Chapter 7A Human Rights Act model
7.1This chapter considers the legislative features that a federal Human Rights Act (HRA) could include, including those governing how a HRA would operate, who it would apply to, how it would be enforced and what remedies would be available.
7.2In 2022, the Australian Human Rights Commission (AHRC) proposed a comprehensive HRA model in its position paper Free and Equal: A Human Rights Act for Australia, underpinned by a lengthy consultation process. The committee sought evidence in relation to what elements a federal HRA should include, including by reference to the AHRC’s model. Several submitters to this inquiry endorsed the AHRC’s proposed model as a whole. Many commented on distinct legislative features that a federal HRA, as canvassed by the AHRC, could include. These comments are set out below.
The dialogue model
7.3The AHRC model proposes that a federal HRA should be based on a dialogue model. That is, one in which a HRA sets out the human rights to be protected, and provides each arm of government (the legislature, executive and judiciary) a distinct role in relation to its application and enforcement, thereby facilitating a ‘dialogue’ between them. It requires the executive to act in a manner consistent with human rights in its decision making; permits the federal courts to determine whether legislation is incompatible with the HRA and if a public authority has acted compatibly with human rights; requiring Parliament to determine whether to amend that legislation, while retaining its power to pass laws that override human rights should it choose to.
7.4This proposal reflects that of the National Human Rights Consultation in 2009, which formed the conclusion that a dialogue model ‘strikes the best balance between parliamentary sovereignty and judicial protection of human rights’. Both the National Human Rights Consultation and AHRC noted that potential features of a dialogue model may raise constitutional challenges, but observed that these may be addressed by careful drafting.
7.5Numerous submitters endorsed the proposal that a federal HRA reflect a dialogue model. Professor Sarah Joseph, a professor of human rights law, noted that existing state and territory HRAs adopt a dialogue model, with specific roles for the legislature, executive and judiciary. In this regard, the Australian Capital Territory (ACT) Government stated that it has had positive experiences with the dialogue model and recommended its adoption at the federal level. Dr Julie Debeljak, Associate Professor of Law, similarly stated that modern human rights instruments establish an inter-institutional dialogue between the arms of government about the definition, scope and limits of democracy and human rights: ‘With such models, all arms of government have a legitimate and constructive role to play in interpreting and enforcing the guaranteed human rights; and no arm has a monopoly over human rights’. The Law Council of Australia similarly stated that a dialogue model of human rights is widely accepted and largely settled.
7.6By contrast, Professor Ben Saul, the Challis Chair of International Law at the University of Sydney (and current United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism), described a legislative ‘dialogue’ model as the ‘poor cousin of a constitutional bill of rights’, but stated that he supported it if a constitutional bill of rights were not possible.
Jurisdiction
7.7The AHRC model proposes that a HRA should protect all people within Australia’s territory and all people subject to Australia’s jurisdiction without discrimination, meaning that it should apply to citizens and non-citizens. As to its geographical application, the AHRC proposed that a HRA apply in relation to people in Australia’s territory, and those subject to Australia’s jurisdiction (including when they are located overseas):
It is established in international jurisprudence that the human rights obligations of a State extend to persons who are outside of the State’s territory, but within the State’s jurisdiction, due to being ‘under the effective control’ of the State. Determining whether ‘effective control’ exists involves the application of a factual test, to prove either ‘control over persons’ or ‘control over territory’. For example, Australia’s offshore immigration detention centres have been recognised as falling under Australia’s ‘effective control’ by international Treaty bodies. A Human Rights Act should include individuals under Australia’s ‘effective control’ overseas in order to fully implement Australia’s international obligations.
7.8The AHRC noted that similar forms of extraterritorial jurisdiction already exist in Australian federal law and are exercised by federal entities, citing the power of the Commonwealth Ombudsman to perform functions in relation to immigration and detention, including oversight of offshore processing sites, and certain federal criminal conduct subject to extraterritorial jurisdiction for conduct that has a sufficient nexus with Australia. Numerous submitters supported this approach. The Australian Centre for International Justice posited that care should be taken to ensure that the jurisdiction of a HRA was not unduly limited in a way that would prevent victims of international crimes from seeking recourse under the Act. It stated that victims of Australia’s international crimes may in many cases reside outside Australia and argued that the jurisdictional test should require only that the complaint or claim have a nexus with Australia.
7.9The AHRC model further proposes that, noting Australia’s constitutional structure and the existing human rights laws in some states and territories, a federal HRA should only apply to federal laws and federal public authorities. It provides that any legislation would need to be clear that it is not intended to override state and territory laws, noting that, pursuant to section 109 of the Constitution, where state laws are incompatible with federal laws, the state law is invalid to the extent of the inconsistency. It noted the advice of the then Solicitor-General Stephen Gageler AC to the National Human Rights Consultation in 2009 that this could be dealt with by a ‘concurrency provision’, meaning a provision that makes clear that a federal HRA is intended to operate concurrently with state law:
The result would be effectively to limit situations of inconsistency under s109 of the Constitution to cases of direct inconsistency: where the State law in its legal or practical operation would otherwise operate to alter, detract from or impair the limited operation given to the right by the [Act] … In a case of direct inconsistency, the State law would be invalid to the extent, but only to the extent, of the direct inconsistency.
7.10The ACT Government stated that it supported the use of a concurrency provision to allow the ACT Human Rights Act 2004 (ACT HRA) to continue operating unaffected by the introduction of federal human rights protection laws. It stated that a concurrency provision would ensure that: ACT protections remain intact in the event that the federal law is more restrictive than existing provisions; the scope of territory rights will apply in the event a federal HRA does adopt the same rights; and the ACT retains the power to expand protections consistent with the promotion of human rights.Commissioner, Dr Helen Watchirs, stated:
I think we have the model of the discrimination legislation, where our state and territory legislation is allowed to operate concurrently. I know the federal government covers the field, but that's operated cooperatively quite well. The Australian Council of Human Rights Authorities gets together twice a year to talk about issues of common interest. That's a good mechanism for making sure the systems work well together.
7.11The Law Council of Australia also supported this approach, adding that states and territories which do not have a HRA could be encouraged to adopt mirror legislation for national consistency. By contrast, Australian Feminists for Women’s Rights argued that a federal HRA should logically supersede and take precedence over existing state and territory HRAs, arguing that this would be appropriate as ‘Australia’s human rights obligations are without exception a national and not a state matter’.
Duty on public authorities
7.12The AHRC model proposes that a federal HRA should establish a positive duty on public authorities and two procedural duties. The positive duty would require public authorities to act in a way that is compatible with the human rights included in the HRA, and to give proper consideration to those rights when making decisions. The procedural duty would have two limbs, operating as an aspect of the binding positive duty. The first limb would incorporate a binding procedural obligation to engage in participation processes where a decision disproportionately affects the rights of Aboriginal or Torres Strait Islander people, people with disability, or children. The second limb would impose a positive duty on public authorities to realise access to justice principles, for example by providing sufficient access to legal assistance, interpreters and disability support to people navigating the justice system. The AHRC proposed that this duty would apply to public authorities, and to private business, non-government organisations and contractors where they are performing public functions.
Who are public authorities?
7.13The AHRC model proposes that ‘public authorities’ should be defined flexibly, to encompass both core public authorities (meaning authorities that are always public authorities), and ‘functional’ public authorities (meaning bodies that has functions of a public nature when exercising those functions on behalf of the State, including private business, non-government organisations and contractors).
7.14The AHRC model proposes that a public authority would mean:
A public body with powers or functions under Commonwealth law, including:
Government agencies, departments, offices;
Regulatory and administrative bodies, Commissions and Ombudsmen, statutory corporations;
Federal police and national security agencies;
Commonwealth Ministers;
Tribunals;
Courts when acting in an administrative capacity, and where the Act applies to the court’s own procedures; and [discussed below]
State public authorities when exercising Commonwealth functions.
a private entity whose functions are, or include, functions of a public nature when it is performing functions of a public nature (whether under contract or otherwise);
an individual employed or appointed by or to any these bodies when exercising powers or functions under a Commonwealth law or performing functions of a public nature; or
an entity declared by the regulations to be a public authority.
7.15Under the AHRC model a public authority would not include:
the Parliament of Australia, except when acting in an administrative capacity;
the courts, except when acting in an administrative capacity, and where the Act applies to the court’s own procedures; or
an entity declared by the regulations not to be a public authority.
7.16In deciding whether a function is of a public nature, the AHRC proposed that the following matters should be considered:
whether the function is conferred on the entity under a statutory provision;
whether the function is connected to or generally identified with functions of government;
whether the function is of a regulatory nature;
whether the entity is publicly funded to perform the function; or
whether the entity is a government owned corporation.
7.17The AHRC also sets out a list of functions that should specifically be listed to be of a public nature, including the operation of prisons and other places of detention or correctional facilities under control of the federal government; the provision of federal public health and disability services and education; emergency services; federal public housing; and aged care services.
7.18Numerous submitters agreed with this approach. The Law Council of Australia agreed, while highlighting comments from the Victorian Bar that the definition of a public authority must be sufficiently clear to enable courts to hold all service providers to account, noting that some lack of clarity under the Victorian Charter of Human Rights and Responsibilities Act 2006 has produced anomalous results, and arguing that the definition from the Queensland Human Rights Act 2019 (Queensland HRA) is to be preferred. The Law Council of Australia’s own view was that it is logical for a federal HRA to apply to entities with obligations under the Public Governance, Performance and Accountability Act 2013, and related Commonwealth integrity and accountability-related legislation, though it may apply to a broader range of entities.
7.19Australian Lawyers for Human Rights agreed that a HRA should provide a non-exhaustive list of factors and indicia that may indicate if an organisation is performing a function of a public nature, and should be defined to include functions of a regulatory nature. They submitted that the operation of regulatory schemes governing the licensing, accreditation or regulation of non-government service providers ‘is a mechanism by which government can secure human rights compliance from non-government service providers undertaking contracted-out services’:
A similar provision in a federal HRA would mean that the regulatory body governing the provision of aged-care services, currently the Australian Aged Care Quality and Safety Commission (‘the Commission’), would have obligations to act compatibly, and make decisions that are compatible, with the rights protected in the federal HRA. Accordingly, in fulfilling its own public authority human rights obligations, the Commission would need to include requirements for human rights compliance as a precondition for licensing or industry accreditation, including requirements for annual reporting of human rights compliance by organisations in order to maintain their licensing or accreditation status. A failure to adhere to required human rights standards would have adverse consequences for the organisations themselves, including possible cancellation of contracted arrangements or punitive responses from the regulator. Similarly, the National Disability Insurance Scheme Quality and Safeguards Commission would have obligations to act compatibly, and make decisions which are compatible, with the rights protected in the federal HRA.
7.20The AHRC model proposes excluding courts from the definition of ‘public authorities’. However, some submitters disagreed with excluding courts as core public authorities. The Hon Pamela Tate AM KC submitted that there are, in principle, good reasons why courts should be captured by the definition, because courts are institutions of the state and their conduct should be compatible with human rights. She noted that under the United Kingdom HRA, courts have the status of public authorities, meaning that the United Kingdom Human Rights Act 1998 has both a ‘vertical’ effect (creating legal remedies for individuals against the State), and a ‘horizontal’ effect (whereby human rights legislation influences legal relations between private parties). This horizontal effect arises because the courts, as public authorities, are required to ensure that the law they apply is compatible with human rights, regardless of whether the parties to the litigation are public or private. Ms Tate posited that a concern arises as to whether the result of courts being public authorities ‘is that they may develop the common law in unsettled or unpredictable directions’, something which she argued may be addressed by an express exclusion of the development of novel causes of action between private parties in reliance on a federal HRA. Professor Melissa Castan, Director of the Castan Centre for Human Rights Law, agreed that there would be constitutional issues to be addressed, but which could be resolved. Associate Professor Julie Debeljak also submitted that, subject to constitutional considerations, courts and tribunals should be included in the definition, noting that as ‘courts and tribunals will have human rights obligations in relation to rights-compatible interpretation of statutory law under a federal human rights instrument, it is odd and incomplete to not impose similar obligations on courts and tribunals in the development of the common law’. Australian Lawyers for Human Rights submitted that the concern about a unified common law does not arise for a federal HRA and did not agree that defining public authority to include the courts in their own right would offend the Constitution. They emphasised the importance of including the courts in the definition so as to require the courts to develop, interpret and apply the common law in a manner consistent with human rights values.
7.21The AHRC model also proposes allowing delegated legislation to be made to clarify when entities are not considered to be public authorities. Some submitters raised concerns with this, noting that the use of such power in Victoria has effectively become an exemptions power. Dr Bruce Chen noted that the exemption of the Victorian parole board from the operation of the Charter provides a cautionary tale:
Initially, this was to allow Victorian parole boards ‘an extended time to prepare themselves for Charter compliance’. These exemptions have continued to be extended since the Victorian Charter fully commenced operation over 15 years ago.
7.22The AHRC proposed that business and organisations should be able to voluntarily opt in to accept responsibility to comply with a HRA. Liberty Victoria submitted that the ACT and Queensland due diligence ‘opt-in’ schemes had resulted in limited engagement by private entities. However, the ACT Government noted that, in its jurisdiction, seven private entities have elected to opt-in to its public authority obligations. Several submitters argued that there should be legislated, clear and unambiguous obligations that apply to private entities, through a positive duty to undertake and report on human rights due diligence, rather than an ‘opt-in’ clause for businesses to comply with human rights voluntarily. For example, KPMG submitted that Australia’s human rights framework should include a HRA which imposes ‘clear and unambiguous human rights due diligence obligations’ on Australian businesses to better align with emerging international leading practice. It highlighted, in particular, the UN Guiding Principles on Business and Human Rights, which affirm that businesses have a responsibility to respect human rights, which includes preventing or mitigating adverse impacts related to their operations and value chain.
Positive duty
7.23The AHRC model proposes that a federal HRA should establish a duty on public authorities to act in a way that is compatible with the human rights included in the HRA, and to give proper consideration to those rights when making decisions: There are therefore two elements to this duty that operate cumulatively, that public authorities must:
give proper consideration to human rights when making decisions (which must be more than a checklist exercise); and
act compatibly with human rights.
Failure by a public authority to comply with this duty would be enforceable by the courts (see the discussion regarding remedies below).
7.24The AHRC described the potential effect of an enforceable positive duty:
The positive duty…builds on the developing understanding of human rights over more than 10 years of engagement in the Parliamentary scrutiny process involving statements of compatibility and review by the PJCHR. The integration of human rights considerations into the processes of public authorities should make officials more aware of the impacts of their decisions, and therefore help to prevent human rights breaches. If the Human Rights Act is working well, it has an upstream impact within the day-to-day processes of government, and the court has a less prominent role addressing downstream breaches, through the possibility of litigation.
The positive duty would support decision makers to consider human rights in a way that is more appropriate to individual circumstances, rather than taking a blanket approach when making a decision that affects a person’s rights and freedoms.
7.25It posited that a positive duty should result in ‘a transformative cultural shift within government’, making rights protection ‘a core part of government business, not just an afterthought’. President of the AHRC, Emeritus Professor Rosalind Croucher, described the intended effect as being a duty ‘to get it right in the first place by developing policies and framing decisions through the lens of human rights’.
7.26Several submitters and witnesses expressed support for the inclusion of a positive duty. Ms Lauren Henley, Senior Systemic Advocate at the Australian Federation of Disability Organisations, discussed the potential effect of such a duty in relation to services provided to people with disability, expressing hope that a positive duty would lead workers to undergo human rights training and professional development before entering roles with the National Disability Insurance Scheme (NDIS) to help improve a ‘culture of low expectations’.
7.27Under the AHRC model, consistent with the HRAs in Victoria, ACT and Queensland, the positive duty would not apply if the public authority could not reasonably have acted differently or made a different decision in accordance with the law. This means that if a law, such as an Act of Parliament, requires the decision-maker to take certain actions (for example, mandatory visa cancellation under the Migration Act 1958) the duty on the public authority to act compatibly with human rights or consider human rights would not apply. Mr Sean Costello, Principal Lawyer with the Queensland Human Rights Commission, drew attention to the practical limits of a positive duty, noting that if a law requires a public authority to act in a manner that breaches human rights, then a positive duty would not require it to act in a manner compatible with human rights:
[C]ommon across all three of the state and territory human rights acts, a defence for a public entity contravening that obligation is that—the first test to assess if the entity is acting compatibly is if it's acting lawfully. Human rights can only be limited by a public agency if they're acting in accordance with the law…[A]s a result, there is a defence provided—it's in section 58(2) of our act—which says that if the act legislation you're acting under gives you no discretion, you have no choice but to act compatibly, and that's not a contravention of the act.
Associate Professor Julie Debeljak noted that from a parliamentary sovereignty perspective, this exception is necessary, as if Parliament retains the right to enact rights-incompatible legislation, public authorities should not be considered to be behaving unlawfully for implementing that law. However, from a human rights perspective, if a law is rights-incompatible, such that a public authority may rely on it not to act in accordance with the positive duty, an individual may still seek to rely on a rights-compatible interpretation of the law under the interpretative provision of the HRA (see the discussion of the interpretative provision below).
Participation duty
7.28The AHRC model proposes that a positive duty should also incorporate a binding procedural obligation to engage in participation processes where a decision disproportionately affects the rights of Aboriginal or Torres Strait Islander people, people with disability, or children. It posited that this participation duty would be part of the ‘proper consideration’ limb of the positive duty.
7.29The AHRC proposed that a participation duty would include both a binding and non-bonding component:
The participation duty would primarily operate as a duty on public authorities (the Executive). It would also apply to proponents of legislation in a different respect.
This duty would be binding on public authorities with obligations under the Human Rights Act. It would require public authorities to ensure the participation of First Nations peoples, children and persons with disability in relation to decisions that directly or disproportionately affect their rights. It would operate as a cross-cutting duty, meaning it would be relevant to the fulfilment of all the rights in the Human Rights Act. If a public authority has failed to comply with this duty in relation to a decision affecting a particular right, this would point to a breach of the positive duty to ‘properly consider’ human rights in decision-making.
This duty would also include a non-binding requirement for proponents of legislation to facilitate participation during the law-making process and to reflect what participation measures were undertaken in statements of compatibility. This would also be subject to scrutiny by the Parliamentary Joint Committee on Human Rights. Failure to engage in or report on participation to Parliament would not affect the validity of the instrument in question.
7.30The AHRC noted that international law requires specific participation measures to be undertaken regarding decisions affecting the rights of these groups, and stated that a participation duty ‘would be a means of realising key procedural elements of the existing rights in the Human Rights Act, in relation to these three groups’. In this regard, it stated that some groups in society may not always have their views adequately reflected in law, policy and administrative decision-making processes, because they may not be at the forefront of political considerations. This applies particularly to minority groups and those lacking sufficient political power to have their voice heard, or groups who experience barriers to participation related to vulnerabilities experienced by those groups (for example, children, who are unable to vote). It argued that specific and regular participation processes are necessary to ensure that vulnerable and marginalised groups are considered by policymakers and administrators on matters that affect their rights.
7.31The AHRC also argued that proponents of laws and policy that affect human rights often fail to consult certain groups in the development process, which causes problems down the line in the application of the policy, resulting in economic costs, and possible infringement of Australia’s obligations to protect the rights of vulnerable members of the community. In this regard, it stated that the AHRC has identified that a common factor with laws and policies that breach human rights is that they were developed without the participation of groups most impacted by those policies.
7.32The AHRC stated that participation should be characterised by several features: being active, free, meaningful and accessible; being a process, not a one-time event; embedded systemically into government decision making; and influencing subsequent decisions. It further stated that participation encompasses consultation with representative organisations, or spokespeople, where a decision will have an impact on the rights of multiple individuals within a specific group, and includes a procedural fairness dimension, ensuring individuals participate in decisions that directly affect their own lives:
The participation duty would require the embedding of processes to realise individual participation, representative participation and collective rights of participation, with the first arising in relation to specific administrative decisions impacting an individual, and the latter two requiring consultation on legislative, regulatory and policy development that affect the rights of people who fall within a particular group…The participation duty would not mean that every individual has a right to participate – rather government must identify who it has engaged in consultations, why that was appropriate in the circumstances, and how the consultation is connected to and impacts the reform in question.
7.33A significant number of witnesses and submitters supported the inclusion of a participation duty. For example, the Progressive Law Network stated that it ‘unreservedly supports the AHRC’s recommendation for the inclusion of a procedural ‘participation duty’, so that those most affected by housing policies can have an active role in their processes’. It posited that a participation duty could have particular value with respect to the realisation of economic, social and cultural rights, highlighting an observation by the UN Committee on Economic, Social and Cultural Rights that‘one of the root causes of violations of economic, social and cultural rights [is the] limited involvement of non-governmental organisations in public policymaking’.
7.34However, several submitters argued that the AHRC’s proposed participation duty did not go far enough. National Legal Aid expressed concern that the requirement to consult with these groups only when decisions and policies ‘directly or disproportionately affect their rights’ would unnecessarily limit the duty to consult with these groups and would not necessarily be consistent with international human rights obligations. It noted that, for example, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) requires consultation with Indigenous peoples in relation to measures ‘that may affect them’, and the Convention on the Rights of the Child requires that children (both individually and collectively) who are capable of forming their own views be given the right to express them ‘in all matters affecting’ them, arguing that the right can be presumed to extend to matters that indirectly or proportionately affect their rights. It also suggested that the procedural duties may provide an opportunity to develop an established process of reporting and training from the relevant AHRC Commissioners to the executive and its public authorities.
7.35Emeritus Professor Chilla Bulbeck argued that consideration should be given to extending the ‘participation duty’ to other vulnerable groups or groups with a keen interest in particular issues, for example the transgender community’s engagement with sex-change surgery, and Australians from different cultural and gender identities and states of health in relation to the structure of, and services in, aged care or nursing homes. The Coalition of Activist Lesbians Australia submitted that lesbians are an under-served group with significant intersecting rights who are not being given adequate consultation rights ‘because the dominant position of LGBTQ+ organisations…do not allow for a diversity of views outside their closed ‘Trans’ umbrella’. Australian Feminists for Women’s Right raised similar concerns in relation to consultation with women.
7.36The Environmental Defenders Office argued that the participation duty should require public authorities to ensure the effective participation of all people who are most at risk of experiencing environmental harm in addition to Aboriginal and Torres Strait Islander people, children, and people with disability, such as women, people who are financially disadvantaged, older people, people from a racial, ethnic or other minority, people displaced by natural disasters, culturally and racially marginalised communities, and LGBTIQA+ communities. Environmental Justice Australia argued that a generalised participation right should be coupled, within the right to a healthy environment, with clear articulation of Australia’s duties in relation to free, prior and informed consent for Aboriginal and Torres Strait Islander people and the associated UNDRIP participation principles.
7.37Several submitters highlighted the importance of monitoring carefully the extent to which a participation duty may be successful. The Indigenous Law and Justice Hub stated that the success of this process-based measure for protecting Indigenous rights ‘would rely on the robustness of the processes and resources put in place for consultation’. Save the Children and 54 Reasons made a similar observation in relation to the rights of children to participate in decisions relating to them. Deafblind Australia likewise highlighted the importance of the quality and efficacy of consultation being undertaken in purported compliance with a participation duty:
It’s not just about what they do but how they do it. How they conduct their consultation must be shown to be informed by the needs of the group they wish to engage. Assessing people’s meaningful inclusion in consultation cannot be left to government as they lack the requisite skills and knowledge to determine this. How can a department that knows nothing about Deafblindness hold a consultation using interpreters whose skills they cannot assess or comment on to transmit information in a language they don’t understand, and then make a determination about how meaningfully someone has been included?
7.38The Law Council of Australia stated that, while a participation duty is a significant human right, it noted that this would be a novel addition to a HRA, and stated that it would need to further consider the implications of such a duty were it introduced. The AHRC also acknowledged that a participation duty would be a novel addition, but noted that this model is directly informed by similar laws and practices existing in the common law and democratic jurisdictions in different contexts, including existing participation models, traditional common law rights, and the treaties ratified by Australia. The ACT Government stated that because the proposal for a participation duty in relation to specific groups of people draws on international human rights law standards, such a duty is already a feature in the ACT’s human rights framework, despite not being expressly recognised. It commented that if a participation duty were to be adopted federally, this would present an opportunity to reflect on whether this express statement improves engagement with these cohorts of people. The Queensland Human Rights Commission supported the inclusion of a participation duty, but suggested that public entities ‘would benefit from further clarity about when and how the duty arises, and how entities would be held accountable’. It recommended that the AHRC develop guidance material on how public entities would discharge this duty in various circumstances, including where consultation with multiple people and groups is needed, suggesting that it could refer to existing Australian Government frameworks, such as the APS framework for engagement and participation.
Equal access to justice duty
7.39The AHRC model also proposes a complementary ‘equal access to justice duty’ for public authorities, which would mean that public authorities have a positive duty to realise access to justice principles. ‘Access to justice’ is an umbrella concept associated with the rule of law, common law principles and several human rights (in particular, the right to a fair hearing, the right to an effective remedy, equality before the law and non-discrimination).
7.40The AHRC model proposes that such a duty would require that public authorities take active steps 'to ensure the provision of key elements of a functioning justice system’:
Specifically, it would be the role of public authorities to provide sufficient access to legal assistance, interpreters and disability support to individuals navigating the justice system and engage in justice related proceedings.
This duty would create an obligation to meet minimum requirements associated with the right to a fair hearing, overlayed by non-discrimination principles that require the provision of certain key supports and services within the justice system to protect equality before the law. This is a principle that ensures equal access to justice for those who face particular barriers to such access. The purpose of this duty is not only to codify, but to strengthen and support key principles established by common law courts,…by linking them to positive human rights obligations as defined by international law. The duty would embed non-discrimination principles into planning and policy by public authorities associated with the justice system.
7.41It proposes that the duty should encompass, at a minimum:
access to legal representation in criminal matters, involving the provision of publicly funded lawyers in criminal trials for people who cannot afford one; and
non-discrimination regarding access to legal services and courts in both civil and criminal matters (involving the provision of: interpreters where required; supports including accessible court facilities and procedural accommodations to ensure equal participation of persons with disability in legal proceedings; specialist children’s advocates/lawyers; and support for culturally safe legal services).
7.42In this regard, the AHRC notes that access to legal representation is a key element of access to justice and often necessary for the achievement of other rights, but outlined the patchy manner in which such access is currently provided for in criminal matters in practice.
7.43The AHRC model explains that while these principles may inform the application of procedural rights that already apply in the court room, they would not impose a ‘duty’ on courts because the duty is ‘primarily a positive obligation to ensure that the justice system is properly resourced to carry out its function, so that individuals are able to access justice on an equal basis with others, which is a function of government, rather than the judiciary’.
7.44A significant number of witnesses and submitters supported the inclusion of an equal access to justice duty.
7.45The Australian Child Rights Taskforce stated that it supported such a duty in principle, highlighting the additional barriers to access to justice experienced by children, which it argued ‘extend beyond the limitations of the legal and justice systems and require additional training and resources including but beyond that for the legal profession’. Similarly, National Legal Aid noted that the content of the equal access to justice duty, interpreted with reference to the international instruments, may extend to procedural accommodations and to promoting appropriate training for those working in the field of administration of justice.
7.46Women’s Legal Service NSW considered the equal access duty should include the ‘right of victim-survivors to be treated with dignity and compassion in the legal process’. It submitted that similar procedural rights that are afforded to the accused should be guaranteed to victim-survivors, including access to interpreters, legal representation and ‘gender-based violence and trauma informed, culturally safe support services’. A duty of equal access should also ‘include allowing the participation of victim-survivors in the criminal legal process where decisions are being made that directly impact them, for instance bail decisions’. Women’s Legal Service NSW argued that a HRA ‘which embeds a duty to equal access for victim-survivors in the criminal legal process, in addition to the duty towards defendants, sends a clear message that the voices and experiences of victim-survivors are important’.
7.47In relation to non-criminal matters, the AHRC notes that legal aid in civil and family matters is not a right guaranteed under international law and as such the AHRC is not including this as a requirement of the proposed access to justice duty. Nonetheless, it noted that legal aid in such matters is often essential for the realisation of a person’s human rights. In this respect, it highlighted relevant jurisprudence from the European Court of Human Rights that extended the application of the right to a fair trial to include legal aid in the determination of civil rights and obligations:
In the 1979 case, Airey v Ireland, the ECtHR recognised that there was no duty to provide free legal aid in all civil matters. However, Article 6 ‘may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court’, including by reason of the complexity of the procedure or of the case, the capacity and means of the litigant, and the importance of the case. This ruling was grounded in the procedural right to access courts, rather than the procedural rights guaranteed by a criminal trial.
7.48The AHRC noted that while there may be no right to free legal assistance in civil cases, there should still be a requirement to ensure that where civil and family legal assistance is available, it is equally accessible in accordance with the non-discrimination principle.
7.49Women’s Legal Service NSW acknowledged that the AHRC model does not extend the duty to civil and family law matters, but submitted that a duty should extend in such cases that involve substantial human rights issues:
An inability to access legal assistance (referring broadly to free legal advice, advocacy and/or representation) in civil and family law matters, or appropriately participate in the court process due to procedural deficiencies, can have serious human rights implications for women and children, impacting the right to be free from gender-based violence, the right to civil redress for gender-based violence, the right to life, the right to family and the right to shelter, among others.…[T]he lack of funding for women who have experienced gender-based violence in family law, immigration law, discrimination and employment law, social security and other areas of civil law, (as well as in state/territory based issues such as protection orders and tenancy) has similar human rights implications…For example, parenting orders which provide for care arrangements that do not recognise the risks posed by a violent father, can have serious and sometimes fatal consequences, directly impinging on a mother and her children’s right to life and to live free from violence.
Limitation clause
7.50The AHRC model proposes the inclusion of a single limitation clause in a HRA, setting out when a right may be permissibly limited, noting that circumstances may require that different rights be balanced against important public interests, and against one another. It proposes that the overarching limitations clause should carve out absolute rights and be based on the proportionality test at international human rights law. Absolute rights are those rights under international human rights law that may never be permissibly limited (for example, the prohibition against torture). It stated that such a provision should provide that ‘the rights and freedoms contained in this Act may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’ and set out the test for when a limit may be permissible. It stated that in determining this, a provision could include consideration of:
whether the limitation is in pursuit of a legitimate purpose;
the relationship between the limitation and its purpose, including whether the limitation is necessary to achieve the legitimate purpose, and whether it adopts a means rationally connected to achieving that purpose;
the extent of the interference with the human right;
whether there are any less restrictive and reasonably available means to achieve the purpose; and
whether there are safeguards or controls over the means adopted to achieve the purpose.
7.51The AHRC noted that the ACT, Queensland and Victoria all adopt similar limitations tests, and stated that in its consultation process the Queensland provision was identified as being preferred. Section 13 of the Queensland HRA states:
(1)A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
(2)In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
(a)the nature of the human right;
(b)the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
(c)the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
(d)whether there are any less restrictive and reasonably available ways to achieve the purpose;
(e)the importance of the purpose of the limitation;
(f)the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
(g)the balance between the matters mentioned in paragraphs (e) and (f).
7.52This provision establishes an analytical framework which recognises that some rights may not be limited (in particular, by having regard to the nature of the right in question). However, it does not explicitly state that the limitation clause does not apply to absolute rights or identify those rights. The AHRC suggested adopting this provision with amendment to carve out absolute rights and to ‘provide more precise and clear wording for the proportionality test criterion to ensure that public authorities are able to apply it without difficulty’.
7.53The Law Council of Australia stated that it supported the inclusion of a general limitation clause that provides that many of the rights protected in the HRA ‘may be subject to reasonable and proportionate restrictions if these are clearly demonstrated to be necessary for the achievement of a legitimate purpose such as protecting the rights of others’. However, it noted that as no such clause exists in either the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights (ICESCR), such a clause would need to be drafted carefully to ensure it does not limit rights more than is permissible at international law, and should make clear that limitations on rights ‘are not lightly to be inferred’. Professor Sarah Joseph agreed that most of the rights in a HRA should be subjected to reasonable limitations, but new wording would be required ‘to cater for the extended ICESCR obligations, adapting the words of Article 2(1) ICESCR’.
7.54The Law Council of Australia stated that the limitation clause in the Queensland HRA reflects best practice, as it includes guidance on what ‘reasonable and proportionate’ restrictions may entail, and makes clear that public authorities subject to the Acts are not to limit or destroy others’ human rights (for example based on their own interpretation of permissible limitation). Associate Professor Debeljak agreed with this observation, and that a limitation provision should explicitly exclude all absolute rights (a wider suite of rights than those set out by the AHRC).
7.55However, some witnesses and submitters argued that a single limitation clause was inappropriate, including on the basis that it would dilute protections for some rights and elevate some rights over others. Dr Mark Fowler, an Associate Professor of Law, argued that a single limitation clause would not reflect the different limitations permitted under international law. He noted that some civil and political rights may be subject to ‘necessary’ limitation, whereas others may be subject to ‘reasonable’ limitation, drawing on jurisprudence from the European Court of Human Rights to argue that ’necessary' is a higher standard than 'reasonable', meaning that the AHRC’s proposed single limitation clause may lead to contravention of Australia’s obligations under international human rights law.
7.56Dr Paul Taylor, a legal academic, submitted that a single limitation clause would, in relation to civil and political rights, ‘seriously undermine the protection that is meant to be secured for rights against interference’. He argued that the convenience of courts and public servants in conducting limitations analysis day-to-day is not enough reason for individuals under Australia’s jurisdiction to ‘lose key aspects of the fundamental rights to which they are entitled under the ICCPR’.Dr Taylor also submitted that the Siracusa Principles (which sets out the limits on rights restrictions that states may take during emergencies) do not permit this approach.
Absolute rights
7.57The AHRC proposed that a limitation clause should prescribe that the following absolute rights must not be subject to any limitations:
freedom from torture and other cruel, inhuman or degrading treatment or punishment;
freedom from forced work;
freedom from imprisonment for inability to fulfil a contractual obligation;
prohibition against the retrospective operation of criminal laws; and
right to recognition before the law.
7.58However, Associate Professor Julie Debeljak stated that this does not capture all absolute rights, arguing that the list should be expanded to include: the prohibition on genocide; the prohibition on slavery and servitude; the prohibition on prolonged arbitrary detention; and the right to freedom from systematic racial discrimination. Further, as observed by several submitters, freedom of thought, conscience and religion (as distinguished from the right to exercise or manifest those beliefs) is also an absolute right which may never be subject to permissible limitations. The Church of Scientology argued that this aspect of the right to freedom of religion should be carved out as an absolute right.
Minimum core of economic, social and cultural rights
7.59The AHRC also proposed the inclusion of examples in the limitations clause that highlight the minimum core of certain economic, social and cultural rights, to signify that these rights should not be limited to such an extent as to encroach upon the minimum protection required by the right.
7.60The AHRC stated that minimum core obligations have been described as the ‘non-negotiable foundation of a right to which all individuals, in all contexts, and under all circumstances are entitled’, or ‘a “floor” below which no government can go regardless of the economic situation in a country’. It stated that the limitations clause could state that:
[R]ights in the Human Rights Act should not be limited to such an extent as to deprive a person from access to basic shelter or housing with adequate sanitation and access to safe drinking water. Other examples could also be included in the text to illustrate the nature of minimum core obligations.
7.61The ICESCR establishes a specific restriction on the reasons for, and the manner in which, economic, social and cultural rights may be limited. Article 4 of this Convention establishes that States Parties may limit economic, social and cultural rights only insofar as this may be compatible with the nature of those rights, and 'solely for the purpose of promoting the general welfare in a democratic society'. This means that the only legitimate objective in the context of economic, social and cultural rights is a limitation for the 'promotion of general welfare'. In addition, the UN Committee on Economic, Social and Cultural Rights has advised that:
[T]he benefits of the limitation in promoting the general welfare must outweigh the impacts on the enjoyment of the right being limited. The more serious the impact on the [individual's] Covenant rights, the greater the scrutiny that must be given to the grounds invoked for such a limitation.
7.62As to when a limitation will be compatible with the nature of economic, social and cultural rights, the UN Committee on Economic, Social and Cultural Rights appears to indicate that minimum essential levels and corresponding minimum core obligations under each right represent the nature of the rights. That is, even if a limitation were for the promotion of general welfare, if it was regarded as constituting a non-fulfilment of the minimum core obligations associated with economic, social and cultural rights, then it would go against the nature of those rights. The term 'general welfare' is to be interpreted restrictively in this context, and should not be taken to impliedly include reference to public order, public morality and respect for the rights and freedoms of others. Rather, 'general welfare' refers primarily to the economic and social well-being of the people and the community as a whole, meaning that a limitation on a right which disproportionately impacts a vulnerable group may not meet the definition of promoting 'general welfare'.
Interpretive clause
7.63The AHRC model proposes that a federal HRA should include several directions articulating how a HRA is to be interpreted, both by reference to international human rights law, and in relation to federal domestic laws.
7.64The AHRC argued that a direction about how to interpret the human rights contained in the Act in relation to international human rights law should be as follows:
International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
Relevant international instruments include: International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; International Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Elimination of All Forms of Discrimination against Women; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention on the Rights of the Child; Convention on the Rights of Persons with Disabilities; United Nations Declaration on the Rights of Indigenous Peoples.
7.65The AHRC stated that as human rights are derived from international law, it is necessary for courts, tribunals and public authorities to be directed to consider the source instruments and related authoritative international materials, in order to gain context for how the rights are to be understood. It also argued that this approach would encourage consideration of explanatory General Comments and other relevant international materials, to ensure that a HRA remains a ‘living document’ that accounts for developments in international law over time.
7.66The ACT Human Rights Commission also commented on the need for a HRA to be able to evolve:
Human rights are vibrant and not stagnant. A human rights act must likewise be a living document, ensuring protections keep pace with changes in society.
7.67In relation to the interpretation of federal legislation, the AHRC proposed the inclusion of a provision articulating how legislation is to be interpreted having regard to a HRA as follows:
All primary and subordinate Commonwealth legislation is to be interpreted, so far as is reasonably possible, in a manner that is consistent with human rights.
If a statutory provision cannot be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
7.68It further stated that a HRA should provide that an act, decision or provision is compatible with human rights in the following circumstances:
An act, decision or statutory provision is compatible with human rights if the act, decision or provision—
(a) does not limit a human right; or
(b) limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with [the limitations clause].
7.69The AHRC stated that an interpretive clause and limitation clause would collectively provide guidance to courts about how they should interpret statutes in light of the human rights in a HRA. It stated that achieving the correct approach would be delicate, given Australia’s Constitution and rigorous separation of powers between the judiciary and Parliament. It noted that some complexity does arise in considering the extent to which an interpretive provision would differ from the principle of legality (the presumption that Parliament does not intend to interfere with fundamental common law rights, freedoms and immunities). The Law Council of Australia agreed that an interpretation clause must be ‘conceptually distinct’ from the principle of legality in order to provide stronger protection that that already provided by common law.
7.70Associate Professor Julie Debeljak indicated that the specific words used to frame a limitation clause required careful consideration. In this regard, she suggested that rather than stating that ‘all statutory provisions must be interpreted’ (the approach taken in the Victorian Charter), the interpretive provision should require that all legislation ‘must be read and given effect in a way which is compatible with’ the rights in a HRA (the drafting utilised in the United Kingdom HRA). She noted that two justices of the High Court of Australia had attached significance to this.
7.71Dr Bruce Chen stated that the AHRC’s proposed interpretive clause should be amended to state:
All primary and subordinate Commonwealth legislation is to be interpreted, so far as is reasonably possible, in a manner that is consistent compatible with human rights.
If a statutory provision cannot be interpreted in a way that is compatible with human rights, the provision must, to the extent reasonably possible that isconsistent with its purpose, be interpreted in a way that is most compatible with human rights.
7.72He argued that these amendments would ensure there is consistency in terminology and consistency in approach within the interpretive clause itself, and the link between the interpretive clause and general limitations clause clear. He stated that it is unnecessary for the provision to include the words ‘that is consistent with its purpose’, as courts and tribunals would in any event apply the interpretive clause having regard to not only the purpose of the legislation being interpreted, but also its text and context.
7.73Professor Sarah Joseph noted that all human rights charters in Australia direct courts to interpret statutes in conformity with human rights where possible. She stated that the equivalent interpretative clause in the UK has been read as having ‘a remedial effect, which has allowed UK judges to stray quite far from the language of statutes in reading them consistently with human rights’. She noted that the High Court of Australia ’arguably indicated that such an approach would go beyond the constitutional powers of federal judges in Australia’, meaning that an interpretation clause in federal legislation ‘would almost certainly be read, and if necessary read down, by judges so as to conform with their constitutional powers’. She argued that, as such, it is unlikely that judges would ‘over-read’ the clause so as to place it beyond constitutional requirements, meaning that ‘an interpretative clause need not be drafted tentatively’.
7.74Ms Kate Eastman AM SC, a barrister and expert in human rights law, highlighted domestic jurisprudence examining approaches to the interpretation of legislation:
In our domestic law we're very text focused and we look very much to the intention of Parliament when a law was enacted. When we look at human rights, and particularly draw on international law experience, we think about human rights as evolving. They are often described as living instruments…Sometimes there can be tension between 'What did Parliament intend these words to mean at the time it was enacted?' and 'How might you apply that 20 or 30 years down the track?' …There was a very interesting judgement in the High Court—Maloney v The Queen—which really examined the extent to which we can take an ambulatory approach or an evolving approach to our domestic law. I think that's an important case for anybody looking at these issues to think about—when we enact sets of human rights, to what extent do we give those rights the capacity to expand?
7.75The Hon Pamela Tate AM KC, Adjunct Professor of Law and former justice of the Supreme Court of Victoria, posited that the High Court of Australia has not clearly resolved the methodology to be adopted for fulfilling an interpretive obligation, stating that she supported the recommended linkage between the interpretive obligation and the limitations clause by means of the definition of ‘compatible with human rights’.
7.76The ACT Government noted that in its jurisdiction, the HRA interpretive clause has been interpreted conservatively by courts. It noted that under section 30 of the ACT HRA, all ACT legislation must be interpreted in a way that is compatible with human rights, so far as it is possible with the purpose of the Act. It stated that while initially it had been considered that this interpretive provision could have an expansive effect (allowing the courts to depart from the unambiguous meaning the legislation would otherwise bear), territory and federal case law has indicated a more conservative interpretation of the scope of this provision:
The majority of the High Court in Momcilovic considered an equivalent provision in the Victorian Charter to go no further than the common law principle of legality, that that in the absence of clear words or necessary implication the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms. In the ACT case of Islam, it was noted that in working out the meaning of a Territory statute or statutory instrument, the starting point is to identify available meanings consistent with ordinary principles of statutory interpretation and with legislative purpose, and then preferring the interpretation most consistent with human rights, if available.
Override declarations
7.77The Victorian and Queensland HRAs both have provisions providing for ‘override declarations’ by Parliament. That is, the Parliament may expressly declare that an Act, or a provision of an Act, has effect despite being incompatible with one or more human rights. In such circumstances, the member introducing a bill that includes an override declaration must outline the exceptional circumstances that justify including the declaration, and that it is the intention of Parliament that an override declaration will only be made in exceptional circumstances. The ACT HRA does not include an override declaration provision.
7.78The AHRC model does not propose the inclusion of an override declaration provision, instead proposing that courts may interpret legislation as indicating a parliamentary intention to legislate other than in accordance with human rights. In other words, if Parliament clearly intends to pass legislation that is incompatible with rights, this will operate in the same way as an override declaration as a court will not be able to interpret the provision as compatible with rights, and a public authority would therefore not be bound by the obligation to act compatibly as an express statutory provision would instruct them otherwise.
7.79Numerous witnesses and submitters agreed that an override declaration should not be included in a HRA. The Queensland Human Rights Commissionstated that it did not support the inclusion of an override mechanism, and recommended its removal from the Queensland HRA. It stated that laws subject to such a declaration provisions, and any statutory instruments made under those provisions, cannot be declared incompatible with human rights by a court, are not subject to human rights compatible rules of statutory interpretation, and ‘signals to public entities that they do not need to act compatibly with human rights when implementing these provisions’.
7.80Associate Professor Julie Debeljak noted that she has long advocated that an override provision is not required. The Law Institute of Victoria argued that the override provision in the Victorian Charter is not necessary, as did the Castan Centre for Human Rights Law, which cited comments made by Associate Professor Debeljak:
Whereas human rights instruments are ‘designed not only to preserve parliamentary sovereignty, but also to enhance the transparency of an accountability for public decision-making that impacts on rights, and to require justifications for the rights-costs of such decisions’, override provisions ‘in design and practice … undermine[] such scrutiny and accountability’ and allow for ‘the substitution of inter-institutional dialogue with a representative monologue’.
7.81The Victorian Equal Opportunity and Human Rights Commission argued that a federal HRA should not include an override provision on the basis that the equivalent Victorian provision ‘suppresses the judiciary’s contribution to the dialogue model’ by preventing courts from commenting on the scope of protected rights, the justifiability of any limitation on rights, the interpretation of the law compatibly with the rights in the Charter and the need for a declaration of inconsistent interpretation.
7.82Professor Sarah Joseph agreed that an override clause should not be included, contending that the federal Parliament may lack the constitutional authority to make one:
An override clause that allows Parliament the latitude to remove laws completely from the ambit of the Act is possibly unconstitutional for lack of a head of power. Section 51(29) does not authorize laws which undermine a treaty obligation. While partial implementation of a treaty obligation is permissible (eg the extension of human rights obligations to federal bodies rather than all bodies), a provision that blatantly facilitates the passage of legislation which breaches human rights undermines those treaty obligations, and may therefore fall outside s 51(29).
In any case, an override clause is unnecessary. Parliament retains the ability to enact laws which are incompatible with human rights. In such instances, Parliament should remain accountable for its decision to do so through the processes of statements of compatibility, legislative scrutiny and judicial interpretation.
7.83By contrast, the Queensland Youth Policy Collective posited that an override declaration still provides an ‘alarm bell mechanism’ to alert the community that Parliament is not acting in accordance with human rights, and to invite a higher level of scrutiny of proposed legislation and place greater pressure on the legislature to reconsider whether to support a bill.
Declarations of incompatibility
7.84ACT, Victoria and Queensland HRAs provide that if a court cannot reasonably interpret a law in a manner that is consistent with human rights through applying the interpretive clause, the court has the power to issue a ‘declaration of incompatibility’ or ‘declaration of inconsistent interpretation’, to notify Parliament that a law is considered incompatible with human rights. This then triggers a process for Parliament to review the legislation. The High Court in Momcilovic v The Queen considered this power under the Victorian Charter and while it narrowly upheld the constitutional validity of a court making such a declaration when exercised in state jurisdiction, a majority of judges indicated a federal court could not make such a declaration because of the separation of powers requirement in Chapter III of the Constitution.
7.85As such, the AHRC model does not recommend that a power for courts to make a declaration of incompatibility be included in a federal HRA. It proposed an alternative approach:
In the course of applying the interpretive clause in the Human Rights Act, a court may, as part of its reasoning process, indicate whether a statute can be interpreted in line with the Human Rights Act or whether the statute demonstrates a parliamentary intention to depart from Australia’s human rights obligations. If a court finds that it is not reasonably possible to interpret a statute in a way that is consistent with the Human Rights Act, this would usually be indicated in the reasons for judgment regardless of whether a ‘formal’ [declaration of incompatibility] power exists…[W]hen a court has found a parliamentary intention to override human rights contained in the Human Rights Act, the Attorney-General should be required to trigger a process for reviewing the law in question. This will require the Attorney-General’s Department to have processes in place to monitor cases that arise under the Human Rights Act. It will not require a formal [declaration of incompatibility] to be issued by the court to Parliament.
7.86The Law Council of Australia agreed that a declaration power is ‘potentially problematic’ for Chapter III Courts under the Australian Constitution, because it involves the court commenting on the validity of a law divorced from the relevant constitutional ‘matter’. In its submission to the Law Council of Australia, the Law Society of New South Wales indicated that it preferred that such a process be managed outside the core of the executive, such as by the AHRC. The Law Council of Australia endorsed the idea of judgments automatically triggering an executive review process ‘as a pragmatic solution to the constitutionality issue raised in the Momcilovic case’, while ensuring that laws incompatible with human rights are reviewed as a matter of course.
7.87However, The Hon Pamela Tate AM KC expressed concern that the approach proposed by the AHRC may still raise constitutional issues:
In my view, the absence of a power to make formal declarations of incompatibility may not be sufficient to avoid the risk of constitutional invalidity. Imposing a coercive requirement on a member of the executive by reason of a ‘notification’ made by a federal court, when it concludes that there are incompatibilities between a statutory provision and human rights, may violate the doctrine of the strict separation of powers regardless of whether the court has a power to issue a formal declaration of incompatibility…The making of comments by judges about defects in legislation is well recognised as permissible. However, there is a risk, although one cannot be certain, that, where the comments are treated as a ‘notification’ from a federal court that sets in train a process requiring action by the executive, the process will be held invalid by the High Court. It may appear that the process reflects the notion of a declaration of incompatibility in everything but name.
Enforcing duties under a HRA
7.88The AHRC model proposes that a federal HRA should include the ability for a person to make a complaint to the AHRC for conciliation, and if that fails or is inappropriate, to provide that a person can bring a stand-alone cause of action to the federal courts. It also proposes giving the court discretion over the range of remedies available, which may include injunctions, orders requiring action, monetary damages and the setting aside of administrative decisions. It proposes that both individuals and representative bodies should have standing to bring claims under a HRA, and that the Act should protect persons from adverse costs orders.
Complaints process
7.89The AHRC model provides that where a public authority is alleged to have breached its positive duty, a person could: complain to the AHRC first; and if conciliation through the AHRC fails or is inappropriate, or if the matter is urgent, initiate proceedings in the Federal Court or the Federal Circuit and Family Court. The AHRC stated that its existing complaint processes could easily be adapted to conciliate complaints under a HRA to enable complaints and disputes to be resolved in a quick, accessible, cost-efficient and effective manner. It posited that an accessible complaints process (utilising alternative dispute resolution) would reduce the impact of a HRA on the judicial system. A number of submitters agreed with this aspect of the AHRC model and supported this approach. The Centre for Law and Social Justice noted that this is the same model used for federal discrimination complaints, and so having complaints under the HRA operate in the same manner would ‘take advantage of the familiarity of this existing process, as well as the extensive expertise of the AHRC in human rights matters’.
7.90However, many submitters noted the shortcomings of existing human rights complaints processes. The Aboriginal Legal Service of Western Australia stated that it has assisted numerous clients to navigate inaccessible, complex and lengthy complaints processes which often result in unfavourable or insufficient outcomes. Maurice Blackburn considered that the existing federal human rights complaints process (administered by the AHRC) is underfunded, meaning that the AHRC is not able to be ‘responsive to the timely administration of justice’:
In our experience, one of the more common concerns expressed by our clients when accessing justice in matters under the AHRC’s jurisdiction is that there are often significant delays in the progress of matters through the Commission. Anecdotal evidence provided by Maurice Blackburn’s social justice law team indicates that is common for matters going through the AHRC conciliation process to take more than 12 months to complete.
Maurice Blackburn accepts that the major cause for such delays is probably connected to the underfunding of the Commission…However, we believe there may be benefit in exploring means by which consumers may be able to access justice following a breach of the Human Rights Act, which do not require triaging by the AHRC.
7.91Professor Tamara Walsh and Associate Professor Dominque Allen, who are conducting a study on human rights dispute resolution, noted that there is a risk that conciliation processes can, more broadly, exacerbate existing power imbalances, and argued that the process is burdensome and may be an inappropriate mechanism in some cases. In this regard Ms Rita Jabri Markwell, Advisor to the Australian Muslim Advocacy Network Ltd, submitted that in the context of discrimination against Muslims, ‘having to go through a conciliation process or even bring actions against publishers who claim they're not violent but just hate Muslims is not worth it, because they will use that to gain attention and they will compromise your safety’. The Australian Federation of Disability Organisations raised concerns regarding the accessibility and appropriateness of conciliation in cases of disability discrimination. It stated that, under current disability discrimination mechanisms, discrimination must have occurred, and the onus is placed on the person with disability to lodge a complaint with the AHRC. It argued that this process is not working, given the time it can take for a complaint to be addressed, and because the AHRC cannot compel respondents to participate in conciliation, make legally binding decisions to compel the respondent to take positive steps to remedy the situation or impose sanctions for noncompliance, or commence own motion inquiries in relation to issues of unlawful discrimination that are of a systemic nature.
7.92However, Associate Professor Allen also noted that conciliation can also lead to systemic outcomes:
[O]ne of the advantages of conciliation…[is that] people can sit down in a room and come to any outcome that they want to. They're not published outcomes, but I've had access to this kind of information and they do come up with wider systemic outcomes. So it's not just about the person who is discriminated against. They might say: 'Yes, but I don't want this to happen to anyone else. I want you to agree to change your policy. I want you to agree to change your building so people can access it.' And the response is, 'Okay, we'll do that in the confines of conciliation.' If they go to court, they do not, historically, make those wider systemic orders. They're just going to compensate the individual. So, if you want broader systemic change, you can get it through conciliation.
7.93Maurice Blackburn highlighted the approach taken in Victoria where complainants may determine how they would like a complaint to be handled:
Under [the Victorian] scheme, the complainant can choose to go through the Victorian Equal Opportunity and Human Rights Commission conciliation process or direct to the Victorian Civil and Administrative Tribunal. In our experience, this offers a potentially more time and cost-effective avenue when it is apparent that a conciliation process alone will not resolve the matter, for example where the parties have already engaged in extensive pre-litigation correspondence and/or informal settlement conference processes…In our experience, the AHRC is not currently funded to be responsive to the timely administration of justice. Unless a parallel process is developed, the additional responsibilities placed on the AHRC through the adoption of a Human Rights Act will only exacerbate the current situation.
7.94Professor Walsh and Associate Professor Allencautioned that if the only alternative is litigation, parties might choose not to pursue a complaint, because litigation is expensive and can be traumatising (or re-traumatising) for vulnerable people. Good Shepherd agreed that accessible remedies are essential, but argued that a preventative approach to human rights breaches should be taken because ‘government should not be relying on individuals and advocates with limited resources to defend human rights post-breach, against well-resourced public authorities’. The NSW Child, Family and Community Peak Aboriginal Corporation similarly highlighted the importance of funding being provided to community services in order to make remedies accessible.
7.95Some submitters were also concerned that the AHRC model means that victims would not have direct access to the courts, requiring them to complete the conciliation process before commending a proceeding (other than judicial review). Ms Kate Eastman AM SC noted that the model used in discrimination claims may not be appropriate for breach under a HRA, and requiring conciliation before accessing the courts may be a barrier to victims accessing immediate relief:
While I very much support mediation and conciliation, the model presently used for discrimination claims, that often involve individual or corporate respondents, is not necessarily the best model for a human rights claim that is brought against a public authority. There is a significant power imbalance. Public authorities are far more likely to have more resources, experienced personnel and lawyers, a greater familiarity with the AHRC processes and information that will not be known to the complainant. The confidential nature of these processes operates as a shield for some public authorities. The process that requires the AHRC’s processes to be completed before commencing a proceeding may be a barrier to accessing immediate relief, and may add to the cost and the trauma experienced by a victim.
Stand-alone cause of action
7.96The AHRC model proposes that a federal HRA should provide an independent cause of action for victims of a breach of human rights committed by a public authority. The AHRC argued that all unlawful actions under a HRA should give rise to a cause of action, noting that the inclusion of an independent cause of action and associated remedies is an element of the right to an effective remedy, which is provided for under the ICCPR (see Chapter6 for further consideration).
7.97The AHRC model provides that a HRA should enable HRA rights to be raised in the context of other legal proceedings, along with a direct stand-alone cause of action. It noted that all Australian jurisdictions with HRAs enable human rights to be raised alongside other claims, but Queensland and Victoria only allow human rights to be raised alongside other claims (an approach known as ‘piggybacking’). Under this approach a person can obtain a remedy for breach of a right only by bringing a proceeding that could have been brought in the same court or tribunal on other grounds—in other words, by ‘piggy backing’ a HRA argument on another claim. Mr Michael Brett Young, who undertook a review of the Victorian Charter in 2015, recommended an independent cause of action, noting:
I am also concerned the current model leads to contortions in litigation just to get a Charter question before a court or tribunal, even when the Charter is ‘piggy backed’ onto a claim that is not successful. It seems absurd to require people to make unsuccessful arguments on other grounds before they can raise Charter grounds. This situation also creates complex jurisdictional and procedural questions.
I am not convinced the introduction of a separate cause of action would significantly increase civil litigation. While making remedies more accessible is likely to result in some increase in litigation, it should also reduce unnecessary litigation that occurs because the current remedies provision is obscure. This latter litigation has been largely unproductive, in terms of promoting and protecting human rights. A simpler remedies provision … will enable the parties to a human rights dispute to focus on practical outcomes, rather than abstract legal disputes.
I am also encouraged by the experience in other jurisdictions, and under other Victorian legislation that protects human rights, that has not involved a deluge of litigation.
7.98Numerous submitters endorsed the notion of an independent cause of action. For example, Associate Professor Julie Debeljak noted that the Victorian Charter’s ‘piggy-back’ model prevents an affected person from raising Victorian Charter unlawfulness unless they can connect it to a pre-existing claim, and stated that a federal model ‘must include a freestanding cause of action supported by a free standing remedy’.
Administrative law pathway
7.99The AHRC model also proposes, as is the case in the ACT, that ordinary judicial review could proceed either as an alternative to, or in addition to, a direct cause of action under the HRA. It notes that judicial review, whereby a court determines whether a decision made by a public authority was made lawfully, is provided for under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), and under the Constitution and its statutory equivalent in the Judiciary Act 1903 (Judiciary Act). The AHRC noted that if the decision is covered by the ADJR Act, a person may seek review on one of a number of grounds, including that there was a breach of the rules of natural justice or that it involved an improper exercise of power. It stated that compliance with the requirements of a HRA may be relevant to a number of grounds, including whether the decision maker failed to take into account a relevant consideration that they were bound to take into account, or whether the decision involved an error of law. Judicial review under section 75(v) of the Constitution or section 39B of the Judiciary Act, considers whether there has been a jurisdictional error, which arises when a decision maker exceeds the authority or power conferred upon them.
7.100Both the Hon Pamela Tate AM KC and Ms Kate Eastman AM SC considered the availability of judicial review in breach of a HRA duty. Ms Tate argued that, while this would enable a claim to be brought, for example, that a public authority had failed to take into account a relevant consideration on the basis that it had breached its procedural obligation under the HRA, ‘a much more stringent test applies to whether there has been a breach of the procedural obligation by a public authority than the test at common law (applicable in judicial review) for a failure to take into account relevant considerations’. She posited that this would be confusing for a court as to which test was applicable if a breach of the HRA was presented as a ground of judicial review, and for a court hearing a claim for a breach of the HRA alone as to whether they should apply general judicial review principles. Ms Eastman agreed with these concerns, but argued that they are not a reason to exclude judicial review from the remedial options, and could be addressed by clear legislative drafting.
7.101Ms Tate further stated that it would be unfortunate if the clarity of a distinct standalone statutory cause of action was obscured by an attempt to fit it within an existing framework that was not designed to deal with human rights principles:
If a breach of the HRA was brought under the ADJR, would the ‘victim’ criterion for standing apply or the ordinary standing test for judicial review? How would an alleged breach of a public authority’s substantive obligation be dealt with as a ground of judicial review where there is a need to consider the proportionality of the public authority’s actions? This is not to say that a breach of the HRA could not be relied upon in the same proceeding alongside a claim for judicial review (governed by ordinary principles) but it would not be brought under the ADJR Act, as appears to be envisaged by the Commission. There would be two distinct causes of action governed by distinct principles and methodology.
7.102Ms Eastman argued that the question for the court is how the decision was made, and if the decision is flawed and needs to be reconsidered, the court’s guidance on how proportionality should be determined will assist the decision maker when reconsidering the decision. She further stated that she considered it unlikely that an application would, in practice, seek to maintain two distinct causes of action with different remedies:
I question the utility of seeking judicial and merits review in one proceeding. In those circumstances judicial review may be superfluous and unnecessarily complicate proceedings. In my view, judicial review is appropriate for matters where merits review is not the appropriate remedy. This may be because of the operation of other laws.
Intermediate adjudicative process
7.103The AHRC also recommended that serious consideration be given to reintroducing an intermediate adjudicative process to bridge the gap between voluntary conciliation in the AHRC and litigation in the federal courts, in relation to unlawful discrimination matters. The AHRC proposed that either the creation of a new tribunal, or the granting of hearing and determination powers to the AHRC in relation to a HRA be subject to future consideration through subsequent HRA reviews.
7.104The AHRC noted though that this may pose constitutional challenges. The AHRC previously had the power to make binding determinations about discrimination matters. From 1992 and 1995, the AHRC could, where a discrimination complaint was referred for a hearing and substantiated, register a determination with the Federal Court registry. However, in the 1995 case Brandy v Human Rights and Equal Opportunity Commission (‘Brandy’), the High Court held that the scheme for registration of the Commission’s decisions was unconstitutional as its effect was to vest judicial power in the Commission contrary to Chapter III of the Constitution. Significant amendments were subsequently made to the AHRC’s powers in response to the Brandy decision, including removing its power to hold hearings.
7.105Professor Simon Rice OAM argued that actions taken in response to the Brandy decision should be revisited:
Whether the arrangements that were made after the decision in Brandy were necessary is open to doubt. It may be that the new arrangements went further than was necessary to redress the Chapter III difficulty posed by the previous arrangements, with the result that a relatively expert and accessible system for dealing with discrimination complaints was lost when it could have been saved. It is desirable that thought be given to how to redress the Chapter III difficulty of the previous arrangements, so as to re-establish the AHRC's power to make a determination that is enforceable through Federal Court.
7.106Professor Rice recommended that the government seeks legal advice on how a different response to this decisioncould re-establish the AHRC’s power to make a determination that is enforceable through the federal courts. Equality Australia, similarly, argued that jurisprudence on constitutional judicial power has evolved since the Brandy judgment, and stated that there are other ways in which a regulator can take lawful action to address breaches of federal law:
There are also a number of dispute resolution bodies that we can learn from to design a better complaints pathway, such as arbitration models or allowing complaints against the Commonwealth to be dealt with through the foreshadowed replacement for the Administrative Appeals Tribunal. We need a mechanism that results in more jurisprudence to help guide complainants and respondents alike as to their rights and obligations, or which allows the regulator to provide a view as to the merits of a matter to inform industry practice without the need for individual complaints.
7.107However, the Hon Pamela Tate AM KC expressed concern about an intermediate process bridging the gap between voluntary conciliation at the AHRC and litigation in the federal courts on the basis that conferring judicial power on Commonwealth administrative tribunals would be invalid, because Commonwealth administrative tribunals cannot exercise judicial power.
7.108Mr Graeme Edgerton, Deputy General Counsel at the AHRC acknowledged these constitutional considerations stating that an intermediate body would not be able to exercise judicial power, but could permit other determinations such as through voluntary arbitration:
[A]n intermediate body…wouldn't be able to be a body that is exercising judicial power. But there might be different ways in which you could have an intermediate level that is still making a determination. One way in which you could do that would be voluntary arbitration; that's the model that the Fair Work Commission uses, particularly in dismissal cases. You have an agreement between both of the parties to submit to the jurisdiction of the arbitrator to make a final decision that is binding between them…We're not being prescriptive about the model, the way in which it could happen, but we think there are ways in which you could have a more cost-efficient, less formal process than a court that allows people greater access to justice that also has a finality to it that conciliation doesn't; voluntary arbitration is one.
7.109Ms Kate Eastman also noted that there are effective tribunals which do not exercise judicial power and can make decisions in relation to human rights matters. She stated that the Administrative Appeals Tribunal often makes decisions about the rights of people with disability in relation to the National Disability Insurance Scheme (NDIS) and noted that the NDIS legislation sets out a range of human rights that should be taken into account in making those decisions.
Remedies
7.110The AHRC argued that a HRA should provide for a range of remedies, both procedural and monetary:
[T]he federal Human Rights Act remedies clause [should] grant courts a broad discretion over remedies, including damages, noting the range of different kinds of human rights claims and the importance of flexibility. Namely, the clause should include a phrase such as:
In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
7.111The AHRC proposed that the available remedies should reflect those available under federal discrimination legislation, namely: injunctions; orders requiring action; declaratory relief (where courts set out the rights of parties in a binding way); monetary damages; and administrative law remedies (such as setting aside a decision and referring the decision back to the decision-maker for reconsideration).
7.112The Australian Lawyers Alliance supported the AHRC’s proposal, highlighting the importance of flexibility in remedies given the range of human rights claims that may be raised. NSW Council for Civil Liberties noted the importance of remedies being enforceable, describing Australia’s current framework as inadequate because of the inability to enforce remedies. The Grata Fundhighlighted the connection between adequate remedies and access to justice, stating that it is crucial that people have meaningful access to the courts to seek remedies.
7.113Ms Kate Eastman stated that she generally supported the approach taken by the AHRC in relation to remedies and remedial pathways. She highlighted the procedural and substantive components of remedies, stating that the substantive component of a remedy should restore the victim as far as possible to the position they would have been in if the contravention of their rights had not occurred, while the procedural aspect includes both any procedural requirements required by specific human rights (for example, the right to a fair trial with the range of procedural rights to secure a fair trial), and the pathway to secure substantive remedies (including the right to equal access to justice).
7.114Ms Eastman highlighted the range of remedies set out pursuant to United Nations basic principles, including:
compensation for past and future loss, economic and personal hurt or suffering;
reimbursement of expenses or provision for the cost of future treatment or supports;
an account of profit;
injunctions to prevent breaches of human rights continuing;
mandatory injunctions requiring a public authority to make reasonable adjustments;
orders to repair or remediate property;
orders to take a reasonable action to prevent future breaches of human rights, this could include undertaking training or further education;
apologies and statements of regret;
habeas corpus to release a person from unlawful detention;
declarations;
orders such as mandamus, to require a public authority to perform its statutory duties;
quashing unlawful decisions;
imposing civil penalties;
developing memorials, commemorations and tributes;
implementing redress schemes; and
rehabilitation services with counselling supports.
7.115However, Ms Eastman expressed concern that the approach proposed by the AHRC means victims do not have direct access to the court and relies on victims making a claim, participating in the complaints process and initiating proceedings in a federal court, and so would place a heavy onus on victims. She posited that a system of remedies could examine systemic issues through the use of class actions, and would require consideration of procedural pathways and substantive remedies.
Monetary damages
7.116In relation to monetary damages, the AHRC model would allow monetary damages to be awarded to place the affected person back in the position they would have been had the conduct not happened, by compensating them financially for loss or harm. The AHRC argued that ‘the right to claim monetary damages for a breach of human rights would send an important message to public authorities, people in Australia and the international community: Australia takes breaches of human rights by, or on behalf of its government, seriously’.
7.117None of the state or territory HRAs provide for monetary damages. In contrast New Zealand, the UK and Canada allow the courts to order damages where appropriate. Several witnesses criticised this aspect of existing state and territory HRAs. The Queensland Human Rights Commissioner, Mr Scott McDougall, argued that the availability of damages would significantly improve the operation of the Queensland HRA. Mr Derek Schild of National Legal Aid noted experiences in the ACT to highlight the importance of damages where the time taken to bring a claim for breach of human rights may mean that no alternative remedy would be effective.
7.118A small number of submitters and witnesses expressed concern regarding the proposal to include damages as a potential remedy. Mr Chris Merrit, Vice President of the Rule of Law Institute of Australia stated that if a court had the power to award damages for breaches ‘of an uncertain standard…the potential liability for taxpayers doesn't bear thinking about’. He cautioned that the definition of rights in a HRA would need to be certain.
7.119The Queensland Youth Policy Collective argued that if the discretion to award monetary damages in appropriate circumstances could be left open to the courts, a HRA should not provide for exemplary damages, because public entities are not profit driven, or privately owned, meaning that a financial incentive would not be meaningfully effective to deter conduct.
7.120However, numerous witnesses and submitters advocated for the availability of damages as a remedy. National Legal Aid stated:
[T]here is no reason to limit the remedies available to complainants under a federal Human Rights Act….We note the likelihood that in many cases by the time a human rights matter reaches conciliation or hearing, any non-monetary relief that may have been suitable at the time of breach will have lost currency. For example, a child improperly detained in a watchhouse for a period may have since been released or moved to a suitable detention facility by the time of conciliation or hearing, meaning an order they be released or moved will no longer be necessary. Nonetheless, a substantial wrong has been committed, and Federal Courts should have the ability to award monetary damages, both to recognise the significant status of human rights and give effect to Australia’s international obligation to offer effective remedy for their breach, and to effectively deter future wrongdoing of a similar nature by the public authority. For this reason, we note that it is particularly important that nominal damages be available given there are many instances where a person’s human rights may have been breached, but they are unable to evidence any resulting injury, loss or damage. Common examples of where this might occur are in relation to privacy breach matters, as well as matters concerning the unauthorised use of restrictive practices in disability and aged care settings.
7.121The Centre for Law and Social Justice agreed with the AHRC model:
There are good reasons to make monetary damages available for breach of human rights. Although monetary damages have been explicitly excluded under state and territory human rights legislation, these jurisdictions are outliers when other national jurisdictions are considered. Damages are available where appropriate in the UK, New Zealand and Canada. As the AHRC note, ‘procedural remedies will not always be effective in remedying every kind of breach… When it is not appropriate to have a decision remade, but a person has suffered loss or damages, courts should be able to provide a remedy — otherwise that individual will be denied justice’. Furthermore, it has been suggested that not making monetary compensation available as a remedy ‘may deter genuine litigants… and removes an incentive for private law firms to take on human rights cases… on a pro bono or ‘no win, no fee’ basis’. While it may not be appropriate to award damages in every case, the federal Human Rights Act should ensure that monetary compensation can be awarded in circumstances where doing so is necessary to grant justice.
7.122The Hon Pamela Tate AM KC supported the availability of damages as a discretionary remedy, however she submitted that a federal HRA should identify relevant considerations guiding the exercise of the discretion:
These considerations could include, as they have done in practice under the New Zealand Bill of Rights Act 1990 (‘NZ BORA’), the nature of the relevant right, the seriousness of the breach, whether the breach caused any damage or loss, the defendant’s response to the breach, any relief awarded on a related cause of action, and public interest factors such as the impact on the public purse. The relevant considerations identified could also include anything done by the public authority to avoid acting incompatibly. The ‘last resort’ character of damages in human rights cases could be reinforced by providing that an award of damages can only be made if the award ‘is necessary to afford just satisfaction’, reflecting the terms of the Human Rights Act 1998 (UK) (‘UK HRA’). Constraining the circumstances in which a discretionary award of damages can be made would help avoid the perception that a federal HRA will impose significant costs on public authorities or be unsustainable.
Systemic remedies and standing
7.123A number of submitters also considered the best way to ensure breaches of the HRA lead to systemic change rather than only dealing with individual complaints. Ms Eastman AM SC noted that in general the AHRC’s model leans towards personal rather than systemic remedies. She noted that one avenue for systemic remedies is the use of class actions (which relates to the issue of standing, considered below). Ms Eastman noted that in developing an approach to systemic remedies there are a number of matters to consider, including:
(a)what the AHRC should do if it is aware of multiple complaints arising against the same respondent, or concerning the same or substantially the same contravention. Should or could there be a mechanism for the AHRC to identify the complaints as a systemic complaint and join or consolidate the complaints;
(b)whether there should be an option for a complainant or representative body to identify the complaint as raising systemic issues and when the complaint is lodged identify if a systemic remedy is sought;
(c)whether the AHRC should refer a systemic complaint to the court;
(d)whether settlements that may include remedies that may have a systemic effect, should be open and not subject to blanket confidentiality conditions;
(e)whether the AHRC should publish a register of conciliated outcomes for matters that have a public interest or systemic impact;
(f)whether claimsthat raise systemic human rights issues should be conducted by a Human Rights Ombudsman rather than individual victims;
(g)how to educate and support legal practitioners to consider more innovative remedies and the ways of presenting evidence that might support more systemic remedies being awarded by a court.
7.124The South-East Monash Legal Service also noted that the current AHRC resolution approach to discrimination claims has been described as a ‘case management technique’ with the purpose of negotiating private compensatory remedies without addressing the systemic aspects of the violation.
7.125Associate Professor Allen and Professor Walsh noted that the people most likely to have a human rights claim are from vulnerable or marginalised groups, and will face many challenges in pursuing a human rights claim. As such they argued that ‘[g]iving community groups and other entities the ability to bring a claim would be valuable for claims that affect more than one individual and/or claims that require a systemic change such as changing a policy or practice’.
7.126The AHRC model proposes that individuals affected by human rights breaches by public authorities, and organisations or entities acting in the interest of a person, group or class affected by human rights breaches should have legal standing to bring a cause of action under a federal HRA. The AHRC argued that there is a strong argument in favour of enabling representative or class actions on behalf of individuals or groups from an access to justice perspective, noting in particular that those affected by human rights breaches are more likely to be vulnerable and disadvantaged. It also suggested that public interest cases could be run to create certainty and improve the overall strength of human rights law in Australia, while penetrating the public consciousness.
7.127Numerous submitters endorsed the approach. The Aboriginal Legal Service of Western Australia stated that enabling organisations to bring complaints on behalf of individuals would mean individuals would not have to go through the trauma of making their own individual complaints, a factor which would be particularly important for their clients. The NSW Aboriginal Women’s Advisory Network (AWAN) posited that if organisations are given representative standing to bring claims for human rights breaches on behalf of Aboriginal and Torres Strait Islander communities: ‘Significant investment will need to be made in Aboriginal Community Controlled legal organisations…to ensure that communities are represented by their own Aboriginal-led, culturally safe services’. The Indigenous Law and Justice Hub argued that the AHRC proposal was a positive step, progressing ‘the ability for First Nations organisations to challenge collective breaches of cultural rights on behalf of a representative group’.
7.128The Law Council of Australia stated that, in appropriate cases, public bodies such as the AHRC or public interest groups should be granted standing to initiate proceedings, as well as to intervene or act as amicus in proceedings brought by other persons. The ACT Human Rights Commission agreed, arguing that ‘the ACT Human Rights Commissioner ought to have a standing right to intervene that is not contingent on Court consent. We do recognise that it may be appropriate for the Court to set parameters for intervention’. Australian Lawyers for Human Rights argued that a HRA should permit class actions to be brought, with standing given to ‘appropriate representative organisations in the position to support or represent individuals and groups of people whose human rights have been breached and who have specialised skills or knowledge that is helpful for a particular group(s)’.
7.129Ms Kate Eastman argued that while there should be broad standing provisions to enable representative bodies to make complaints or commence proceedings, there should also be clarity and certainty in who will have standing to make a complaint or commence judicial proceedings. In this regard, she noted the need to avoid arguments and disputes about who has standing becoming an additional barrier to seeking an effective remedy, and because federal courts must exercise judicial power consistently with Chapter III of the Constitution.
Costs
7.130In terms of the cost of initiating litigation, the AHRC model posits that a federal HRA should include a provision reflecting public interest considerations to protect against adverse cost orders:
A failure to include protections against adverse cost orders may have a chilling effect on individuals establishing case law in relation to matters that may have a degree of uncertainty, but are nonetheless essential for the public interest. Such cases may determine the application of rights affecting large sections of the community, and can provide clarity as to the nature of obligations on public authorities – which should in turn engender systematic changes, preventing future rights breaches and court claims.
7.131Numerous submitters supported the recommendation that a federal HRA provide costs protection. The Queensland Human Rights Commission submitted that at a minimum, legal assistance providers such as Legal Aid commissions and community legal centres must be adequately funded to advise and act for people subject to human rights limitations by government agencies. Both the Law Council of Australia and National Legal Aid noted that an additional option would be to permit a court to make a costs order in relation to a claim brought under a HRA only in limited circumstances, such as when the application or response is made vexatiously, or without reasonable prospect of success. In this regard, the Attorney-General’s Department recently conducted a review into an appropriate cost model for Commonwealth anti-discrimination laws, in response to the AHRC Respect@Work Report. After this review, the Attorney-General introduced a bill to establish a modified ‘equal access’ cost protection provision to apply in unlawful discrimination court proceedings. Theexplanatory materials state that this would ‘alleviate the barrier to justice that the risk of an adverse costs order currently poses for applicants in federal unlawful discrimination court proceedings’ and provide greater certainty regarding costs to all parties.
7.132The Grata Fund, an Australian specialist non-profit strategic litigation funder, also called for protections from adverse costs. It argued that the risk of adverse costs orders acts as a significant deterrent to people seeking to defend their rights in court and prevents the court ‘from playing its vital democratic role in clarifying the application of human rights legislation’. It stated that the inherent unpredictability of litigation means that applicants bear significant financial risk, even if they have a strong case and pro bono legal representation, arguing that providing for costs orders at the conclusion of litigation creates a power imbalance:
In state and territory jurisdictions which already have their own human rights…costs are typically awarded according to the general discretion of the relevant court or tribunal. In state or territory Supreme Courts, this typically means that ‘costs will follow the event’ or that parties will bear their own costs (‘costs neutrality’), and that a costs order will only be made at the end of proceedings.
While ‘costs neutrality’ might be better than the status quo in some public interest matters, this approach effectively benefits perpetrators of human rights violations, as they may be excused from covering the costs of the complainant even where they have committed a breach of legal rights. This imbalance is further compounded where a legal entity, rather than an individual, is the respondent, as corporations are able to claim legal costs as tax deductions - a benefit not afforded to public interest litigants who are people.
7.133The Grata Fund argued that the risk of adverse costs has a chilling effect on public interest litigation, undermines the effectiveness of the legislative protections and reduces the development of judicial precedent for the benefit of the community. It submitted that a HRA should include a provision that applies a specific costs model such as an Equal Access model, as currently exists in federal whistle blowing laws.
Periodic review
7.134The AHRC model recommends that a HRA should provide for periodic statutory review incorporating significant public consultation, initially five years after it commences, with a timeline for subsequent reviews to be assessed at that stage. It posited that this could examine the impact and effectiveness of a HRA, ensuring its continued relevance, drawing the government’s attention to necessary amendments and helping to prevent a HRA from becoming ‘frozen in time’. Reviews could, it suggested, include consideration of whether further rights should be set out in the HRA, whether the content of the existing rights should be expanded or clarified, and whether further human rights education initiatives are required to better implement the Human Rights Act.
7.135Several submitters supported the inclusion of a periodic review mechanism. The Law Council of Australia noted that review of the ACT HRA had led to the inclusion of economic, social and cultural and rights and a direct right of action, and argued that reviews of the Victorian Charter had provided useful insights into the Charter’s strengths and weaknesses.