue is whether economic and social rights can be appropriately expressed, and the courts' role appropriately limited. This would seem possible’. The advice considered:
It would seem to be possible, for example, to frame statutory provisions that give more specific content to the very general language of the introductory parts of the identified ICESCR rights. Admittedly, those more specific provisions might be only a partial implementation of the ICESCR; however, that fact alone would not prevent reliance on the external affairs power.
6.52The legal advice also opined that it would be possible to confine the ‘role of the courts through the limitations that (1) measures need only be reasonable, and (2) reasonableness is assessed within available resources’.
6.53The AHRC references this advice in their Free and Equal Report. A number of submitters and witnesses also responded to these constitutional concerns, including the legal advice outlined above. The Economic, Social and Cultural Rights Network (Australia & Aotearoa/New Zealand) (ESCR Network), for instance, said the following with respect to the advice of Gageler and Burmester:
…while it was provided by eminent constitutional experts, it was informed by decontextualised reading of the text of the ICESCR, rather than drawing on established international jurisprudence and theory on the content of [economic social and cultural rights] and the nature of the obligations imposed by the ICESCR.
6.54Dr Genevieve Wilkinson, co-convenor of the ESCR Network, gave further evidence that they ‘disagree with the outdated suggestion that there are any constitutional barriers to the enforceability or suitability of these rights or that they lack clarity’.
6.55The Human Rights Law Centre considered the advice of Gageler and Burmester to be ‘contentious’ and submitted:
The debate regarding the justiciability and enforceability of economic, social and cultural rights can be put to rest. We know from burgeoning international jurisprudence that many aspects of economic, social and cultural rights are immediately applicable and capable of judicial application. Successful adjudication of these rights has taken place now for decades, debunking the assertion that ICESCR rights cannot be legitimately justiciable. Courts have a role to play in actively monitoring and assessing whether states are fulfilling their obligations to protect and promote ICESCR rights.
6.56Professor George Williams AO, a constitutional law expert, also gave evidence on this point, stating the Gageler and Burmester advice indicated:
…that it would be possible in conformity with the Constitution to have some level of enforcement for those [economic, social and cultural rights]. There are limits and parameters, but that is where the exposure draft comes in. There is no threshold no; it is just that it has to be done carefully and properly. But that is true for any Commonwealth legislation. There is nothing unusual here.
6.57Professor Williams stated that he favoured the view that economic, social and cultural rights are no more broadly expressed than many civil and political rights and they can be interpreted and applied in the exercise of judicial power. He argued:
…there's good evidence internationally, such as in South Africa, for example, where economic, social and cultural rights are enforced. There are other examples as well. I favour that view. I think it is the better view. But I can't say it will be the view that the High Court adopts. It hasn't been litigated. Again, I think it's a risk based analysis for parliament essentially. I would favour taking that risk because I think there is a good and strong basis for it, but you have to recognise it's not without risk.
6.58Regarding the issue of enforceability of economic, social and cultural rights, Ms KateEastman emphasised that many of these rights, such as the rights to housing, health and employment, are already protected to some extent in domestic law:
For example, if we take economic, social and cultural rights with respect to employment rights, they're clearly articulated in the international convention. One only needs to open the Fair Work Act and those rights are replete there. There is the right to minimum wages and the right to rest and leisure and paid public holidays. A lot of our employment laws very much recognise and respect those rights and probably go even further than our international obligations. We have a right to universal health care in this country—that meets that right. We have rights that protect tenants from eviction. We have a range of rights against discrimination in relation to accommodation.
In some senses, the important issue around these rights is not to look at them only in the abstract…we're comfortable with the recognition of these rights in other laws that are quite subject-matter specific. It's not a great leap to bring them into a framework of rights where the rights work together.
6.59Ms Eastman noted that if a court was asked to change broad policies for a group of people ‘rather than just determining a matter or dispute between two individuals or a group’, then ‘the exercise of judicial power would be stretched’. However, she considered that ‘this is about framing the rights and also being really clear about what remedies are available for economic, social and cultural rights’.
Framing of economic, social and cultural rights
6.60Having regard to the above constitutional concerns, the AHRC states that it has aimed to frame economic, social and cultural rights in a constitutionally sound manner (while noting that it would be ‘constructive to seek updated advice from the Solicitor-General on this question [of constitutionality]’). In effect, this has meant articulating these rights more narrowly than they are expressed in the ICESCR and not requiring progressive realisation principles to be considered by the courts (see below for further discussion of how rights are to be realised). The AHRC notes:
…that it does not consider progressive realisation principles to be inherently non-justiciable. However, it acknowledges the importance of providing certainty that the implementation of ICESCR is constitutional, suitably adapted for the Australian context, and directly enforceable by the courts. It also recognises the importance of providing sufficient clarity about the contents of rights – both for the benefit of judges and public authorities interpreting and applying the rights; and for the benefit of individuals that seek to rely upon them through complaints and judicial review processes.
6.61The AHRC states that its model focuses on:
…including the essential, core and/or immediately realisable aspects of ICESCR rights. This renders the rights more specific, but also somewhat narrower. All ICESCR rights are implemented through the Commission’s proposals, to varying degrees.
6.62Mr Darren Dick, Senior Policy Executive of the AHRC, elaborated on this narrower approach to economic, social and cultural rights, stating:
Everything doesn't have to be in the human rights act, I guess is what we're saying. We know that's a flavour of some of the criticisms of our model: why doesn't it include the whole of this treaty, for example, all the rights in CEDAW and all the rights in the CRC? This isn't necessarily the place to do everything. We need better discrimination laws, we need a human rights act, we need human rights indicators, we need better government processes for setting priorities and making decisions, we need human rights education. It fits across all of them. It's not in one spot.
6.63The AHRC explains that the full range of economic, social and cultural rights would still form part of the AHRC’s educational and advocacy functions and ‘inform upstream consideration of decisions about the framing of laws, through requiring a statement of compatibility to address the compliance with ICESCR as a whole’. The AHRC further notes that its approach to framing economic, social and cultural rights:
…is designed to accord with the Commission’s proposal for including a direct cause of action for unlawfulness under the Human Rights Act. This reflects its intention to ensure that the courts can review rights compliance, and that a right to remedy is available for individuals where breaches have occurred.
6.64The AHRC model closely draws on similar legislation in comparable international and domestic jurisdictions. For instance, the ACT and Queensland HRAs have ‘taken a similar qualified approach to ICESCR rights’. The AHRC explains that its model would protect those economic, social and cultural rights already protected by state and territory instruments, including the rights to education, health services and work, as well as some additional rights, including the rights to an adequate standard of living, social security and a healthy environment (which derives its core elements from other rights in the ICESCR). The AHRC argues that this approach would ‘incorporate all the key ICESCR rights’.
6.65As to the proposed wording for each right, the AHRC model states:
Where ICESCR rights are protected at the state and territory level, the Commission has based its own proposals on those rights, with some adjustments to language for clarity or to better reflect international law.
6.66In particular, the rights to education, health and work largely reflect the language used in state and territory HRAs. For instance, regarding the right to education, the AHRC explains that its proposed wording is partially based in section 36 of the Queensland HRA and section 27A of the ACT HRA but ‘has been adapted for clarity and to reflect international law’. Other rights, such as the rights to an adequate standard of living and social security, are not yet protected in state and territory HRAs and thus are solely derived from international law.
6.67With respect to some rights, the proposed wording of the right closely reflects the language used in international law. For example, article 9 of the ICESCR recognises ‘the right of everyone to social security, including social insurance’. The AHRC’s proposed wording for this right is very similar: ‘every person has the right to have access to social security’. However, with respect to other rights, the AHRC’s proposed wording differs, in some instances quite substantially, from the language used in the ICESCR. For instance, article 11 of the ICESCR protects the ‘right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’. In contrast, the AHRC’s model proposes the following wording:
(1) Every person has the right to access adequate housing.
(2) No one may be unlawfully or arbitrarily evicted from their home.
(3) Every person has the right to have access to adequate food, water and clothing.
6.68With respect to the right to health, article 12 of the ICESCR recognises ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ and sets out the steps States parties should take to achieve full realisation of this right, such as those steps necessary for the ‘prevention, treatment and control of epidemic, endemic, occupational and other diseases’ (namely, public health measures). Whereas, the AHRC proposes the following for the right to health :
(1) Every person has the right to access physical and mental health services without discrimination.
(2) Every person has the right to emergency medical treatment that is immediately necessary.
6.69The right to health under international law not only encompasses the right to available, accessible, acceptable and quality health services, but also health-care facilities and goods (such as medicines) as well as the right to live in conditions that promote a healthy life (such as access to safe drinking water, housing, food, and a healthy environment). The articulation of the right to health in the ICESCR is therefore much broader than the proposed right in the AHRC’s model.
6.70With respect to rights that are, to varying degrees, protected in both the ICCPR and ICESCR, the AHRC often proposes wording that more closely reflects the ICCPR rather than the ICESCR, the result being the apparent removal of some elements of the right. For example, the AHRC proposes including the right to protection of families, which would provide:
(1) The family is the fundamental group unit of society and is entitled to protection by society and the State.
(2) Every person of marriageable age has the right to marry or refuse to marry another person of their own free choice, and to found a family.
Note: This article should be interpreted in light of Article 10 of ICESCR
6.71The AHRC explains that this right implements article 23 of the ICCPR and references article 10 of the ICESCR. The proposed wording more closely reflects the language used in article 23 of the ICCPR, although it does not expressly include article 23(4), which provides that States parties ‘shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children’. Additionally, the AHRC’s proposed right does not expressly protect article 10(2) of the ICESCR, which provides that:
Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.
6.72This element of the right may, however, be protected in practice by other economic, social and cultural rights, including the rights to social security and work (which provides protection from lack of work-related income due to maternity).
6.73Similarly, the AHRC proposes a general cultural right (in addition to First Nations cultural rights – which are discussed further below), which would provide that:
All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy their culture, to declare and practise their religion and to use their language.
6.74This right implements article 27 of the ICCPR and is based on sections27 and 28 of the Queensland HRA. Article 27 of the ICCPR provides:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
6.75By framing the right to culture by reference to article 27 of the ICCPR, rather than article 15 of the ICESCR, the AHRC arguably narrows the scope of this right. Article 15 of the ICESCR recognises the right of everyone (not just those belonging to ethnic, religious or linguistic minorities) to ‘take part in cultural life’; to ‘enjoy the benefits of scientific progress and its applications’; and to ‘benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which [they are] the author’.
6.76Of those who supported the inclusion of economic, social and cultural rights, a large number of submitters and witnesses considered the AHRC model to be too narrow and advocated for the full inclusion of all economic, social and cultural rights, including all elements of those rights, as protected in the ICESCR. The Australian Human Rights Institute, a research body at the University of NSW, for example, submitted:
We urge the adoption of a broader approach to ESC rights than the ‘somewhat narrow[er]’ approach of the AHRC and recommend that ESCR should be included as fully justiciable rights consistent with our obligations under the international human rights treaties to which Australia is a party.
The Institute supports the inclusion of all ESCR rights as set out in ICESCR. We submit that the AHRC model fails to protect important dimensions of ESCR and that these would be better protected by more generous and explicit protection of ESCR.
6.77The ESCR Network similarly argued for the full inclusion, on an equal basis, of all economic, social and cultural rights, civil and political rights as well as environmental rights in any federal HRA. Dr Genevieve Wilkinson gave evidence that the ESCR Network ‘disagree[d] with the narrow and limited approach the commission has adopted in relation to economic, social and cultural rights, particularly its suggestion to remove obligations of progressive realisation from the reach of courts’ (see below for further discussion on progressive realisation). The ESCR Network advocated for a visionary rather than evolutionary federal HRA, stating:
Once bills of rights are enshrined, they can be legally or politically difficult to update or change. This is why it is vital for Australia to embrace the potential of future-facing human rights. The major challenges of the 21st century (which include climate change, unregulated AI, economic inequality, democratic erosion, insecurity and growing inequality) require a visionary approach to human rights that equips our society and governments with the tools to ensure these challenges are informed by appropriate rights and rights frameworks.
6.78The ESCR Network pointed to the inclusion of economic, social and cultural rights in the Queensland and ACT HRAs as ‘evidence that these rights are in fact consistent with our human rights culture as a country and are constitutionally, legislatively and judicially capable of operating effectively to hold government to account on key rights such as health care, education, housing, workplace rights, culture and, most recently, the environment’. They submitted that while the incremental expansion of these rights in the ACT HRA is ’necessary and desirable’, a federal HRA presents an ‘opportunity to extend these successful [state and territory] models and provide full equivalence of all human rights at the national level’. The ESCR Network recommended framing economic, social and cultural rights as fully justiciable rights, using language more closely reflective of the text of the ICESCR. For example, it recommended including ‘a fully justiciable right for individuals to the highest attainable standard of physical and mental health, reflecting Australia’s obligations to respect, protect and fulfil all elements of the right’.
6.79Professor Sarah Jospeh, Professor of Human Rights Law at Griffith University and former Director of the Castan Centre for Human Rights Law, endorsed the views of the ESCR Network and considered the AHRC’s model to be ‘too conservative and possibly reflective of outmoded views of ESC rights’, in terms of the view that these rights are not justiciable. Professor Joseph emphasised the indivisibility, interdependence and equal importance of all human rights and cautioned that the ‘inclusion of civil and political rights without economic social and cultural rights however could risk the elevation of the former rights at the potential expense of the latter, when such rights might clash’.
6.80Dr Julie Debeljak acknowledged the cautious approach of the AHRC but considered the proposed model did not go far enough. She submitted:
Although it is understandable that the AHRC Position Paper takes a risk-averse approach to the protection and promotion of economic, social and cultural rights in a federal human rights instrument, it does not adequately reflect the state of international and comparative jurisprudence regarding the content of economic, social and cultural rights, the obligations on States to (eventually) fully realise those rights, and the numerous methods and modes of enforceability including their justiciability.
6.81The Law Council acknowledged that ‘the approach suggested by the AHRC is logical, and would minimise any potential for provisions of the Human Rights Act to be found to be unconstitutional, in line with the [legal advice sought by the Human Rights Law Centre]’. It observed that the partial inclusion of economic, social and cultural rights in the ACT HRA, for example, ‘reflects the reality that such legislation is the result of political consensus as well as expert opinion on legal feasibility and/or constitutionality’. Nevertheless, the Law Council recommended that a federal HRA ‘should reflect the broadest possible range of Australia’s international human rights obligations’, including the provisions of the UNDRIP. It recommended that at a minimum, a federal HRA should protect all the rights already protected by existing state and territory HRAs, adapted as appropriate to a federal enactment, and that ‘additional economic, social and cultural rights…should be included, but with careful attention to framing to ensure they are compatible with the Australian Constitution and amenable to judicial enforcement’.
6.82Numerous submitters and witnesses drew on South Africa as an illustrative example of how various economic, social and cultural rights can be justiciable. The Constitution of South Africa enumerates both civil and political rights and economic, social and cultural rights. Dr Debeljak, for example, submitted:
The [South African] Constitutional Court’s decisions highlight that enforcement of economic, social and cultural rights is about the rationality and reasonableness of decision making; that is, the State is to act rationally and reasonably in the provision of social and economic rights. So, for example, the government need not go beyond its available resources in supplying adequate housing and shelter; rather, the court will ask whether the measures taken by the government to protect the right to adequate housing were reasonable. This type of judicial supervision is well known to the Australian legal system, being no more and no less than what we require of administrative decision makers – that is, a similar analysis for judicial review of administrative action is adopted.
Given the jurisprudential emphasis on the negative obligations associated with economic, social and cultural rights, the limited approach to the progressive realisation of the positive obligations, and the focus on rationality and reasonableness, there is no reason to preclude formal and justiciable protection of economic, social and cultural rights in Australia.
Exclusion of economic, social and cultural rights
6.83The committee did not receive any specific evidence that economic, social and cultural rights should be excluded altogether from a federal HRA. As outlined above, submitters and witnesses who supported a federal HRA were generally supportive of the inclusion of some, if not all, of the rights set out in the ICESCR. A small number of submitters and witnesses were, however, of the view that a federal HRA should not be enacted at all (as outlined in chapter 5). The main arguments against a federal HRA include:
human rights should be defined by the legislature, not the judiciary, as it requires a value judgment based on community standards; and
by inviting judges to interpret legislation against ‘broad and vague’ standards, the ‘the proper functioning of courts’ would be distorted.
6.84Some of these arguments, such as those relating to courts interpreting legislation against broad and imprecise standards, may be particularly applicable to economic, social and cultural rights given their broad expression in the ICESCR. However, as set out above, the majority of submitters and witnesses considered that notwithstanding their breadth, economic, social and cultural rights could be framed in such a way as to ensure their constitutionality and justiciability. In this regard, Professor Joseph submitted:
ESC rights are justiciable: there is simply too much evidence to argue to the contrary. Courts across the world, largely in States that are poorer than Australia, have issued numerous decisions on ESC rights. Furthermore, the UN Committee on Economic Social and Cultural Rights has issued numerous General Comments which add flesh to the bare bones of the words of the ICESCR.
Other rights
6.85Many submitters and witnesses supported the inclusion of other rights in addition to those contained the ICCPR and ICESCR. Some of these rights are new rights, such as the right to a healthy environment, whereas other rights relate to specific groups, such as Aboriginal and Torres Strait Islander people, children, people with disability, older persons and victim-survivors of crime. Several rights relating to these groups are protected by subject matter specific treaties that expand or elaborate on the overarching rights contained in the ICCPR and ICESCR in relation to particular individuals or groups (such as women, people with disabilities, children and racial groups). Some submitters and witnesses provided evidence that these subject matter specific rights should be included in addition to the core rights contained in the ICCPR and ICESCR.
Right to a healthy environment
6.86In July 2022, the UN General Assembly adopted a resolution that specifically recognised the ‘right to a clean, healthy and sustainable environment’ as a human right and noted its relationship to other rights and existing international law. The resolution affirmed that the promotion of this right ‘requires the full implementation of the multilateral environmental agreements under the principles of international environmental law’ and called on States parties, as well as other relevant stakeholders, to ‘adopt policies, to enhance international cooperation, strengthen capacity-building and continue to share good practices in order to scale up efforts to ensure a clean, healthy and sustainable environment for all’. Australia was one of 161 UN member states that voted in favour of the resolution.
6.87As to the content of this right, the UN Special Rapporteur’s report on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment distinguishes between the substantive and the procedural elements of the right. These elements are summarised as follows:
The procedural elements are access to information, public participation, and access to justice and effective remedies. The substantive elements include clean air, a safe climate, access to safe water and adequate sanitation, healthy and sustainably produced food, non-toxic environments in which to live, work, study and play, and healthy biodiversity and ecosystems.
6.88The AHRC’s model HRA recommends including the right to a healthy environment, to provide:
Every person has the right to an environment that does not produce adverse health consequences in the following respects:
(d)Every person has the right not to be subject to unlawful pollution of air, water and soil.
(e)Every person has the right to access safe and uncontaminated water, and nutritionally safe food.
(f)No unjustified retrogressive measures should be taken with regard to this right.
(g)No one should be subject to discrimination regarding the realisation of this right.
6.89The AHRC states that its decision to include this right ‘reflects growing international consensus and practice around the role and importance of environmental protections’, noting that ‘approximately 80% of UN member States recognise the right to a healthy environment in constitutional or legislative texts’. The AHRC also indicates that there was ‘support for the inclusion of environmental considerations by a number of Free & Equal stakeholders’.
6.90As to the proposed wording of the right, the AHRC explains:
The Commission’s proposal for a right to a healthy environment draws directly upon the existing ICESCR obligations contained within the right to health, the right to an adequate standard of living (Articles 12, 11) as well as the right to life in the ICCPR (Article 6)…The proposal for the right to a healthy environment is therefore a thematic articulation of elements of existing rights (that would also be implemented via the Commission’s proposals).
6.91In particular, clause (a) reflects States parties’ obligations with respect to the rights to health and life, including obligations to refrain from unlawfully polluting air, water and soil, and to take measures to preserve the environment and protect it against harm, pollution and climate change. Clause (b) reflects obligations with respect to the rights to health and an adequate standard of living, and clauses (c) and (d) reflect ‘overarching ICESCR principles to avoid retrogressive measures and discrimination’, meaning ‘that there should be no unjustified backward movement with respect to the enjoyment of this right’. The AHRC’s proposal appears to reflect some of the substantive elements of the right, such as access to safe and uncontaminated water, but does not appear to capture the procedural elements of the right (as outlined below). The proposed wording also differs from that used in the General Assembly resolution (which provides for the ‘right to a clean, healthy and sustainable environment’).
6.92The right to a healthy environment is currently being considered for inclusion in the ACT HRA. The Human Rights (Healthy Environment) Amendment Bill 2023 (ACT) seeks to insert the right to a clean, healthy and sustainable environment, which is to be enjoyed without discrimination. While public authorities would have an obligation to act in a way that is compatible with this right and to consider this right in decision-making, there would not initially be a direct right of action to the ACT Supreme Court for a breach of these obligations. The operation of these provisions would, however, be reviewed by the minister five years after commencement. The explanatory memorandum explains that while a direct right of action is not available, all other enforcement mechanisms under the ACT HRA would apply, such as the requirement for the Attorney-General to certify compatibility of new government bills; the requirement for courts and decision-makers to interpret laws consistently with human rights; the ability for the ACT Supreme Court to issue a declaration of incompatibility with respect to this right; and the ability to bring complaints for breaches of this right to the ACT Human Rights Commission. The ACT Human Rights Commission submitted that it strongly supports the inclusion of this right in the ACT HRA, stating:
The inclusion of such a right would promote early consultation by agencies about the implications of proposed legislation on the right to a healthy environment, even if that legislation was not environmentally focused itself. There would also need for agencies to provide justification as to whether any actions or decision taken that limit the human right to a healthy environment would be reasonable, necessary and proportionate. Coupled with the proposed accessible complaints mechanism that would allow individuals to take action when they believe their right to a healthy environment has been infringed, such a right will in our view create further incentives for organisational change to enable better consideration of the impacts on the human rights of those impacted by decisions affecting the environment.
6.93With respect to a federal HRA, a significant number of submitters and witnesses supported the inclusion of the right to a healthy environment. For example, the Victorian Equal Opportunity and Human Rights Commission submitted that the right should be included ‘as it brings together the environmental dimensions of civil, cultural, economic, political, and social rights, and protects the core elements of the natural environment that enable a life of dignity’. Emeritus Professor Andrew Byrnes, appearing on behalf of the Australian Human Rights Institute (and formerly the committee’s legal adviser), welcomed the inclusion of the right and noted that:
When Australia voted in favour of the United Nations General Assembly resolution in July last year on the subject, it recognised and affirmed the importance of this right for the enjoyment of all rights. The inclusion in a Commonwealth human rights act of this right, in the broad form adopted by the General Assembly, will provide guard rails to protect our most vulnerable communities and will support good governance in the current climate era.
6.94The Asian Research Institute for Environmental Law similarly emphasised the interrelationship between human rights and the environment, submitting that ‘human rights cannot be enjoyed without a safe, clean, healthy and sustainable environment, and sustainable environmental governance cannot exist without an enabling environment for exercising environmental rights’. Environmental Justice Australia likewise submitted that a ‘safe and healthy environment is broadly accepted as a precondition to the realisation of most other human rights’ and while other rights, such as the rights to life or health, ‘arguably can be interpreted to include a right to a safe and healthy environment, they are not sufficient to safeguard this right’. The Human Rights Law Centre argued that the right to a healthy environment is also ‘inseparable from the rights to culture, health and self-determination for Aboriginal and Torres Strait Islander people’ and noted the importance of including this right in light of the acute and disproportionate ‘threats and impacts on Aboriginal and Torres Strait Islander peoples’ connection to Country, culture and wellbeing’. A 2022 decision of the UN Human Rights Committee against Australia is relevant in this regard. It found that Australia’s failure to provide adaptation and mitigation measures to address climate change impacts violated the rights to culture and a private life of eight Torres Strait Islanders.
6.95As to the constitutionality of including the right to a healthy environment in a federal HRA, the Law Council of Australia noted ‘that constitutional support for the enactment of rights not specifically included in either the ICCPR, ICESCR or the other human rights treaties to which Australia is party would need to be considered carefully’. Other witnesses, however, were not concerned about any potential constitutional challenge. Professor Williams and Ms Eastman gave evidence that there were multiple heads of constitutional power that may be used to protect this right. Several submitters also provided evidence with respect to other comparable jurisdictions that have protected the right to a healthy environment, such as Canada. As noted above, 80 per cent of UN member states have also recognised the right to a healthy environment in domestic law.
6.96While many submitters supported including the right to a healthy environment in a federal HRA, there were some concerns raised with respect to the AHRC’s proposed wording of the right, with views varying as to which, and to what extent, the substantive and procedural elements of the right should be protected.
Substantive element of the right
6.97Several submitters argued that the right to healthy environment should be broadly expressed and reflective of international standards. Environmental Defenders Office submitted that the right should ‘include the right to a “clean”, “healthy” and “sustainable” environment, consistent with the General Assembly’s resolution’. Environmental Justice Australia agreed, submitting that:
Express recognition of the necessity of a ‘safe’ environment as a component of the right reflects the necessary need to recognise and respond to the reality of climate change when articulating and realising the right to a healthy environment.
6.98Submitters considered the AHRC’s proposed framing of the right to be too narrow and argued that the right should not be limited to an exhaustive list of substantive elements (as is currently proposed). The Australian Human Rights Institute, for instance, submitted:
Particularly in light of the Special Rapporteur’s six substantive protections, limiting such protection to ‘unlawful’ pollution resulting from ‘air, water and soil’, or access to ‘safe’ food and water, is unduly narrow. A fuller and broader expression of the right would offer a more holistic suite of protections, inclusive of healthy eco-systems and biodiversity for example, consistent with view of the Special Rapporteur and ought to be embraced.
6.99The Environmental Defenders Office reasoned that the right should not be restricted to an exhaustive list of substantive elements because:
…interpretation of the right will evolve as our understanding of State obligations under international human rights law in relation to the environment evolves, noting that human rights treaties are considered living instruments that must evolve over time and be interpreted in light of present conditions.
6.100Environmental Justice Australia similarly submitted that to ‘account for the continued development in emerging international law and environmental science, the right should not include substantive elements’ but rather should be defined broadly. However, if substantive elements were to be included, it submitted that those elements proposed by the AHRC ‘may be too prescriptive’ and instead, the substantive elements ‘should include but not be limited to’ those elements identified by the Special Rapporteur. They reiterated ‘that any substantive element must not limit the ways in which the right will evolve at international law and in a changing environment (and with changing scientific knowledges)’.
6.101As to the specific wording of the proposed right, a number of submitters raised concerns with the AHRC’s proposal to include the term ‘unlawful’ with respect to the right not to be subject to air, water or soil pollution of air. The Australian Human Rights Institute submitted:
The term ‘unlawful’ should not be adopted as it implies that lawful pollution is acceptable even where it produces adverse health consequences, an implication which contradicts the very definition of the right to a healthy environment.
6.102The Environmental Defenders Office similarly disagreed with the inclusion of the term ‘unlawful’ and further considered that doing so ‘contradicts the Commission’s proposed definition of the right to a healthy environment as the right to an environment that does not produce adverse health consequences’. Environmental Justice Australia raised similar concerns, submitting:
The right to not be subjected to harmful pollution should not be confined to legal interpretation of what is ‘lawful’ and ‘unlawful’ or potential ‘carve-outs’ in legislation that could make harmful pollution lawful…Such framing has the potential to seriously reduce the circumstances in which the right would be relied upon and implies that lawfulness eliminates the need for protection of the right.
Procedural elements of the right
6.103The procedural elements of the right are reflected in the UN Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) and the UN Framework Principles on Human Rights and the Environment (UN Framework Principles). The Aarhus Convention links environmental rights and human rights and imposes obligations on States parties with respect to various procedural rights. As articulated in article 1 of the Aarhus Convention:
In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.
6.104The UN Framework Principles contain 16 principles that articulate the human rights obligations of States in relation to environmental matters. Principles 7, 9 and 10 of the UN Framework Principles reflect the procedural rights articulated in the Aarhus Convention, that is, States parties should provide for:
public access to environmental information;
public participation in environmental decision-making, including considering the views of the public in decision-making; and
access to effective remedies for violations of human rights and environmental laws.
6.105The former UN Special Rapporteur emphasised that these principles ‘do not create new obligations’; rather they reflect ‘actual or emerging international human rights law’ and apply ‘existing human rights obligations in the environmental context’. For example, the procedural right of access to information is reflected in multiple human rights instruments, including article19 of the ICCPR, which protects the right to freedom of expression. The UN Human Rights Committee has observed:
To give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information. States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation.
6.106Several submitters argued that the procedural elements of the right to a healthy environment should be specifically protected as they are essential for the realisation of the right. In particular, submitters recommended the inclusion of the procedural rights protected in the Aarhus Convention, including the rights to access information, participate in decision-making and access to justice. Environmental Justice Australia further submitted that additional specific procedural and participation rights for, and developed by, Aboriginal and Torres Strait Islander people should be included to ‘remedy historical and ongoing exclusion from government decision making’. Some submitters also recommended that Australia ratify the Aarhus Convention in order to better recognise these rights.
6.107The committee also received evidence as to whether the procedural elements of the right to a healthy environment, as enshrined in the Aarhus Convention, could be extended to apply to other human rights. Environmental Justice Australia stated:
By extending participation rights enshrined in the Aarhus Convention to other human rights, Australia would be considered a leader by its international counterparts in the protection of participation in human rights. However, to the extent that there are already some participation rights articulated within Australian domestic law and in other international instruments, it would not be entirely novel nor unprecedented to implement these procedural rights.
6.108The AHRC’s proposed model includes ‘cross-cutting procedural duties’, including a participation duty and equal access to justice duty, which may, to some extent and in a more generalised way, encompass the procedural elements of the right to a healthy environment (although noting the proposed participation duty would only apply in respect of decisions affecting Aboriginal and Torres Strait Islander people, people with disability and children). The AHRC’s proposed procedural duties are further discussed in chapter 7. Additionally, as noted above, some procedural elements, such as access to information, are somewhat reflected in international human rights law. Limited evidence was received as to whether existing rights, such as the right to freedom of expression, would be sufficient to capture all procedural elements of the right to a healthy environment, as set out in the Aarhus Convention.
Related environmental rights
6.109Further, a number of submitters argued that additional related rights should be protected and specific principles recognised, including with respect to:
environmental human rights defenders – including those rights and obligations set out in the Aarhus Convention and Escazú Agreement (particularly article 9). Some submitters further recommended the establishment of a rapid response mechanism to protect defenders exercising their rights from penalisation, persecution, harassment or any other form of retaliation for their involvement;
environmental protest – recognising the ‘trend towards criminalising peaceful protest, specifically environmental protest’. Some submitters suggested drafting specific rights in similar terms to article 9 of the Escazú Agreement and at a minimum, consistent with the rights guaranteed in articles 19, 20, 21 and 22 of the ICCPR;
nature – including that there be no strict delineation between human rights and the rights of nature;
Aboriginal and Torres Strait Islander people and culture – including ‘distinct and additional cultural rights for Aboriginal and Torres Strait Islander people highlighting the importance of protection and conservation of Country’; and
inter-generational equity – which ‘provides that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for future generations’.
Rights of Aboriginal and Torres Strait Islander people
6.110The AHRC’s HRA model proposes to reflect the rights of Aboriginal and Torres Strait Islander peoples in the following way, subject to further consultations with Aboriginal and Torres Strait Islander peoples:
a ‘participation duty’, to reflect principles of self‑determination through practical measures by public authorities (see chapter 7);
the inclusion of cultural rights, non‑discrimination rights and ICESCR rights to ensure the incorporation of key UNDRIP rights;
a standalone cause of action, with capacity for organisations to bring claims on behalf of communities, ‘recognising the collective aspect of these rights’;
a requirement to list in statements of compatibility steps taken to ensure that participation of Aboriginal and Torres Strait Islander peoples has occurred, where relevant;
a clause enabling human rights in the HRA to be interpreted in light of UNDRIP where the rights of Aboriginal and Torres Strait Islander people have been affected;
the right to self-determination articulated in a preamble to the HRA as an overarching principle of the instrument.
6.111In its final Free and Equal report, the AHRC considers that additional steps (to those set out above) should be taken to implement the rights of Aboriginal and Torres Strait Islander peoples, including ‘through the introduction of a National Plan to implement UNDRIP, national and regional representative mechanisms to ensure participation in decision making, and the implementation of the Uluru Statement from the Heart’. Other steps proposed in its Free and Equal 2022position paper include adding the UNDRIP to the definition of ‘human rights’ in the Human Rights (Parliamentary Scrutiny) Act2011, reforming the race power in the Constitution, improving anti-discrimination legislation to strengthen protections for First Nations peoples, adequate resourcing of Aboriginal-controlled organisations, and the fulfilment of Closing the Gap framework targets in order to practically realise rights over time.
6.112As to specific rights, in addition to a general cultural right, the AHRC model proposes to include cultural rights as they relate to Aboriginal and Torres Strait Islander peoples. The AHRC proposes the following wording:
Cultural rights — First Nations peoples
(1) First Nations peoples hold distinct cultural rights.
(2) First Nations peoples must not be denied the right, with other members of their community—
(a) to enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings; and
(b) to enjoy, maintain, control, protect, develop and use their language, including traditional cultural expressions; and
(c) to enjoy, maintain, control, protect and develop their kinship ties; and
(d) to maintain and strengthen their distinctive spiritual, material and economic relationship with the land, territories, waters, coastal seas and other resources with which they have a connection under Aboriginal tradition or Island custom; and
(e) to conserve and protect the environment and productive capacity of their land, territories, waters, coastal seas and other resources.
(3) First Nations peoples have the right not to be subjected to forced assimilation or destruction of their culture.
6.113The AHRC states that these cultural rights implement article 27 of the ICCPR and are reflected in, and should be interpreted in light of, the UNDRIP. It notes that the proposed wording reflects sections 27 and 29 of the Queensland HRA, explaining that ‘[c]onsultation input indicated that the Queensland section is preferable as it is the most comprehensive articulation of cultural rights, and separates general cultural rights from First Nations cultural rights’.
6.114As to how these cultural rights could apply in practice, the AHRC states that they ‘could be utilised to ensure that a child removed from their family or held in detention is able to maintain connection with kin and culture. This right could also be used to challenge the proposed destruction of cultural heritage sites by public authorities’.
6.115A large number of submitters supported the inclusion of specific rights with respect to Aboriginal and Torres Strait Islander people, modelled on those rights contained in the UNDRIP. The NSW Aboriginal Land Council, for instance, submitted that the UNDRIP ‘must underpin the development of national and state-based Human Rights legislation to ensure the protection of the rights of Aboriginal peoples’. The Australian Lawyers Alliance submitted that a federal HRA ‘provides a unique opportunity’ for the government to codify the UNDRIP into law and in doing so, it would ‘better represent and protect the rights of Aboriginal and Torres Strait Islander peoples’. Submitters emphasised, however, that any such law reform must be undertaken in consultation with, and with the free, prior and informed consent of, Aboriginal and Torres Strait Islander peoples. The Law Council of Australia, for example, submitted:
In the federal jurisdiction, the Law Council also recommends that provisions of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) be incorporated as appropriate into a new Human Rights Act. Key principles of UNDRIP, such as ‘free, prior and informed consent’, ought to be incorporated into relevant provisions of the Human Rights Act, including those protecting cultural rights and property.
The Law Council acknowledges that the implementation of UNDRIP is not straightforward, given that international instruments other than treaties may not support enactment under the external affairs power. However, in the Law Council’s view, other heads of power should suffice to support such enactment.
The Law Council urges appropriate consultation be conducted with First Nations peoples before deciding on the best way to incorporate it into a Human Rights Act.
6.116The NSW Aboriginal Women’s Advisory Network also submitted that:
In the process of enacting a federal Human Rights Act there must be serious and genuine consultation by the Government with Aboriginal and Torres Strait Islander peoples. This consultation must respect the rich history of Aboriginal peoples as the longest continuous living culture in the world, and as the first peoples of Australia. The consultation must also acknowledge the disproportionate impact of human rights breaches on Aboriginal and Torres Strait Islander peoples in Australia.
6.117The Victorian Aboriginal Child Care Agency (an Aboriginal Community Controlled Organisation) further recommended that the preamble to a federal HRA recognise the ‘historical and ongoing injustices and human rights abuses experienced by Aboriginal people’ and the ‘distinct collective rights of Aboriginal people consistent with the UNDRIP’.
6.118Submitters were generally supportive of the AHRC’s proposed inclusion of cultural rights, including cultural rights specific to Aboriginal and Torres Strait Islander peoples. The Indigenous Law and Justice Hub highlighted the importance of recognising distinct Indigenous cultural rights, submitting:
While all people have cultural rights, Aboriginal and Torres Strait Islander peoples cultural rights manifest in specific ways based on the elements of their cultural life as custodians of the oldest living culture on earth, such as rights relating to caring for and maintaining relationship to Country.
6.119The Human Rights Law Centre submitted that incorporating cultural rights in a federal HRA ‘would be a powerful, and enforceable, way of ensuring the Australian government makes good on its word to respect Aboriginal and Torres Strait Islander culture, heritage and Country’ and would ‘clearly signal that cultural rights are part of the broader human rights framework’. The Australian Lawyers Alliance further submitted that alongside cultural rights, including a right to the protection of cultural heritage, a federal HRA should incorporate the principle in article 19 of the UNDRIP, which requires States to consult with indigenous peoples in order to obtain their free, prior and informed consent before adopting and implementing measures that may affect them. They argued that the destruction of the Juukan Gorge by Rio Tinto in 2020 exemplified the need for proper consultation with Aboriginal and Torres Strait Islander peoples in order to identify and protect culturally important sites.
6.120Many submitters were supportive of the AHRC’s other recommendations, including incorporating a participation duty. The participation duty is discussed in more detail in chapter 7.
6.121With respect to the right to self-determination, as noted above, the AHRC HRA model proposes including the right as an overarching principle within a preamble, rather than as a stand-alone right. The right to self-determination, which is a right of 'peoples' rather than individuals, includes the right of peoples to freely determine their political status and to freely pursue their economic, social and cultural development. It is contained in common article 1 of the ICCPR and ICESCR as well as article 3 of the UNDRIP, and has particular relevance for Aboriginal and Torres Strait Islander peoples in Australia. The AHRC does not recommend including the right to self-determination as a stand-alone right ‘because of the vagueness and complexity of the term, and the associated potential difficulties with litigating collective self-determination claims in court’. The AHRC notes that previous attempts to incorporate a right to self-determination in state and territory HRAs were not successful due to a ‘lack of clarity’ in relation to its potential application and a ‘lack of consensus’ as to the content of the right. Instead, the preambles of the ACT, Queensland and Victorian HRAs all recognise the special importance of human rights for First Nations peoples. For example, the ACT HRA preamble states:
Although human rights belong to all individuals, they have special significance for Aboriginal and Torres Strait Islander peoples—the first owners of this land, members of its most enduring cultures, and individuals for whom the issue of rights protection has great and continuing importance.
6.122The AHRC further notes that the UN Human Rights Committee only has jurisdiction over individual complaints and cannot adjudicate the right to self-determination due to its collective nature, although it can seek reports from States parties on the protection of the right. For these reasons, the AHRC considers ‘that an approach that adopts key constituent parts of self-determination, and operationalises them, may be preferable to including a distinct “right to self-determination”’. Notwithstanding this conclusion, the AHRC does acknowledge that a right to self-determination could be practically implemented in a HRA if it was articulated as a ‘process right’:
Self-determination is focused on free pursuit and free choice. Since it does not prescribe a ‘type’ of outcome, it can be construed as a ‘right of due process’. Self-determination as a ‘process right’ is the articulation by which it could be practically implemented into a Human Rights Act. Participation standards and processes can be embedded within different public and administrative bodies as a requirement under the Human Rights Act. The fairness, representativeness and adequacy of participation processes are capable of being brought before a court and assessed through objective criteria, through the lens of UNDRIP.
6.123Additionally, the AHRC recommends a participation duty, which would reflect principles of self-determination. This duty is discussed in detail in chapter 7. As to the relationship between a participation duty and the right to self-determination, the AHRC explains that:
Processes of participation are a tool by which to realise the principle of self-determination and associated Indigenous rights. This is because these processes realise other objectives, including economic, social and cultural outcomes.
…Self-determination must be viewed as a continuing process and participation should underpin all laws and policies that seek to affect, enhance or diminish First Nations’ rights.
6.124The AHRC considers that the participation duty and protection of rights relating to self-determination, such as cultural rights, would help to ‘operationalise self-determination in a manner that can lead to practical outcomes’. The AHRC reiterates, however, that:
…ultimately, the question of how best to reflect principles of self-determination should be a matter for First Nations peoples, and recommends that this proposal be considered subject to deeper consultations.
6.125However, many submitters supported the inclusion of the right to self-determinationin a federal HRA. Some submitters expressly advocated for the inclusion of the right to self-determination as a stand-alone right. The Foundation for Aboriginal and Islander Research Action (FAIRA), for example, recommended the ‘right of the Aboriginal and Torres Strait Islander Peoples to self-determination be defined and enshrined in legislation’. The NSW Aboriginal Women’s Advisory Network submitted that the right to self-determination should be included in line with articles 3 and 4 of the UNDRIP.
6.126The Indigenous Law and Justice Hub submitted that ‘self-determination remains paramount to the aspirations of Indigenous peoples’ and a federal HRA ‘must support self-determination, either as a distinct right in itself or through various rights which underpin self-determination’. It supported the AHRC’s other proposals with respect to a participation duty and an interpretive principle (which would require interpretation of the provisions in light of the UNDRIP), but argued that ‘these welcome measures do not amount to anything close to a realisation of the right to self-determination for Indigenous peoples’. The Indigenous Law and Justice Hub argued that failing to realise the right to ‘self-determination will negatively impact the realisation of the individual rights of Indigenous peoples’, noting that self-determination is a foundational right –the ‘river in which all other rights swim’. It concluded that the specific content of the right, as articulated in a federal HRA, must ultimately be informed by consultation:
Consultation with Aboriginal and Torres Strait Islander peoples will identify what self-determination should look like in the federal Charter and the institutional architecture supporting it. Consultation must be widespread, culturally appropriate, and deliberate. A Charter which is nurtured through First Nations Communities will be a more effective instrument.
We must be upfront about what self-determination is and halt the watering-down of this important principle; participation duties must not be equated with self-determination.
6.127The Human Rights Law Centre endorsed the Indigenous Law and Justice Hub’s submission with respect to the inclusion of the right to self-determination. It argued that a lack of respect for the right to self-determination has thus far led to an ‘extraordinary level of federal government intervention’ in the lives of Aboriginal and Torres Strait Islander people, such as ‘the Government’s disastrous remote work-for-the-dole program and income management schemes’. The Human Rights Law Centre acknowledged that while a federal HRA cannot ‘undo the effects of colonialism, and adequately honour the right to determination of Aboriginal and Torres Strait Islander people’, it ‘can go some way to restraining ongoing and future interventions by governments into the lives and affairs of Aboriginal and Torres Strait Islander people’.
6.128Further, many submitters highlighted the indivisibility of human rights and the need to protect a broad range of rights in order to protect the rights of Aboriginal and Torres Strait Islander peoples. With respect to the right to a healthy environment, for example, the Human Rights Law Centre submitted:
The right to a clean, healthy and sustainable environment is inseparable from the rights to culture, health and self-determination for Aboriginal and Torres Strait Islander people. All of them must be protected to fully realise Aboriginal and Torres Strait Islander people’s rights. The drafting of the right in a federal Charter, should explicitly recognise this relationship for Aboriginal and Torres Strait Islander people.
6.129The ESCR Network also recommended that the right to a healthy environment include ‘specific language recognising the unique reciprocal relationship of Aboriginal and Torres Strait Islander peoples to lands and waterways and the related right to free, prior and informed consent in relation to any proposed projects that might impact their territories’.
6.130Other submitters highlighted the intersectionality of the rights of children and Aboriginal and Torres Strait Islander people. SNAICC (Secretariat of National Aboriginal and Islander Child Care, a national peak body Aboriginal community-controlled organisation), for example, submitted that:
Human rights, including children’s rights, are interconnected, inalienable and indivisible, unable to be considered in isolation or delivered only in part. As such, any Human Rights Act in Australia must reflect the unique set of rights for Aboriginal and Torres Strait Islander children in full by explicitly referencing and protecting all of the rights set out in the UNCRC, UNCRDP and the UNDRIP, and reflecting the special measures required to protect the rights of Indigenous children. SNAICC supports the addition of these rights to the rights currently proposed in the Australian Human Rights Commission Position Paper.
The rights of the child
6.131Children have special rights under human rights law taking into account their particular vulnerabilities. Children's rights are protected under a number of treaties, particularly the Convention on the Rights of the Child (CRC). All children up to the age of 18 years are guaranteed these rights, without discrimination on any grounds. Children would be entitled to all of the rights in the proposed HRA, but the rights of the child would be especially protected in the AHRC’s HRA model in the following way:
The rights in the proposed Human Rights Act would apply to children, via the interpretive lens of the CRC. Some rights in the Human Rights Act are drawn directly from the CRC and focus on children (for example, children’s rights in the criminal process).
6.132In particular, the AHRC HRA model includes the following rights under the heading ‘protection of children’:
(1) Every child has the right, without discrimination, to the protection that is needed by the child by reason of being a child.
(2) Public authorities shall take into account the best interests of every child as a primary consideration in all actions concerning them.
(3) Every child shall be registered immediately after birth and shall have a name.
(4) Every child has the right to acquire a nationality.
6.133The AHRC explains that the above rights incorporate article 24 of the ICCPR and article 3 of the CRC and should be interpreted in light of article 10(3) of the ICESCR. Additionally, the AHRC’s model proposes to protect the rights of children in the criminal process, including:
(1) A child charged with or convicted of a criminal offence must be segregated from adults charged with or convicted of a criminal offence.
(2) A child charged with a criminal offence must be treated in a way that is appropriate for a person of the child’s age who has not been convicted.
(3) A child charged with a criminal offence must be brought to trial as quickly as possible.
(4) A child charged with a criminal offence has the right to a procedure that takes account of the child’s age and the desirability of promoting the child’s rehabilitation.
(5) A child who has been convicted of an offence must be treated in a way that is appropriate for a person of the child’s age.
(6) Children should only be imprisoned as a last resort and for the shortest necessary period of time.
6.134The above rights seek to implement articles 10 and 14 of the ICCPR and article 37 of the CRC, and the wording is partially based on equivalent sections in the Victorian, Queensland and ACT HRAs.
6.135In addition to the protection of specific rights, the AHRC proposes to ‘directly reflect two overarching CRC principles in the Human Rights Act through the participation duty’, stating that this is necessary to ‘adequately reflect key elements of the CRC and ensure cohesive protection of children’s rights’. These two principles are the best interests of the child and the right to be heard, protected in articles 3 and 12 of the CRC respectively. Article 3 provides that in all actions concerning children, the best interests of the child shall be a primary consideration. It also requires States parties to ensure the child such protection and care as is necessary for their well-being and that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities. The UN Committee on the Rights of the Child has explained that:
…the expression "primary consideration" means that the child's best interests may not be considered on the same level as all other considerations. This strong position is justified by the special situation of the child.
6.136Article 12 provides children who are capable of forming their own views the right to express those views freely in all matters affecting them. The views of the child must be given due weight in accordance with the age and maturity of the child. In particular, the child must be given the opportunity to be heard in any judicial and administrative proceedings affecting them, either directly or through a representative body.
6.137The AHRC explained that it proposes to include the best interests principle as a distinct child’s right as well as incorporating it into the participation duty alongside the right to be heard. The participation duty ‘would require that public authorities consider these principles when making decisions concerning children and their rights, and to enable participation by both an individual child subject to a decision, and groups of children where policy and laws are being made that affect their rights’. The participation duty is further discussed in chapter 7.
6.138Several submitters advocated for the inclusion of all rights set out in the CRC. UNICEF Australia, for example, submitted that:
…our federal Human Rights Act should be as comprehensive as possible, particularly for children given the unique nature of their needs including increased vulnerability when compared with adults. Although there may be challenges in the full expression of these rights in a federal Human Rights Act, including associating direct remedies with specific rights, they can likely be overcome, particularly when viewed within the context of our federal Human Rights Act as more than an expression of legal rights – it is an expression of the things we as a society value most, which must surely include children.
6.139The Victorian Equal Opportunity and Human Rights Commission also supported ‘broadening the notion of children’s rights [in any federal HRA] to recognise the right to participation commensurate with their age and maturity, in line with the Convention on the Rights of the Child.’ Good Sheperd Australia New Zealand further recommended explicitly referencing the core guiding principles of the CRC, including the best interests of the child, the right to survival and development, the right to express views on all matters affecting them, and the right to enjoy all rights of the CRC without discrimination. The AHRC model proposes to include some of these guiding principles, including the best interests of the child and the right to equality and non-discrimination.
6.140Some submitters emphasised the need to protect the rights of other distinct groups, particularly Aboriginal and Torres Strait Islander peoples, having regard to the intersectional experiences and needs of children. For instance, SNAICC submitted that:
Aboriginal and Torres Strait Islander children and young people have a distinct set of rights and the only way to fully protect these is to specifically acknowledge them as a concept and ensure they are explicitly named and incorporated in human rights instruments. Aboriginal and Torres Strait Islander children’s rights include those owed to all children as well as their unique rights as Indigenous Peoples.
6.141UNICEF Australia also submitted that the full spectrum of rights set out in the CRC and in the UNDRIP should be protected, stating:
This inclusion would recognise the significant intersection between the rights of children and the rights of Aboriginal and Torres Strait Islander peoples, the importance of a child’s right to culture as an enabler for the access of all their rights, and the specific attention needed on the rights of Aboriginal children who continue to face unacceptable disparities in life outcomes.
6.142Save the Children and 54 reasons (a child rights organisation) submitted that a federal HRA should protect all rights in the CRC and the UNDRIP (beyond those already included in state and territory HRAs) as well as explicitly recognising the government’s responsibility for upholding children’s rights and ‘addressing the root causes and underlying conditions leading to children’s rights being violated’, such as poverty and the impacts of climate change. They stated that:
…in some cases, these matters may not be able to be readily expressed as specific rights that are, in themselves, amenable to specific direct remedies of the type available for other rights. Nonetheless, they are essential preconditions for children’s rights to be respected, protected and fulfilled in Australia, and the international human rights framework to which Australia is committed makes it very clear that the Australian Government is responsible for addressing them. This should be explicit in a federal Human Rights Act.
6.143Further, Save the Children and 54 reasons recommended protecting children’s participatory rights in line with the CRC. As to the adequacy of the AHRC’s proposed participation duty, they submitted that:
In principle, a ‘participation duty’ on public authorities in a federal Human Rights Act, along with appropriate guidelines and other supporting material, as proposed by the AHRC in its position paper could contribute to these requirements being met, supported by other provisions and mechanisms.
6.144The National Justice Project submitted that in addition to those rights listed in the ARHC’s 2022 Free and Equal position paper, a federal HRA should address the following issues (although it did not specify how these issues should be addressed in federal HRA or propose wording as to additional rights that should be included):
Seeking asylum is not a crime and refugee and asylum seeker children under 18 years must not under any circumstances be detained in immigration detention facilities.
Specifically address raising the minimum age of criminal responsibility to an ‘internationally acceptable level’ of a minimum of 14 years, in line with repeated calls from the Committee on the Rights of the Child, and reiterated by the Universal Periodic Review in 2021.
Specifically address the overrepresentation of First Nations people, including children and young people, in the legal system due to discrimination and bias in policing, the courts and the health, social service and legal systems more broadly.
Specifically address the overrepresentation of First Nations children in out-of-home care (OOHC) resulting from systemic discrimination in health, social service and legal systems.
6.145Additionally, several submitters raised concerns with Australia’s reservation to article 37(c) of the CRC and recommended that the reservation be withdrawn. Article 37(c) provides that:
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.
6.146Australia has made the following reservation with respect to this right:
Australia accepts the general principles of article 37. In relation to the second sentence of paragraph (c), the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia, therefore, ratifies the Convention to the extent that it is unable to comply with the obligation imposed by article 37(c).
6.147Regarding this reservation, Save the Children and 54 reasons observed:
Australia has historically refused to be bound by this obligation, and continues to detain children in adult facilities and with adults in violation of the standard that the article requires. Australia has previously argued that the country’s geography and demography make it difficult to always detain children in juvenile facilities while also allowing them to maintain contact with their families. The UN and Australia’s peers have repeatedly criticised Australia for its reservation.
6.148Indeed, the UN Committee on the Rights of the Child has consistently recommended Australia consider withdrawing its reservation, particularly given Australia’s ‘acceptance of the principle of separation and the existence in [Australia]…of many facilities separating children from adults’.
6.149Submitters further recommended Australia ratify the Third Optional Protocol to the CRC, which would enable children to raise concerns about their rights directly with the UN. Save the Children and 54 reasons submitted that Australia’s failure to do so thus far ‘reflects poorly on Australia’s commitment to children’s rights and to international human rights norms and UN engagement, and denies children in Australia access to this ultimate forum for upholding their rights’. UNICEF Australia argued that by ratifying the protocol, ‘Australia could show a renewed and more ambitious commitment to children’s rights’.
Rights of people with disabilities
6.150The Convention on the Rights of Persons with Disabilities (CRPD) reaffirms that all persons with disability are guaranteed all human rights without discrimination, including those rights set out in other human rights treaties. The CRPD ‘clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced’. While the AHRC HRA model does not specifically incorporate the rights contained in the CRPD, the general rights proposed for inclusion would apply to people with disability, as these rights must be guaranteed to all people without discrimination. In the AHRC’s final Free and Equal report, it noted that the CRPD as well as other ‘thematic treaties’ would be ‘reflected through the inclusion of a clause that requires the Human Rights Act to be interpreted in light of international human rights instruments’, which would include the CRPD.
6.151Additionally, the AHRC considers that its proposed participation duty would be a means of realising key procedural elements of the rights contained in a HRA in relation to people with disability (as well as First Nations peoples and children). As to what this participation duty would require, the AHRC explains
Individual persons with disability should be supported to make their own decisions in all aspects of their lives, and public authorities should have processes in place to facilitate supported decision making. When decisions have an impact upon people with disabilities as a group, persons with disability, including through their representative organisations, should be consulted as part of the process.
6.152The AHRC further notes in its 2022 Free and Equal position paper that a participation duty would specifically embed certain rights protected in the CRPD, including the ‘right to equal recognition before the law (Article 12) and the overarching principle of “full and effective participation and inclusion in society” for people with disability’. The AHRC’s complementary ‘equal access to justice duty’ would also, among other things, require ‘public authorities to provide sufficient access to legal assistance, interpreters and disability support to individuals navigating the justice system’. These two procedural duties are further discussed in chapter 7.
6.153Further, the AHRC notes that since its 2022 Free and Equal position paper, the Disability Royal Commission released its final report, which included a recommendation for a Disability Rights Act. The object of such an Act would be to ‘respect, protect and fulfil all rights in the CRPD, as well as the rights of First Nations people with disability not specifically articulated in the CRPD’. With respect to the AHRC’s proposed HRA model, the Disability Royal Commission stated:
…a Commonwealth Human Rights Act and reforms to anti-discrimination laws in the general terms proposed by the AHRC have the potential to enhance human rights protection for all Australians, including people with disability.
Regardless of whether a Commonwealth Human Rights Act is ultimately enacted, we consider more specific and tailored protections are required for people with disability through the enactment of a DRA [Disability Rights Act]. Specific provisions tailored to the rights of people with disability are required to address the decades of disadvantage and mistreatment people with disability in Australia have experienced.
6.154In response to the Disability Royal Commission’s recommendation for a Disability Rights Act, the AHRC stated:
The individual rights and obligations proposed by the Disability Royal Commission [DRC] to be included in a DRA [Disability Rights Act] have, for the most part, been incorporated in the Commission’s proposal for a Human Rights Act.
There are 2 proposals by the DRC that require further consideration in relation to the Commission’s model Human Rights Act:
a specific right to live free from violence, abuse, neglect and exploitation, consistent with Article 16 of the CRPD
a positive duty to promote disability equality and inclusion.
The Commission considers that the right to be free from violence would form part of the interpretation of rights included in the model Human Rights Act. For example, the right to non-discrimination and equality for persons with a disability, as well as specific measures to support persons with disability experiencing violence being included within rights to social security, adequate housing and health.
Similarly, a duty to promote disability equality will fall within the 3 elements of the positive duty proposed in the Commission’s model – relating to equal access to justice, effective participation and the general positive duty.
Nonetheless, these recommended actions could be included more explicitly in the model Human Rights Act – either through explanatory materials to the Human Rights Act or as standalone provisions.
The DRC’s recommendations could be implemented through the legislative drafting stage of the Human Rights Act
6.155Much of the evidence received by the committee responded to the AHRC’s proposed HRA model as set out in its 2022 Free and Equal position paper. The final reports of the AHRC and the Disability Royal Commission were not released until after the call for submissions closed. As such, the question of whether a Disability Rights Act is needed in addition to a federal HRA was not addressed.
6.156Several submitters advocated for the inclusion of specific rights for people with disability, as set out in the CRPD, in addition to those rights proposed by the AHRC. People with Disability Australia, for example, submitted that the CRPD should be expressly incorporated in a federal HRA, either by ‘individually listing each CRPD right or by reference to incorporation of the CRPD into the legislation’. It stated:
To ensure the full rights of people with disability are captured in national human rights legislation, the Government must expressly incorporate our CRPD rights rather than relying on the ICCPR and ICESCR as some governments have done in other jurisdictions.
Expressly incorporating the CRPD in national human rights legislation will also help parliaments, courts, public servants and the public understand our specific rights, and ensure that old conceptualisations of disability are not applied. It will provide people with disability a clear enunciation of our rights and confirm that they form part of Australian law.
6.157People with Disability Australia further recommended that the government engage ‘an international human rights law expert to examine and identify which rights and components of rights in the CRPD are subject to immediate realisation’ and work with disability representative organisations to identify which rights should be prioritised for incorporation in a federal HRA, acknowledging that ‘a phased approach will be necessary’. People with Disability Australia was also supportive of an interpretation provision, requiring decision-makers to consider international human rights law jurisprudence, such as the CRPD Committee’s General Comments, in interpreting a HRA. An interpretive provision is part of the AHRC’s proposed model and is discussed further in chapter 7.
6.158The Victorian Equal Opportunity and Human Rights Commission also supported specific recognition of the rights of people with disability, as articulated in the CRPD. It submitted that these rights ‘should include respect for individual autonomy, the right to enjoy legal capacity on an equal basis with others, and protection of the integrity of the person’.
6.159All Means All submitted that the right to inclusive education protected under article 24 of the CRPD should be explicitly included within the right to education in a federal HRA. It reasoned that a reference to the general right to education is not sufficient because of the need to specifically encompass ‘inclusive equality’:
…in light of our experience and expertise in this area and the experiences of our stakeholders, our view and recommendation differ from the AHRC Submission, in that we consider that there is a need to go beyond merely requiring a general right to education that ought to be interpreted in light of Article 24 of the CRPD, given the risk that the specific rights to education of students with disability as one of the most marginalised and disadvantaged groups who nonetheless are estimated to comprise a significant proportion of all students, will continue to be overlooked. In addition, recognition of a right to inclusive education should enable people with disability to bring specific complaints related to the failure to access inclusive education.
6.160All Means All (a multi-stakeholder organisation working towards the implementation of an inclusive education system) further recommended that the right to education ‘reference and incorporate the rights to education of cultural and linguistic minorities, recognised under a range of international human rights instruments applicable to Australia, such as…the UNDRIP, which is relevant to First Nations people’.
6.161As to other specific rights to include, Mr Geoff Rowe, CEO of Aged and Disability Advocacy Australia, gave evidence that a HRA must ‘include a requirement for supported decision-making to become part of the landscape for those people who have impaired or questioned capacity’. He stated that ’the fact that someone has limited capacity should not exclude them from experiencing the same human rights protections as the rest of the community’. The right to be supported to exercise legal capacity is derived from article 12 of the CRPD, which reaffirms the right of people with disability to recognition everywhere as persons before the law and the right to enjoy legal capacity on an equal basis with others in all aspects of life. While the ICCPR protects the right to equality before the law, the CRPD elaborates on the content of this right as it relates to people with disability.
6.162In addition, a number of submitters argued that Australia should withdraw its interpretive declarations with respect to certain rights in the CRPD. As noted above, Australia has made interpretive declarations with respect to the rights to legal capacity, respect for physical and mental integrity and liberty of movement under the CRPD. The UN Committee on the Rights of Persons with Disabilities has recommended that Australia review and withdraw its interpretive declarations and has raised concerns about Australia’s lack of progress with respect to this ‘urgent’ measure. The Australian Federation for Disability Organisations, for instance, echoed the UN Committee’s recommendation and submitted that Australia’s interpretive declarations ‘allow for the continuation of outdated laws, practices and policies that are in breach of Australia’s obligations under the CRPD’.
Older persons
6.163The AHRC’s proposed HRA model does not specifically reference the rights of older persons nor does its Free and Equal reports. Emeritus Professor Rosalind Croucher, President of the AHRC, acknowledged that while the rights of older persons were not specifically included, ‘it does not mean that they are excluded from the ambit of the model’, as human rights apply to everybody:
In our protections already we have an Age Discrimination Act which specifically implements the ideas that would be embraced to some extent in a convention on the rights of older people. We have certain areas of federal responsibility, like aged care, that are captured in our model. Older people may not be expressly mentioned as a dot point, but they are by no means excluded from the embrace of the ideas.
6.164Some submitters raised concerns about the AHRC’s lack of consideration of the specific rights of older persons and advocated for the inclusion of such rights in a federal HRA. The Australian Human Rights Institute submitted that the rights of older persons are systematically violated, as evidenced by the findings of the Royal Commission into the Quality and Safety of Aged Care, and that existing domestic laws have failed to effectively protect the rights of older persons. Emeritus Professor Andrew Byrnes, appearing on behalf of the Australian Human Rights Institute, elaborated on this, stating:
In the context of widespread, documented and largely accepted ageism and institutional and systemic age discrimination and exclusion in many areas in our country, a human rights act that does not explicitly include references to older persons' human rights fails our community—something which seems extraordinary in light of the recent experience at the height of the COVID pandemic. Part of the reason for this silence is that, as has already been mentioned, there is no comprehensive international framework or convention on the human rights of older persons, unlike in other areas.
6.165The Australian Human Rights Institute considered that:
The lesson to be drawn from international and national experience is that there needs to be explicit reference to older person and older age in any general bill of rights and also that such charters should contain rights which are tailored specifically to the circumstances faced by specific subgroups of older persons such as older women, older persons with disabilities, older LGBTQI+ people or older indigenous persons (among other groups).
In the absence of an agreed comprehensive and coherent international catalogue of relevant rights such as those that exist in other areas, it is difficult to provide a definitive list of particular rights or specifically tailored provisions. Nevertheless, the discussion at the United Nations Open-ended Working Group on Ageing and the Human Rights Council, the United Nations Principles for Older Persons 1991, regional treaties on the subject (in particular the Inter-American Convention on Protecting the Rights of Older Persons) and the Madrid International Plan of Action on Ageing 2002 (to the implementation of which Australia has committed) provide some guidance.
6.166The Australian Human Rights Institute considered that the following rights of older persons should be considered for inclusion in a HRA:
1. The right not to be subjected to discrimination in any field on the basis of ageism of age discrimination
2. The right to autonomy and independence
3. The right to be free from torture and other cruel, inhuman treatment (including in relation to restrictive practices)
4. The right to be free from elder abuse, including financial abuse
5. The right to life-long learning and education
6. The right to continue to work without discrimination on the basis of older age
7. The right to reasonable accommodation in terms and conditions of employment
8. The right to economic security, including necessary social support
9. The right to live independently and in the community and to have access to the financial and other forms of support required to make this possible.
10. The right to freedom of movement and an accessible physical and social environment
11. The right to digital inclusion and the right of access to public and other services in various formats
12. The right to palliative care
13. The right to access technology and the benefits of other scientific developments
14. The right to be included in decision-making about matters that affect older persons, including but not limited to disaster and emergency planning.
6.167The Australian Human Rights Institute further recommended that a HRA ‘provide protection against intersectional or multiple bases of discrimination’. It also urged the ‘government to support the elaboration of a new United Nations convention on the human rights of older persons and engage actively and constructively in the United Nations processes considering this matter’.
6.168Professor Catherine Renshaw, a member of the Organising Committee of Rights of Older Persons Australia, also acknowledged the difficulty in identifying a specific list of rights with respect to older persons due to the lack an international thematic convention. Nonetheless, she considered such a list could be developed, stating:
We lack a coherent body of universally recognised rights that apply to older people. A lot of work has been done, particularly in the past 15 years, at the international level, to pull together the sorts of rights that you would need to articulate as being relevant to the rights of older people. They would include…rights to freedom of movement that are currently jeopardised by the current systems of restraints we have that apply to older people, rights to privacy, rights to digital inclusion, social and economic rights, rights to adequate standards of food and access to health care, for example. There shouldn't just be rights not to be discriminated against in relation to those things; there should be rights to the highest possible standard of enjoyment of those rights as well. It is possible to bring together a list of rights that would apply specifically to older persons and to people as we age.
6.169Professor Renshaw further noted that while the other core human rights treaties, such as the ICCPR and ICESCR, apply to older persons, they do so in ‘very different and specific ways; they are currently being avoided, breached and overlooked, but they need to be clearly stated as they apply to older persons’.
6.170As to whether there would be possible constitutional concerns arising from the fact that there is no thematic convention on the rights of older persons, Professor Byrnes considered that the lack of a specific treaty would not be ‘fatal’:
It makes the task much harder, as we have seen with the reforms of the Aged Care Act; the royal commission was really struggling with that. The government's formal position is that there are no gaps: the existing norms cover everything that needs to be said. I think that is not quite right. If we work through each of the individual rights, we are not so much asking for new rights; we are saying that older people have all the human rights which are guaranteed in the instruments. But just like people with disability, children, and other groups, some of these rights need to be spelt out in more detail as to how they apply. For example, the right to housing for older people, their right to live where they want, needs to be spelt out in cases where they need care and support at home, or where they need some form of institutional living or alternative. There is a sufficient argument to interpret each of these provisions to apply to most of the circumstances, but it involves more effort than if we had a convention which dealt exactly with these issues tailored to the circumstances.
6.171Ms Kate Eastman AM SC, a barrister and expert in human rights law, agreed that the absence of a specific treaty would not preclude the addition of rights relating to older persons in a HRA. She stated that the reference to ‘any other status’ in the context of the right to equality and non-discrimination (article 26 of the ICCPR) encompasses older persons and this right can be used as a basis for federal anti-discrimination legislation. Additionally, Ms Eastman noted that the rights of older persons is a ‘matters of international concern that has been raised with Australia in its engagement with the UN Human Rights Council and its engagement on its human rights practices generally’. Ms Eastman further pointed to the Age Discrimination Act 2004 as an example of legislation with respect to the rights of older persons:
We've had an age discrimination act since 2004 and there have been complaints to the Federal Court. I'm not aware that anyone has sought to challenge the validity of our Age Discrimination Act on the basis that we don't have an international convention. Again, sometimes for an exercise like this I don't think we should start on the basis that it's never been looked at before. We wouldn't have had an age discrimination act unless the Commonwealth felt it had sufficient heads of power to enact that law.
6.172Professor George Williams AO, a constitutional law expert, was similarly of the view that there were constitutional bases for legislating with respect to the rights of older person, although he considered that the rights contained in the core treaties would be sufficient.
Rights of victim-survivors of crime
6.173Some submitters recommended adding specific rights for victim-survivors of crime in a federal HRA. The Queensland Human Rights Commission, for instance, made such a recommendation, stating that several rights proposed for inclusion, such as the rights to fair hearing, privacy and freedom of expression, can be applied to victims of crime. It referred to the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,which provides that ‘victims should be treated with compassion and respect for their dignity, and are entitled to access mechanisms of justice and prompt redress as provided for by national legislation, for the harm that they have suffered’, and noted that:
…promoting rights for victims is an attempt to address the persistent difficulties experienced by institutions and professionals to adequately meet the expectations of victims of crime. Having violence inflicted on them and experienced victimisation separates victims from their usual place in society. It disrupts the sense of trust and belonging people generally (though variably) have in others.
6.174The Queensland Human Rights Commission further referred to the Victorian Law Reform Commission’s 2016 recommendation that:
…the Victorian Charter of Human Rights and Responsibilities Act 2006 be amended to include a right for a victim of a criminal offence to have certain specific minimum guarantees, including to be acknowledged as a participant with an interest in the proceedings, to be treated with respect at all times, and to be protected from unnecessary trauma, intimidation, and distress when giving evidence.
6.175The Queensland Human Rights Commission further noted that the Queensland government has committed to considering whether to include victims’ rights in the Queensland HRA.
6.176knowmore (a free, independent legal service for survivors of child sexual abuse) also recommended that a federal HRA ‘should include specific protection for the rights of victims and survivors of crime, taking state and territory victims’ rights charters in Australia as a starting point’ for considering what rights to protect. Likewise, Women’s Legal Service NSW submitted that the rights of victim-survivors should be better recognised, including the right to live free from discrimination on the basis of being a victim-survivor of gender-based violence. In order to effectively protect this right, Women’s Legal Service NSW argued that the status of ‘being a victim-survivor of gender-based violence’ should be included as a protected attribute for the purposes of the right to equality and non-discrimination. As to the importance of including this status, Women’s Legal Service NSW submitted:
Victim-survivors who are subjected to gender-based violence can experience discrimination in areas of public life such as employment, education and housing and accommodation. For example, a woman may lose work or have their employment terminated as a result of a perpetrator harassing her at her workplace.
Including the status of being a victim-survivor of gender-based violence as a protected attribute would also play an important role in educating and raising awareness within the wider community about gender-based violence, and, we hope, fostering more empathetic approaches to people who are, or who have experienced it. It would also serve an important normative function, acknowledging that the harm experienced by victim-survivors can be exacerbated by negative or prejudicial attitudes and inflexible policies.
We believe that specific protection is required to protect women from discrimination on the basis of their experience of gender-based violence in areas of public life. Securing this right is vital to ensuring women’s right to equality under Article 3 of the ICCPR, in addition to the rights protected under CEDAW.
6.177Women’s Legal Service NSW further recommended adding the ‘right of victim-survivors to be treated with dignity and compassion in the legal process’ and considered that this ‘can be done so by extending to them the [AHRC’s proposed] duty of equal access’. For a discussion of the equal access duty see chapter 7.
6.178Further, the Australian Centre for International Justice (a specialist legal centre working to develop Australia’s capacity to investigate and prosecute atrocity crimes) argued that the rights of victims of international crimes should be reflected in a federal HRA:
In determining the content of a Human Rights Act for Australia, regard must be had to incorporation of provisions on the rights of victims (including of international crimes), and the jurisdictional scope must be wide enough for these victims to seek recourse under the Act’s complaint and claim mechanism where their complaints or claims have a sufficient link to Australia. This would help to bring the Commonwealth’s approach to victims of crime in line with the general practice in Australian States and Territories and international human rights standards.
How rights are to be realised
6.179A related consideration when thinking about what rights to protect is how such rights are to be realised. This consideration is particularly relevant with respect to economic, social and cultural rights as well as other rights such as the right to a healthy environment (which incorporates elements of both civil and political, as well as economic, social and cultural, rights). Under international human rights law, civil and political rights are generally considered to be capable of immediate realisation, whereas most economic, social and cultural rights may be progressively realised, meaning that States parties have some flexibility in terms of the timing for realisation of these rights given that they require resources from the State party in order to be fulfilled. States parties have an obligation to progressively realise these rights to the maximum of the State party's available resources. The UN Committee on Economic, Social and Cultural Rights explained the meaning of this obligation:
The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time…Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.
6.180Nevertheless, there are some obligations in relation to economic, social and cultural rights which have immediate effect. These require the government to:
take ‘deliberate, concrete and targeted’ steps, by all appropriate means, towards full realisation of the rights;
satisfy, at the very least, certain minimum aspects of the rights (known as minimum core obligations);
ensure that people enjoy economic, social and cultural rights without discrimination; and
adhere to certain process requirements by ensuring accountability and transparency in decision making and to ensure people can access relevant information and constructively participate in decisions that affect them.
6.181The UN Committee on Economic, Social and Cultural Rights has emphasised that the obligations to guarantee all rights without discrimination and to take steps by all appropriate means towards full realisation of rights are of particular importance. The ESCR Network also argued that the obligation on States parties to use the maximum available resources is of immediate effect:
It is of the utmost importance to understand that the obligation of progressive realisation applies only where the state has run out of resources to fulfil the right in question. It is distinct from the obligation to use the maximum available resources. The obligation to use maximum available resource is an immediate obligation. It is only when resources are not available that a state may progressively work toward full realisation of ESCRs.
6.182As the economic, social and cultural rights scheme is built on the premise of continual improvement (or progressive realisation) in enjoyment of these rights, any ‘retrogressive measures’ (or backwards steps) are a particular type of violation that is immediately identifiable. The presumption against retrogressive measures means that States parties cannot unjustifiably take deliberate steps that negatively affect the enjoyment of existing economic, social and cultural rights. As a type of limitation, retrogressive measures may be permissible under international human rights law providing that they are shown to address a legitimate objective, are rationally connected to that objective and are a proportionate way to achieve that objective. Whether a retrogressive measure is permissible will depend on the State party proving that it first carefully considered all alternative measures, including looking at the competing priorities presented by the range of economic and social rights and in the context of the full use of the maximum available resources. The UN Committee on Economic, Social and Cultural Rights has stressed that where retrogressive measures are adopted, the ‘burden of proof rests with the State party’ to justify their permissibility.
6.183As noted above, the AHRC proposes that all rights in a HRA be subject to immediate realisation, including economic, social and cultural rights. The AHRC explains that in order to ensure constitutionality, it proposes framing economic, social and cultural rights more narrowly to include ‘essential, core and/or immediately realisable aspects’ of these rights and not requiring ‘progressive realisation principles to be considered by the courts’. The AHRC reasons that removing the principle of progressive realisation:
…acknowledges the importance of providing certainty that the implementation of ICESCR is constitutional, suitably adapted for the Australian context, and directly enforceable by the courts. It also recognises the importance of providing sufficient clarity about the contents of rights – both for the benefit of judges and public authorities interpreting and applying the rights; and for the benefit of individuals that seek to rely upon them through complaints and judicial review processes.
…
Importantly, the Commission’s articulation of ICESCR rights is designed to accord with the Commission’s proposal for including a direct cause of action for unlawfulness under the Human Rights Act. This reflects its intention to ensure that the courts can review rights compliance, and that a right to remedy is available for individuals where breaches have occurred.
6.184The AHRC considers that progressive realisation of economic, social and cultural rights ‘occurs primarily outside of the courts’ and would be best addressed through a human rights framework that included human rights legislation and national targets and measurable indicators – analogous to the Closing the Gap framework. It states:
Progressive realisation is most relevant to ‘upstream’ decision making about policy and resourcing. In relation to this process, the culture of the public sector, external oversight measures and parliamentary scrutiny mechanisms are key elements towards ensuring compliance. These forums would provide opportunities to address the progressive realisation aspects of key rights, and are well suited to addressing overarching, systemic policy concerns. For example, the Commission could have a role in reporting on the progressive realisation of ICESCR rights. This would help to ensure that progressive realisation remains part of [the] picture, even if it is not relevant to the work of courts or with respect to the individual claims made under the Human Rights Act.
6.185Mr Darren Dick, Senior Policy Executive of the Australian Human Rights Commission, elaborated on the AHRC’s approach to progressive realisation, explaining the approach as being both ambitious and conservative at the same time:
It's ambitious in that it's broader in its coverage than any of the state human rights acts and indeed the New Zealand and the UK models as well. But it's also conservative, because we've made a very explicit decision, which is on page 128 of the [2022 Free and Equal position]paper, that we are prioritising there being a direct cause of action for all the rights that are included here, and that once you broaden that out into other issues around progressive realisation, you start getting into questions about whether you have different pathways for different rights and those types of things, which we thought was not the way to go.
6.186Mr Dick emphasised that ‘the progressively realisable elements of the economic, social and cultural rights are often going to sit outside the judicial process’.
6.187The AHRC model notes that similar approaches had been adopted in comparable international jurisdictions, such as the UK, and that the ACT and Queensland HRAs had also ‘taken a similar qualified approach to ICESCR rights’. The ACT HRA, however, does incorporate the principle of progressive realisation with respect to certain aspects of economic, social and cultural rights. For example, with respect to the right to work, the ACT HRA includes notes stating that aspects of these rights ‘are considered at international law to be subject to an obligation of progressive realisation’ and provides examples of international law jurisprudence to assist in the interpretation of progressively realisable rights. With respect to the right to education, the ACT HRA specifies which aspects of the right is immediately realisable. Further, the Human Rights (Healthy Environment) Amendment Bill 2023 proposes to apply these notes (which clarify that some aspects of the rights are progressively realisable) to all economic, social and cultural rights in the ACT HRA, which includes the rights to education and work, and possibly the right to a healthy environment. The explanatory memorandum states that this amendment reflects the distinction between immediate and progressive obligations under international human rights law.
6.188While the AHRC’s HRA model would not require the courts to consider the principle of progressive realisation, it does propose that Australia should not take unjustified retrogressive measures with respect to the right to a healthy environment. The prohibition on retrogressive measures under international human rights law is the corresponding duty to the obligation on states parties to take steps to progressively realise rights. The AHRC explains that this element of the right to a healthy environment reflects ‘overarching ICESCR principles to avoid retrogressive measures’. The AHRC’s Free and Equal reports do not specifically address whether the presumption against retrogressive measures would extend to other economic, social and cultural rights proposed for inclusion in a HRA.
6.189The committee received evidence in support of the AHRC’s proposed approach to progressive realisation. National Legal Aid, for example, agreed with the AHRC’s approach to framing economic, social and cultural rights, submitting:
…in terms of the expression of economic and social rights that are directly enforceable under the Human Rights Act, at this time we agree with the AHRC proposed approach that suchrights will need to be expressed in a more prescriptive manner than they are under the ICESCR to ensure there is clarity in their application and that such provisions are constitutionally sound.
6.190The Human Rights Law Centre took a slightly different view, submitting that it:
…agrees with the AHRC’s position that progressive realisation principles are not inherently non-justiciable. Nonetheless, as a first step for legislating these rights, we believe that economic, social and cultural rights should be framed in the federal Charter so as to give them specific content, and confining the court's role to the consideration of whether the government's action was reasonable within the available resources.
6.191The Bonavero Institute of Human Rights (at the University of Oxford) acknowledged that there are a range of ways in which economic, social and cultural rights can be progressively realised, noting that ‘[d]irect legal enforcement is not the only option’. It recommended that the approach to be adopted to the progressive realisation of economic, social and cultural rights be informed by five principles:
The first principle is that, in the case of those human rights that impose positive obligations, legislation should be passed stipulating the benefits that will be provided by government to fulfil the rights and a process provided through which those benefits can be obtained.
The second principle is that government needs to ensure that state agencies tasked with fulfilling human rights are properly resourced and function responsively, effectively, and openly.
The third principle is that government needs to provide an effective process for monitoring the implementation of the rights and the budgetary allocation for that implementation.
The fourth principle is that government should consider a pluralistic model for rights enforcement involving parliamentary committees, courts, tribunals, and integrity institutions such as ombuds and human rights commissions.
The fifth principle is for government to identify what institutional provision will be made for circumstances where government fails to act progressively to realise rights.
6.192Economic Justice Australia considered that progressive realisation obligations may be reviewed through the courts but ‘can also be monitored through other accountability measures, such as through national indicators and benchmarks within a policy framework, Parliamentary scrutiny measures, public sector oversight, and annual departmental reporting’. It recommended that economic, social and cultural rights be framed to reflect their articulation in international law, including the obligation of progressive realisation. With respect to the right to social security, it submitted that:
There should be a direct cause of action, that at least encompasses the minimum core elements of the right, alongside measures to ensure progressive realisation of the right, including through ongoing monitoring and reporting against set human rights indicators.
6.193Other submitters more firmly argued that economic, social and cultural rights should be progressively realised, as well as there being obligations of immediate realisation with respect to the core elements of these rights. The ESCR Network, for instance, recommended that a HRA should ‘include justiciable economic, social and cultural rights, including obligations of progressive realisation that go beyond existing state and territory human rights laws’. It considered that ‘it is possible to find clear, meaningful content within the standard of progressive realisation (even in the context of genuine resource scarcity)’. The ESCR Network pointed to the South African Constitutional Court as a ‘leading example of developing a distinct jurisprudence around the concept of progressive realisation’.