Chapter 8Developing a culture of respect for human rights
8.1Ensuring that human rights are respected in Australia requires more than a change in the law – it requires respect for human rights across all layers of government, non-government organisations and the private sector. Many submitters argued that an enforceable Human Rights Act (HRA) can lay the groundwork for respect for human rights, but this must be backed up by an understanding of what human rights are – when they apply and what appropriate limitations are. As the 2009 National Human Rights Consultation report noted:
…human rights can be protected and promoted effectively only if an understanding of, and commitment to, those rights are a part of everyday life for all members of the community and for government, the private sector and non-government organisations.
8.2The framework that a human rights lens gives – that of assessing whether a proposed measure or decision is reasonable, necessary and proportionate – can guide decision-makers and help them when balancing competing rights. But for this to be effective, there needs to be knowledge and understanding across the community, public and private sectors, civil society and media, of what respect for human rights means in practice.
Human rights education
8.3The 2009 National Human Rights Consultation investigated in detail the need for human rights education. The report found that human rights are not well understood by the Australian community and that any meaningful change to human rights protection ‘and a fair go for everyone depends on improving the level of understanding and reducing the levels of fear and ignorance’. It recommended that education be the highest priority for improving and promoting human rights in Australia, concluding:
The main benefits of greater human rights education and the creation of a human rights culture will be greater understanding and better integration of human rights awareness in the community as a whole. Once a human rights culture has taken hold, fewer human rights violations will occur, and people will come to see human rights as synonymous with ‘a fair go’ and as incorporating the values of decency and respect, which individually and collectively all people should enjoy.
People will begin to see themselves, and others, as ‘rights-holding entities’. In this way they will be more likely to assert their own rights and to refrain from violating the rights of others. In time, human rights will be integrated within the public sector to the extent that they become an everyday consideration when policy and legislation are being developed, decisions are being made and services are being delivered.
In addition, once a human rights culture has developed, there will be more robust responses when breaches of those rights do occur. In the absence of this, there is every chance that human rights violations will continue to be perpetrated in ways that might not attract media attention or any response at all. The community sent the Committee a forceful message that more needs to be done in this regard.
8.4Father Frank Brennan, who chaired the National Human Rights Consultation, expressed in the foreword to the report his hope that their detailed report, consultation website (which included thousands of submissions), online forum and commissioned research ‘will be useful educational resources for years to come’. However, the website is no longer hosted, the submissions and commissioned research are no longer publicly available, and the report itself is not available on any official website. As set out in Chapter3, the government committed in Australia's Human Rights Framework (the Framework) in 2010 to fund community education and engagement programs, but this funding was discontinued in 2012–13 and no further like programs have been funded. As such, and based on the evidence to this inquiry, it seems likely that the finding in the 2009 report that ‘Australians know little about their human rights – what they are, where they come from and how they are protected’, remains as relevant in 2024.
8.5In this inquiry, the Australian Human Rights Commission (AHRC) submitted that ongoing human rights education is critical to building awareness and understanding of human rights:
For public servants, it is essential to support them in meeting their obligations to develop Statements of Compatibility for new legislation and legislative instruments, as well as to adopt human rights-based approaches in policy design and implementation.
For the community generally, greater knowledge and awareness of human rights can empower people to stand up for their own rights and to better understand their responsibilities to respect the rights of others.
For school students, at the primary and secondary levels, it contributes to engaged citizenship and the development of respectful behaviours.
For the business community and workplace settings, it can prevent workplace discrimination and harassment, ensure suitable internal response mechanisms to complaints of discrimination or harassment, and building employees’ confidence to stand up for their rights and respect the rights of others.
Community
8.6A number of submitters argued that Australia has a lack of public understanding of human rights. The majority of submitters stated that having a federal HRA would itself be educative for the general public as to what human rights are. The Commonwealth Ombudsman noted that ‘the process of going towards a national human rights act would itself be a great opportunity for education’, but that it would be important to ‘translate the sometimes highfalutin-sounding language of human rights into practical, meaningful things’ via education.
8.7Numerous submitters noted the importance of reinstating and properly resourcing comprehensive and ongoing community education about human rights. The Castan Centre for Human Rights Law noted that in order for human rights instruments to effectively galvanise systems change and embed rights it requires everyone in the system to respect, protect and fulfil human rights, not merely through recourse to lawyers and the courts:
Such reliance on ‘on-the-ground’ actors to embed a human rights-based approach to public service delivery required more widespread human rights understanding, which is generally considered to be lacking in Australia, as a necessary step for ensuring human rights compliance. The need to foster such a human rights culture require that a Federal Human Rights Act be readily comprehensible by the public if it is to be truly useful in securing human rights for all.
8.8Ms Nikita White, Campaigner at Amnesty International, explained the importance of education programs for the public as well as public authorities:
For the general public it's really important that they know their rights, they know what is protected in Australian law and what their opportunities are if they think their rights are infringed. Again, there's very little funding for that in Australia and it's crucial if we do have an Act that it doesn't just sit there as a piece of paper but that people are able to engage with the Act; that they don't have to go to a lawyer and spend a lot of money to engage with the Act, and they know what their options are and what they can do if their rights are infringed. That's why we think education programs for both the public and public authorities are so crucial.
8.9Similarly, the Law Council of Australia submitted that without training and educational initiatives Australians cannot fully benefit from a HRA or a parliamentary scrutiny regime: ‘Australians need to be aware of such measures and their importance as safeguards against both discrete and systemic rights abuses’.
8.10Multicultural Australia cautioned that any public education strategy should be mindful of the importance of communicating across cultural difference ‘with due regard for the importance of divergent traditions and their points of intersection with the values that underwrite a commitment to human rights’. Further, the Federation of Ethnic Communities’ Councils of Australia recommended that lived experience and expertise must be central to a human rights education program:
The knowledge, perspectives and insights of people and communities with lived experience and expertise of human rights violations should be meaningfully embedded into the design, implementation, and evaluation of human rights education programs to ensure they are targeted, meaningful and effectively address the lived experience of human rights violations.
8.11Ms Bianca Tini Brunozzi, Policy and Advocacy Officer at the New South Wales Aboriginal Women's Advisory Network, emphasised the importance of ensuring education and resources about human rights are informed by Aboriginal peoples. In particular, she argued that such education campaigns and resources should be developed in consultation with Aboriginal women and the education and awareness role should be a community led effort.
Schools
8.12Numerous submitters discussed the importance of human rights education in schools and ensuring human rights awareness is fully incorporated into the Australian curriculum. As set out in Chapter 3, the 2010 Framework committed to incorporating human rights into the Australian curriculum for primary and secondary students. The Attorney-General’s Department (AGD) advised that in 2010 the curriculum included a number of measures to support human rights education. AGD advised that it has been revised 24 times since its initial release, but each new version has ‘continued to include human rights education through teachings about the legal and justice system, freedoms and responsibilities of Australian citizens and the Australian Government’s domestic and international roles and responsibilities’.
8.13However, the University of New South Wales Law Society Inc critiqued the way human rights is contained in the curriculum:
…human rights education in the national school curriculum is focused on ensuring students understand what human rights are and their importance rather than how these rights exist in legislation and how they are enforced. The curriculum provides lesson plans embedding examples of human rights in Science, Mathematics, History and English subjects, but minimal information is given on how these rights can be taught practically. This may be due to the lack of a national legal framework, which can then be implemented into a national curriculum.
8.14It is noted that it appears much of the reference to human rights in the Australian curriculum is covered within the civics and citizenship learning area. In this regard, many submissions to the Senate Legal and Constitutional Affairs References Committee in its inquiry into Nationhood, national identity and democracy argued that Australia is not currently providing enough civics education. For example, Ms Deborah Sulway, Manager of Learning at the Museum of Australian Democracy, argued that 'teachers want to teach civics and citizenship and they see it as very important', but they do not have the knowledge, time or resources.
8.15The Australian Child Rights Taskforce said that Australia should have a human rights education strategy that:
…provides children and the wider Australian community with the knowledge and skills to be able to understand and use the existing framework provided by the international human rights treaties that Australia has ratified. This should include human rights awareness incorporated into the curricula of primary and secondary schools and human rights training in all tertiary educational and training institutions.
8.16Similarly, Dr Genevieve Wilkinson, Co-convenor of the Economic, Social and Cultural Rights Network, gave evidence that there needs to be greater general public literacy about the existence of economic, social and cultural rights:
This is something that should be part of primary education. It's something that should be taught in schools so that people have an understanding of their rights from a very early age. Having legislation sends a clear signal to people that these rights exist.
8.17Save the Children and 54 Reasons also submitted that there is a need to institute and support a national conversation on children’s rights:
It would include establishing and resourcing an extensive program of child rights education that is calibrated to reach children of all ages in meaningful ways and accessible settings (such as schools) as well as adults, including – without being limited to – those who work directly with children, and particular children who face the greatest barriers to accessing their rights. It should include funding for civil society organisations for the development and delivery of community education and engagement programs to promote a greater understanding of children’s rights. Additionally, it should involve education and training for the Commonwealth public sector, including guidance to support policy development and the implementation of government programs.
8.18However, the Australian Christian Lobby raised concerns that the national curriculum for students has become ‘steeped in radical ideology’ and is inconsistent with the right to respect for the liberty of parents to ensure the religious and moral education of their children in accordance with their convictions, as required under the International Covenant on Civil and Political Rights.
Media
8.19Some submitters also discussed the importance of the media having a better understanding of human rights. For example, Ms White from Amnesty International noted the importance of improving the way in which the media engages with human rights:
I'm from Queensland and I've seen this a lot in the media in the last year. The focus of the media on youth crime has been immense and has pushed I think poor policy decisions that infringe on human rights. Again, it's probably a question of culture and that's probably not best dealt with through legislation. That would infringe probably on freedom of the press. But through cultural change and improving within media organisations in this country the understanding of the importance of human rights. And not just of the press but also of the people they're covering and how they're covering those issues.
8.20Ms Gavshon from Human Rights Watch gave evidence that having a human rights framework would give the media a reference point:
At the moment, as we know, there's a patchwork of human rights protections in Australia. Media people who are not necessarily human rights experts are having to pull from different things and try to get a grasp on it. If you have it all in one place as a human rights framework, it gives them much clearer guidance for how they're reporting in a framework for them to be looking at the issues they're covering.
Building a human rights culture in the public service
8.21Many submitters emphasised the importance of building a culture of human rights within the Australian Public Service (APS), and having human rights considered at the earliest stages of policy and legislative development. As set out in previous chapters, many submitters noted the importance of a HRA to ensure the rights of individuals are respected by officials when making policies and delivering services. Ms Kylie Evans SC, who worked in the Victorian public service at the time the Victorian Charter of Human Rights and Responsibilities Act2006 (Charter) was enacted, noted that a HRA provides a useful analytical framework for public servants when making decisions:
Of course, the business of government is business that interferes with human rights at times. It's about how it does it, though, and how competing interests are balanced. That often is where the real issue lies. In my view, a human rights act can actually assist public servants in working out how to do that balancing exercise.
8.22The Charter has been described as providing the public sector ‘with a framework, or fairness radar, through which it can look at legislation, policies, practices and service delivery, and consider the impact on individuals’. Mx Ro Allen, Victorian Equal Opportunity and Human Rights Commissioner, gave evidence that the Charter has meant that human rights considerations are ‘part of our DNA’ and provides the authorising environment to:
…actually stop and think about how human rights will affect Victorians when they're making policies and procedures in the Victorian government. And I think it's actually more than just an authorising environment. The Victorian public sector has to seriously turn their minds to human rights—if you like, to go upstream and think about how the decisions that they're making and the policies they're developing will actually impact on people.
8.23Similarly, both the Australian Capital Territory (ACT) and Queensland Human Rights Commissioners said that the value of their respective HRAs is in assisting ‘administrative decision-makers to centre people's rights in their front of mind when they are developing policies and making discretionary decisions’ and in ‘encouraging those public servants to embrace human rights considerations from the very start’. Emeritus Professor Rosalind Croucher, President of the AHRC, argued that a federal HRA would likewise provide a greater incentive to think about human rights early when decisions are made and before they become complaints, noting that ‘[t]he beauty of a human rights act and other measures that front-load what I call “rights mindedness” is that they are expressed in the positive. They are embedded in decision-making and ahead of any dispute’.
8.24For many submitters and witnesses getting the public service to consider human rights when making decisions and developing policy or legislation requires a HRA that is clear, accessible and enforceable, including through litigation. The Queensland Human Rights Commission submitted that one of the most significant outcomes of human rights legislation is getting cultural changes within the public sector. Further arguments made to the committee regarding the need for enforceable human rights legislation are set out in Chapter 5.
8.25The committee also received evidence that simply having the law is not enough to achieve human rights protection – it is essential that a human rights culture be developed to make human rights real in everyday interactions with government. The former United Nations (UN) High Commissioner for Human Rights, the late Sergio Vieira de Mello, summarised the importance of a good human rights culture:
The culture of human rights derives its greatest strength from the informed expectations of each individual. Responsibility for the protection of human rights lies with states. But the understanding, respect and expectation of human rights by each individual person is what gives human rights its daily texture, its day-to-day resilience.
8.26As noted in the AHRC’s supplementary submission, the United Kingdom’s Joint Committee on Human Rights (UK JCHR) has explained that the building of a human rights culture depends:
…not just on courts awarding remedies for violations of individual rights, but on decision-makers internalising the requirements of human rights law, integrating standards into their policy and decision-making processes, and ensuring that the delivery of public services in all fields in fully informed by human rights considerations.
8.27Ms Catherine Dixon, the manager of the Human Rights Unit within the Victorian Department of Justice when the Charter commenced, reflected on what is meant by ‘building a human rights culture’:
…the charter was intended as a framework through which the public sector could look at legislation, policies, practices and service delivery and consider the impact on individuals. The attempt is to try to guarantee greater fairness and respect, particularly for users of public services. It's a culture where people's rights are thoughtfully considered up-front, not a tick-a-box approach, and where human rights become real in everyday decision-making and where human rights become second nature, if you like, or common sense.
8.28Evidence was received that the current approach at the federal level of statements of compatibility risk restricting human rights considerations to be an afterthought, ‘a last-minute tick of approval at the end of the legislative process’ whereas a HRA could help embed a culture of human rights by creating an expectation that human rights will be considered throughout the process. MsEmily Dale, Head of Advocacy at Full Stop Australia, said a HRA would set the culture of human rights in Australia and help ensure ‘we are not only dealing with breaches retroactively, but rather averting them before they occur’. Mr David Manne, the Executive Director and Principal Solicitor of Refugee Legal gave evidence:
…there is a very powerful educative element that would be brought to bear in policymaking and laws and implementation were [there to be a HRA]. We would hope that it would be a preventive of rights violations and that it would reverse what has happened—that is, a culture of rights violations—to a culture of rights compliance.
8.29Dr Cassandra Goldie, the Chief Executive Officer of the Australian Council of Social Service, noted the importance of decision-makers understanding what human rights standards are. Dr Goldie also noted the importance of properly resourcing civil society and other organisations ‘so there is an enlivened civil society culture of advocacy to make sure these rights are realised’.
8.30A number of submitters also discussed the importance of a HRA in the delivery of services and how it could help provide a cultural shift to ensure services are delivered in a way that respects human rights. Ms Matilda Alexander, the Chief Executive Officer of Queensland Advocacy for Inclusion gave evidence that the Queensland HRA has made a difference to the culture of government service delivery:
With every submission that we make, we rely on human rights. Every time we're trying to keep a kid in school, every time we're trying to get somebody out of solitary confinement in a disability detention setting, every time we're trying to give somebody their voice back where their capacity has been challenged, we refer to human rights... In the majority of cases, we think that it has made a huge difference to culture on the ground. So it has made a huge difference to the way that governments have to stop and think about human rights…[The Queensland HRA] allows you to have this very detailed and in-depth discussion about exactly that question. It's not just: 'Can I do this? Can I keep a kid out of school?' Yes, you can, but should you do that? You have the power to do that, but under the Human Rights Act, taking into account all of those factors in that proportionality test, should you be making that decision? That's where good government comes from, where it gives us an opportunity to do some good advocacy as well.
8.31Other submitters also noted the importance of ‘peak and peer organisations’ being able to receive training from relevant human rights organisations such as the AHRC or other relevant bodies to better advocate for human rights in the delivery of services.
Human rights training for public servants
8.32In order for human rights to be appropriately protected and for a culture of respect to develop within the public service it is necessary for public officials to understand the content of human rights and their obligations. As set out in Chapter 3, there is no current organised human rights training available to the APS. The AHRC has stated:
For public servants, such training is essential to support them in meeting their obligations to develop Statements of Compatibility for new legislation and legislative instruments, as well as to adopt human rights-based approaches in policy design and implementation.
8.33There do appear to be some common training opportunities which may be available to all federal public servants, for example via the Australian Public Service Academy ‘APS Induction Pathway’, or via individual courses it offers, however none specifically address human rights.
8.34A number of submitters emphasised the importance of human rights training to help public sector employees uphold human rights in their day-to-day work, many of whom said this training should be mandatory. Amnesty International Australia’s Australian Capital Territory and Southern New South Wales Activism Leadership Committee stated:
Human rights training within the public service and service institutions helps government employees and service providers recognize and address human rights violations or discrimination in service delivery. It enables them to identify and mitigate systemic barriers that prevent marginalised groups from accessing their rights, leading to more equitable and inclusive public and private services.
8.35Ms Daniela Gavshon, Australia Director of Human Rights Watch, gave evidence about the need for human rights education at every level:
I think that if you have a human rights act in place there is education across-the-board, in government at all levels, such that people understand the importance of human rights and understand that human rights should only be transgressed in the most extreme situations and when you have done that balancing act of it being strictly necessary, limited in duration, respectful of human dignity, et cetera.
8.36The Australian College of Nursing submitted there is a need to have specific training for all frontline workers who encounter people whose basic human rights are not being met:
ACN advocates training on the Human Rights Act for all frontline professionals, including healthcare workers, law enforcement, educators, and social and community workers. ACN urges the Australian government to consider the importance of making information, resources, and training materials readily available.
8.37In relation to the type of training to be provided, evidence was received that the training should ideally be tailored to fit the work of the relevant department ‘so that it's not generalised information about human rights but actually gets really close to the scope of their work—the decisions that need to be made, the actions that they may be faced with taking and working out how the human rights principles fit into that scope of work’. Ms Kylie Evans SC, who has been involved in training public servants in Victoria in relation to the Charter, emphasised the importance of having an ongoing commitment to training:
My observation from Victoria is that there was an initial rollout of training and excitement about the human rights act, and that was great for awareness raising. But then it kind of fell away, that initial awareness raising, and the principles weren't really embedded into the work that public servants do, which therefore creates a limitation on how they can apply it and also I think doesn't really fully support public servants to do this well.
8.38Ms Evans SC emphasised that the need for ongoing training is not only important because there is a turnover in staff but:
…also the human rights instruments that we're talking about are necessarily very broad, open-textured rights that are identified. The meaning of these rights develops. And so having just a seminar at the start to learn what it means really isn't sufficient because a human rights act is often described as a living instrument.
8.39Mx Ro Allen, the Victorian Equal Opportunity and Human Rights Commissioner, noted that the Commission conducts training for public servants and all public servants receive Charter training. They explained:
What I've come to learn now as the human rights commissioner is that in fact every department has to find money to fund the commission to deliver our charter education program, so they've got skin in the game, if you like. They are champions of the charter, and they send their executive, as well as the public sector, to our program.
8.40However, some submitters noted the importance of ensuring any such training does not inculcate a politically partisan vision of human rights culture and take Australia away from the fundamental principles set out in the International Covenant on Civil and Political Rights.
Senior leadership
8.41Cultural change starts at the top: to drive change several submitters argued it is necessary to have a change in law (namely a federal HRA) and set human rights as a part of an organisation’s culture and direction. In particular, to achieve a positive human rights-based culture, the leadership of an organisation must be committed, with the government and ministers setting the expectations as senior leaders.
8.42Ms Catherine Dixon, who previously managed the Human Rights Unit in Victoria, gave evidence that leadership is critical:
When ministers, department secretaries, heads of public sector agencies, senior executives are actually committed to human rights and they link human rights to values and to other important public sector priorities, there is a positive shift in the culture of the Public Service. That manifests in a way where the expectation starts to grow that rights do genuinely need to be considered upfront, that they matter to service delivery, that the departments want to make sure people are regularly trained, that human rights are talked about as a public-sector value, that communities of practice develop, that human rights days are celebrated. There is this sense of the momentum.
8.43Ms Dixon explained that in Victoria there has been Charter leadership forums, whereby representatives of each department and key agencies set a vision for the Charter, discussing challenges, driving cultural change and acting as a forum for leaders to upskill their understanding of human rights. Ms Evans SC emphasised the importance of including senior levels of the public service in training, not just junior public servants. Ms Kate Eastman AM SC, who helped train ACT public servants when the ACT HRA was first introduced, also gave evidence about the importance of training public servants in order to build human rights capacity, and not just assume that having a HRA will mean it will automatically be able to be implemented.
8.44Professor George Williams AO, who was involved in the Victorian process that led to the Charter, similarly emphasised the importance of embedding human rights throughout the public service, explaining what occurred initially in Victoria:
The sorts of things they did included setting up charter champions within departments, particularly for that early stage of implementation. I would also urge that there be a period before it comes into force where people can look across the book and, in fact, follow the UK system—a traffic light system of green—go; orange—we've got a problem; and red—we need to change. You would also have your charter champions who are well trained who can then train others and become a focal point of advocacy and also knowledge within the Public Service.
8.45At the federal level, leadership and governance within the APS is managed by the Secretaries Board. This board is chaired by the Secretary of the Department of the Prime Minister and Cabinet and includes all secretaries of Australian Government departments, the Secretary for Public Sector reform and the Australian Public Service Commissioner. Other persons as nominated by the Secretary of the Prime Minister’s Department can also be on the board. Among other things, the board has the functions of identifying strategic priorities for the APS and considers issues that affect the APS. The board may also establish sub-committees to assist the board in performing its functions, consisting of members determined by the board.
APS Code of Conduct
8.46As set out in Chapter 3, the Framework committed to revising the APS Value or Code of Conduct to require public servants to respect human rights in policy making. However, the current APS Values includes only a 'respectful' value which states: 'The APS respects all people, including their rights and their heritage', and the Code of Conduct states that an APS employee, when acting in connection with APS employment, ‘must treat everyone with respect and courtesy’. It does not specifically refer to human rights. Some submitters argued that a federal HRA would prevent those subject to a Code of Conduct from exercising power in a way that was incompatible with human rights.
8.47In contrast to the federal Code of Conduct, the Victorian public sector values specifically requires, in addition to ‘respect’, the value of ‘human rights’, namely that public officials should respect and promote the human rights set out in the Charter by making decisions and providing advice consistent with human rights and actively implementing, promoting and supporting human rights.
Consideration of human rights in development of policy and legislation
8.48The committee received evidence about the importance of formally building human rights into the processes surrounding the development of policy and legislation. Associate Professor Julie Debeljak noted that if human rights considerations are not part of the process internally within government before legislation is finalised ‘the prevailing view is that it is near impossible to achieve an amendment – let alone a rights-based amendment – once the executive’s Cabinet has approved it’. Former public servants have also explained the importance of early consideration of human rights in policy development and the preparation of legislation, noting that when human rights are considered at an early stage in policy development the prospects of the resulting legislation being compatible with human rights are enhanced:
In part, this is because human rights instruments provide a useful framework for policy development, forcing policy makers to focus on the policy objective, identify how human rights may be positively or adversely impacted and explore ways to minimise adverse impacts upon human rights whilst still achieving the policy objectives…This is also, in part, because the legislative development and decision-making processes impact upon the capacity and willingness to make any significant changes to a Bill at the later stages of development. The later human rights are considered, the more likely it is that policy choices will have already been made by the relevant Minister and Cabinet, and considerable work done by the Department to give effect to those decisions. Significant alterations to the proposed legislation risk delays in the legislation, loss of placement in the legislative program and even complete derailment of the Bill.
8.49This accords with the findings of the National Human Rights Consultation, which received submissions on this point and commissioned a telephone survey of 1200 people, 85 per cent of whom supported the option for ‘governments to pay more attention to human rights when they are developing new laws and policies’. The National Human Rights Consultation report concluded:
Greater consideration of human rights is needed in the development of legislation and policy and in the parliamentary process in general. The primary aim of such consideration is to ensure that human rights concerns are identified early, so that policy and legislation can be developed in ways that do not impinge on human rights, or, in circumstances where limitations on rights are necessary, those limitations can be justified to parliament and the community.
Current processes for developing bills
8.50The Department of the Prime Minister and Cabinet’s Legislation Handbook explains the process for the development of federal bills. It states that if legislation is required the relevant minister must seek policy approval for measures in the bill. This can be done in two ways: for significant policy proposals involving legislation it is necessary to seek Cabinet approval, but where the minister believes the proposal does not warrant consideration by Cabinet the minister can write to the Prime Minister seeking policy approval. Once approval is received (or sometimes before) drafting instructions are developed to guide the Office of Parliamentary Counsel (OPC) in drafting the legislation. The detail of the drafting instructions is therefore rarely a matter for Cabinet consideration.
8.51The Legislation Handbook states that consultation on proposed legislation must occur within government in accordance with OPC Drafting Direction No. 4.2. It states that OPC will refer drafts of legislation to agencies who have a right or responsibility to provide policy input in relation to a draft. The drafting direction states that bills or legislative instruments are not routinely distributed to the Human Rights Unit in AGD to consider human rights. Provisions in draft bills that are required to be referred to the Human Rights Unit are those where they might discriminate against an individual; are specifically directed to groups of people who may be experiencing disadvantage or may be in vulnerable circumstances; or might infringe civil, political or other human rights relating to privacy or freedom of speech. In addition, provisions that involve an international law issue including a limitation on a right under a core international human rights treaty, for example limitations on the rights to privacy or non-discrimination, are to be referred to the Office of International Law (OIL) within AGD.
8.52This has the potential to ensure the involvement of the International Law and Human Rights Division in AGD to provide advice to departments regarding the human rights implications of proposed legislation at an early stage. However, as to when in the process a draft bill will be referred, this is described in the direction as ‘a matter of judgment’. If the draft is referred too early (i.e. before the policy and approach are reasonably well settled) agencies may waste time considering draft provisions that subsequently change, but if it is referred too late there may not be time to provide useful comments or negotiate on policies. The Human Rights Unit and OIL are not listed in the drafting direction as sections that require consultation at an earlier stage.
8.53Ms Anne Sheehan, First Assistant Secretary at AGD, advised that OPC sends the bill to AGD ‘once the bill is drafted’. In response to a written question regarding at what stage of the drafting process OPC usually refers matters to AGD, AGD advised:
The Office of Parliamentary Counsel (OPC) sends a Bill to the department for review in accordance with Drafting Direction 4.2 once the policy and the draft Bill is sufficiently developed. When a Bill has been provided to the department for review, officers will review the text and, in many cases, contact the drafting instructors within the relevant department to discuss the policy intent and the human rights implications of the proposed drafting. Following this process, comments are returned to the relevant OPC drafters and drafting instructors. In addition to providing specific comments on the drafting, the Human Rights Branch will often suggest the rights that should be considered in the Statement of Compatibility.
8.54The evidence from AGD suggests that the International Law and Human Rights Division is not involved until the bill is drafted and therefore quite well developed and a key role is in providing guidance and assistance on what should be included in the statement of compatibility, rather than necessarily suggesting amendments to the draft legislation to make it less likely to infringe on rights. The AGD submission noted that the Human Rights branch might highlight where ‘justification’ of potential limitations of rights should be addressed in the statement of compatibility. AGD gave evidence that the Human Rights Unit can give advice on statements of compatibility whereas OIL looks at the legislation itself. Any legal advice regarding the compatibility of legislation with international human rights obligations can be provided by OIL and the Australian Government Solicitor (AGS). However, it remains unclear how often legislation is referred to OIL or the AGS to seek advice as to compatibility with human rights treaty obligations. Drafting Direction4.2 instructs OPC drafters to ask instructors if the draft raises any potential issues with the relevant human rights treaties but states that the drafter is not expected to know about the range of these agreements and AGD provides no human rights training to OPC drafters. As such it appears unlikely that OPC would necessarily always know when a proposed bill would engage Australia’s treaty obligations, and it would appear to be largely a matter for each department as to how much expert human rights advice they seek when developing federal legislation. Even if AGD is consulted, no evidence is available as to how often departments accept any human rights advice.
8.55In relation to this it is noted that the Legislation Handbook states that while AGD is available to departments to provide assistance in relation to statements of compatibility, its legal advice on Australia’s international human rights obligations is provided on ‘a billable basis’. AGD gave evidence that OIL ceased billing for international legal advice in 2017, while the Australian Government Solicitor continues to bill for its services. The advice in the current Legislation Handbook that such legal advice is billable presumably may impact departments willingness to seek such advice, noting that the responsibility for consultation rests mainly with the minister/department sponsoring the legislation.
8.56Ms Sheehan also gave evidence that AGD does not get involved where this committee has recommended changes to legislation to better improve human rights, noting that at that point it is a parliamentary process.
Current processes for developing delegated legislation
8.57A significant amount of legislation is made by way of delegated legislation. While the power to enact laws is a primary power of Parliament, Parliament can (and often does) delegate certain law-making functions to the executive branch of government. Delegated legislation, made by the executive, usually the Governor-General, ministers, statutory office holders and senior public servants, may be made without parliamentary enactment but has the same legal effect as primary legislation (that is, Acts of Parliament).
8.58Regulations and ordinances are drafted by OPC and made by the Governor-General, acting on the advice of the Federal Executive Council (in practice by the minister responsible for administering the relevant legislation). However, the majority of legislative instruments are now drafted internally by various government departments (not by OPC), and made by ministers, secretaries of departments or other officials. The only way human rights are required to be considered in the development of delegated legislation is through the statement of compatibility process. However, this only applies to legislative instruments that are subject to disallowance by the Parliament. For those that are non-disallowable, up to 20 per cent, there is no requirement on those drafting and making them to consider human rights.
8.59Most legislative instruments are subject to sunsetting ten years after they are registered, meaning they are automatically repealed. The purpose of this is to ensure that legislative instruments are kept up to date and only remain in force for as long as they are needed. As such, departments and agencies are required to plan ahead to review their legislative instruments and decide if they can be repealed or should be remade. AGD’s Guide to managing the sunsetting of legislative instruments suggests such reviews should consider if the instrument remains fit-for-purpose, which includes considering the broader legal and policy context including Australia’s obligations under international law. However, no specific guidance is provided on conducting a human rights assessment of the instrument.
Current processes for developing policy
8.60There is no single handbook or standardised framework outlining the process by which policies not involving legislation are developed, considered and approved at the federal level. However, policy development by federal departments does involve a structured process that typically follows some key steps (when time allows): issue identification; policy analysis; policy formulation (including assessment of feasibility, effectiveness, cost-benefit analysis or potential impacts); consultation; coordination; decision (by Minister and/or Cabinet); implementation (may involve the development of regulation, legislation or guidelines); and evaluation.
8.61Common processes for developing many new non-legislative policies appear to be guided primarily by budget and expenditure processes. The Budget Process Operational Rules (the Budget rules), maintained by the Department of Finance, outline the major administrative and operational arrangements for managing the Australian Government Budget and its related processes. These Budget rules include requirements that all policy proposals involving expenditure must include a constitutional risk rating as assessed by AGS (involving a narrow assessment of constitutional risk and not examining broader questions of lawfulness and legal risk) and a gender impact assessment developed in consultation with the Office for Women. It requires that lead entities developing policy proposals with implications for other entities must consult early with those entities.
8.62Part 3 of the rules highlight a range of policies and frameworks for entities to consider, including: gender analysis; gender impact assessment; policy impact analysis; and risk management. It states that entities are encouraged to consider issues related to these matters early in the development process to help ensure the policy is developed to the highest quality standards. It also notes that a checklist of all requirements for new policy proposals is included in the New Policy Proposal (NPP) template. The additional policies and frameworks to which the rules refer are developed and managed by different government departments. For example, the Department of the Prime Minister and Cabinet Office of Impact Analysis publishes the Australian Government Guide to Policy Impact Analysis, which is intended to assist policy makers to reflect on how a policy may affect people, businesses and community, as well as its broader economic and competition impacts. The Department of the Prime Minister and Cabinet Office for Women provide advice and direction to entities on how to assess the gender impacts of their policy proposal, and may assist entities to conduct and complete a comprehensive ‘Gender Impact Assessment’ to accompany a policy proposal. Comcover (the Australian Government's self-managed insurance fund) assists entities to manage risks and administers the Commonwealth Risk Management Policy. This policy requires entities developing new policies to identify risks associated with the proposal and outline how those risks will be managed. However, none of these additional policies and frameworks require an assessment of the compatibility of the proposed measure with human rights.
8.63The Budget rules distinguish between minor and major policy proposals (minor being those with financial implications of less than $20 million) in terms of the approvals process. A minor policy proposal is provided to the Minister for Finance for a decision, and then to the Expenditure Review Committee (ERC) for endorsement of that decision. The ERC is a Committee of Cabinet, consisting of the Prime Minister, Treasurer, Minister for Finance and selected portfolio ministers. A major policy proposal must first be considered by the ERC and then by the Cabinet (unless the Prime Minister agrees otherwise).
8.64Where a policy is agreed and forms part of the government’s budget, money is then sought to be appropriated from the Consolidated Revenue Fund through the passage of annual Appropriation Bills for expenditure. The statements of compatibility accompanying these bills persistently state that the bills do not engage human rights, citing authority from the High Court of Australia to the effect that appropriations bills do not create rights or impose duties. This committee has consistently argued that proposed government expenditure to give effect to particular policies may engage and limit, or promote, a range of human rights, and has cited extensive international guidance to this effect. It has also highlighted the fact that since 1985, Australia has published a 'Women's Budget Statement', which is a public document outlining the positive impact of the annual budget on gender equality and explicitly linking the provision of money through budget measures with improvements in outcomes for women (though with no analysis of whether any of the measures constitute a reduction in funding, and may therefore be a retrogressive measure requiring justification). It is not clear why a similar approach could not be taken to identifying those measures that impact on human rights.
8.65In relation to the development of policies with no financial implications, or matters pursuant to the exercise of ministerial discretion, these may be subject to Cabinet consideration if they involve significant policy. However, in this regard, the Cabinet Handbook states that there are ‘no hard and fast rules about the issues that should be considered by the Cabinet’.
Statements of compatibility with human rights
8.66As noted above, the main way in which human rights are currently considered in the development of legislation is through the requirement for statements of compatibility. Currently, as set out in Chapter 3, all bills and all disallowable legislative instruments are required to include a statement of compatibility with human rights which provides an assessment by the minister/department responsible for the legislation as to whether the legislation is compatible with human rights. This was introduced as part of the 2010 Framework.
8.67All statements of compatibility for government bills are drafted by the department responsible for the legislation. This is the approach taken in the United Kingdom (UK), Victoria and Queensland, but differs from the approach taken by New Zealand and the ACT where the compatibility statement requirement is centralised in the Attorney-General’s departments. At the federal level, statements of compatibility are drafted by officials in various departments, including those such as AGD which should have a high level of understanding of international human rights law, as well as other departments for whom human rights law may not be within their expertise. Ms Sheehan gave evidence:
I would not say that there are human rights law experts in every department to draft them. But the idea when the statements of compatibility was introduced was that every policy officer, without being a human rights expert, should be able to understand how the policy they are developing engages with human rights and be able to take that into account as they are developing their policy.
8.68In this context it is noted that the human rights training for the public service took place over a decade ago (see Chapter 3). Ms Sheehan noted that resources on AGD’s website are designed to assist departments in working out how their policy interacts with human rights. Ms Sheehan stated that AGD does not play a role in clearing or approving statements of compatibility, and there is no requirement that departments seek advice from AGD when developing such statements, although she gave evidence that AGD does provide a lot of support to departments.
8.69Non-government bills are drafted by the parliamentarian (or their staff) introducing the legislation. In this regard, parliamentarians or their staff do not have access to support from AGD, although they can access the publicly available resources (if they know to look for them on AGD’s website).
8.70Although the quality of statements of compatibility has generally improved over time, the quality of individual statements nevertheless can vary dramatically. In 2018, this committee identified that several common issues in the drafting of statements of compatibility made the committee's task of analysing human rights compatibility more difficult, including:
failure to identify any or all human rights engaged by a measure;
setting out insufficient information about the operation of the legislation and the objectives supporting it to enable the committee to determine whether measures in the legislation engage and limit or promote human rights;
identifying that a right is engaged, but not sufficiently explaining how; and
not assessing whether any limitations on the human rights identified in the statement of compatibility are permissible (by reference to the committee’s analytical framework).
8.71Submitters and witnesses expressed concern that the current statement of compatibility process is ineffective and the statements do not accurately reflect the human rights engaged and limited by legislation. The Kaldor Centre for International Refugee Law submitted:
…statements of compatibility are routinely perfunctory, misleading or inaccurate in their legal analysis. Described as ‘an expression of opinion by the relevant Minister or sponsor of the Bill’, the ‘opinion’ expressed is often wrong as a matter of international law.
8.72Similarly, Refugee Legal submitted:
It is our experience that [statements of compatibility (SOCs)] are often limited by a lack of quality objective human rights analysis. This is particularly evident where SOCs acknowledge that a right is limited by the proposed legislation. Often the policy intent of the legislation is given in explanation of why the rights limitation is permissible. While in some circumstances this may establish a legitimate objective, this will not always be the case; there is also routinely a lack of discussion of the proportionality of the limitation.
8.73Both Maurice Blackburn and National Legal Aid expressed concern regarding the absence of objective standards in relation to content or the level of analysis that statements of compatibility must contain. Voices of Influence submitted that statements of compatibility ‘place a significant onus on the Minister who is preparing an opinion to understand international human rights frameworks and Australia’s obligations’.
8.74A persistent concern is that statements of compatibility with human rights will always state that a proposed law is consistent with human rights, regardless of the international law position. This is most apparent in relation to statements of compatibility accompanying legislation dealing with policies and legislative frameworks which clearly breach human rights, where such breaches are not minor or otherwise inadvertent matters that may be rectified without altering the intended effect of the legislation. In such instances, the statement of compatibility will almost invariably conclude that the legislation is compatible with human rights, largely because any limitation on rights is ‘reasonable, necessary and proportionate’ having regard to the objective of the law. This approach is taken even where the committee has previously concluded that such a policy or law is incompatible with human rights, and, more concerningly, where UN bodies have concluded that that specific law or policy breaches human rights. In such cases, the opinion in the statement of compatibility that the measure is compatible is not supported by any compelling evidence to justify the conclusion.
8.75Concerns regarding inaccurate conclusions have existed since the requirement to prepare statements of compatibility was introduced. In 2014, Professor Ben Saul, Challis Chair of International Law and current UN Special Rapporteur on Human Rights and Counter-terrorism, described them as ‘lame statements of compatibility…which whitewash and legitimise rights violations’. In 2020, the Law Council of Australia connected the lack of substance and quality in many statements of compatibility with the lack of human rights engagement and training across departments, stating that the completion of these statements often occurs at the end of the process, ‘rather than being baked in at the beginning’. In 2021, the AHRC expressed concern that statements of compatibility have led to a ‘culture of justification’, explaining away breaches of human rights as being reasonable and justifiable limitations on rights, rather than using the process to seek to improve the design of policy and legislation to minimise or avoid breaches of human rights. In evidence to this inquiry, Christian Schools Australia submitted that, in practice, statements of compatibility ‘reflect merely a justification of its proposals by Government using the language of human rights and inevitably, when rights of non-discrimination conflict with fundamental freedoms, give preference to non-discrimination rights’.
Improving processes
8.76A significant amount of evidence was received as to the need to improve the processes for the consideration of human rights in the development of policy and legislation. Most submitters focused on the impetus a federal HRA would give to this, and additionally many focused on the need for education and a change in culture (as set out above). A number of submitters also argued specifically for the need for internal processes to change within the federal public service in order for human rights to be better considered in the development of legislation and policies.
Agencies and departments
8.77Evidence was received as to how other jurisdictions within Australia approach the consideration of human rights in the development of policy and legislation. In jurisdictions such as the ACT, Queensland and Victoria, statements of compatibility are drafted by the relevant departments but it appears that the human rights team in the equivalent Attorney-General’s departments have a greater role in assessing the adequacy of the statements and being involved in assessing the human rights impacts of the proposed legislation.
8.78In particular, the ACT takes a centralised model of human rights scrutiny, as the Attorney-General is required to prepare a written statement about each bill presented by a minister as to whether, in the Attorney-General’s opinion, the bill is consistent with human rights and if not how. The ACT Government submission explained the process:
Advice on human rights compatibility of proposed legislation is provided to the Attorney-General by the Human Rights Scrutiny team within the Justice and Community Safety Directorate. In the ACT, this centralised model of human rights scrutiny has assisted in a more consistent approach being taken to human rights compatibility and justification of limitations. The Scrutiny team seeks to engage early with cross-directorate action officers preparing bills to identify potential human rights concerns and explore options to achieve legitimate policy objectives while minimising limitations on human rights. Where human rights issues are identified at a later stage they can often be accommodated through amendments to a Bill or more detailed reasonings in the Explanatory Statement. At times, human rights considerations have significantly shaped policy direction taken by the ACT Government.
8.79MsTara Cheyne, the ACT Minister for Human Rights, also explained:
In addition to considering human rights in our policy development, directorates right across will engage with the team in the directorate about the human rights scrutiny aspect. They will be able to provide some advice. Essentially, they need to be able to justify decisions and actions and policies that are being taken, particularly if they are limiting rights. Of course, that is also if they are promoting and protecting rights. That team plays a very important role in engaging with directorates right across the ACT government. The team also has an important role in assisting the Attorney-General in developing the human rights compatibility statements presented with those bills.
8.80Associate Professor Cristy Clark of the Economic, Social and Cultural Rights Network, explained the role of the Human Rights Scrutiny Unit (HRSU) ‘who liaise with all other areas of the ACT public service and the Premier’s office to discuss bills while they are still in development’, stating that discussions between the various departments and the HRSU take place frequently in relation to significant bills, as the HRSU is required to provide the Attorney-General with a memorandum of compatibility on each bill for the Attorney to grant the statement of compatibility:
This process means that much of the work of the Human Rights Act 2004 (ACT) remains invisible to the public, which does raise some issues of transparency, but it [is] also a very effective method of reducing human rights incompatibility and of educating the public service (and politicians) about their human rights obligations and of the (often) very simple changes that can be made to legislation to ensure that it upholds these obligations.
8.81In Victoria, while each individual minister is required to prepare a statement of compatibility, MsDixon gave evidence, when reflecting on when the Charter was first enacted, of the need to have central expertise in the public service:
The Human Rights Unit played a critical role in developing guidance for public servants, particularly legislative officers, on how to take the charter into account in their work, and it also provided advice to public servants about the development of policy compatibility with human rights and assisted other departments in the development of cabinet submissions. In fact, it was a check and balance, because the Human Rights Unit would also brief the Attorney-General on the compatibility of legislation going to cabinet. Public servants want their cabinet submissions to have a smooth process, and they don't want to have ministers arguing against one another in cabinet, so generally they will want to ensure, in this case, that the Human Rights Unit has reviewed a submission and agrees that the legislation can be developed compatibly, or that the Human Rights Unit has assisted at the approval-in-principle stage and then, at bill-at-cabinet stage, has been involved during the drafting of the bill and supports the compatibility of the bill. So that process was a check and balance. It's not an independent external perspective, because the Human Rights Unit was still part of government, but it was a different department that could give a perspective on another department's bill, if you like.
8.82In contrast to a centralised human rights unit, the AHRC recommended the establishment of permanent, dedicated internal departmental teams with human rights expertise and responsibility for consultation and education on HRA matters. They also recommended the development and implementation of human rights action plans by federal departments and agencies and tailored guidelines, checklists and resources; and respect for human rights included within public sector codes of conduct. Professor Croucher, President of the AHRC, discussed the importance of getting an ‘uplift in rights mindedness’ within each department responsible for developing the legislation, and that it is important to embed:
…a culture across the entire Public Service and all of the departments, not just the Attorney-General's Department but all of the departments that are involved in assisting in the development of statements of compatibility and the like; that's where you get the real impact, I would see.
8.83However, as Ms Evans SC noted:
…there's a tension in saying that everyone, effectively, needs to do human rights but also recognising that it is a very specialised area of law. So I think there is a need, particularly early on, to have a centralised space where there is this expertise and it can be developed.
8.84Associate Professor Laura Grenfell also noted the importance of having a specialist unit when a HRA is first introduced, such as in Victoria, and over time having fewer specialists. Professor Kim Rubenstein noted that having a specialised human rights unit or people with expertise in every department:
…wouldn't have to be mutually exclusive, in the sense that they don't have to be either/or; you could have your unit, with a specialist in each department, and you could have a worthwhile interchange and discussion between them, because the unit would have its expertise and each of the different departments would have its specific application.
Statements of compatibility
8.85The AHRC Free and Equal report considered the effectiveness of parliamentary scrutiny of laws for compatibility with human rights, and the role and quality of statements of compatibility. In this report, the AHRC made a number of recommendations regarding statements of compatibility, namely that:
section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 be amended to require statements of compatibility for all legislative instruments, including non-disallowable legislative instruments;
the range of matters to be addressed in a statement of compatibility should include consideration of consultations undertaken;
statements of compatibility should include consideration of compliance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP);
with the introduction of a HRA, the Human Rights (Parliamentary Scrutiny) Act 2011 be amended, or an accompanying legislative instrument drafted, to provide greater clarity on expectations in statements of compatibility, both in regard to rights and freedoms set out in the HRA and the remaining obligations under international treaties not expressly included in the HRA; and
consideration be given to having designated human rights advisers in departments.
8.86Several submitters echoed these recommendations. Associate Professor Debeljak argued that the Human Rights (Parliamentary Scrutiny) Act 2011 should be amended to require the inclusion of ‘an explanation that justifies theassessment of (in)compatibility and the evidence upon which that justification isbased’:
Section 8(3) of theFederal Scrutiny Actshould be amended to read: ‘Astatement of compatibility must state – (a) whether, in the member’s opinion, theBill is compatible with human rights and, if so, how it is compatible including byreference to any reasonable and demonstrably justifiable limitations on humanrights and by providing evidence for the assessment; and (b) if, in the member’sopinion, any part of the Bill is incompatible with human rights, the nature andextent of the incompatibility by reference to any reasonable and demonstrablyjustifiable limitations on human rights and by providing evidence for theassessment.
8.87Associate Professor Grenfell and Dr Sarah Moulds, as well as Liberty Victoria, likewise, recommended the introduction of ‘minimum standards’ for statements of compatibility including a ‘proper analysis of the degree to which a bill will impact on, and limit, human rights’. Liberty Victoria argued that there should be ‘clear consequences’ for failing to meet these standards (but did not particularise what those should include). Amnesty International Australia argued that the range of matters to be addressed in a statement of compatibility should includeconsideration of consultations undertaken.
8.88The South-East Monash Legal Service, a community legal service in Victoria, submitted that an independent body should be established to scrutinise statements of compatibility to enhance their impartiality and quality, and that such a body should be empowered to determine its own scrutiny agenda, including delegated legislation, to ensure all aspects of law-making are assessed. Several submitters agreed that statements of compatibility should require consideration of compliance with the UNDRIP (see Chapter 6 for a discussion on the application of rights under UNDRIP).
Cabinet process
8.89The Cabinet process is required to endorse the policy objectives of legislation or expenditure relating to significant policy proposals. This includes any proposal which represents a significant or strategically important policy initiative or commitment; involves new or significant expenditure; is sensitive or controversial; or has significant implications for other portfolios or is not agreed to by all interested portfolios. Policy approval for legislation is sought at the initial stage, before OPC drafts the bill. The legislation does not generally return to Cabinet for approval after being drafted – instead, if it becomes apparent during drafting that minor policy approval is required (as the policy has changed from what Cabinet endorsed) the minister may write to the Prime Minister for approval.
8.90Currently, there is no formal requirement by which cabinet submissions must detail the engagement of human rights. Coordination comments by other departments are included in the Cabinet template, and this could include comments by the International Law and Human Rights Division at AGD, although it is not clear how often such comments detail human rights concerns. Ms Anne Sheehan advised:
Cabinet documents will be circulated to departments, including the Attorney-General's Department. We will then have the opportunity to comment, and we often do. Sometimes we might request that certain language appear in the cabinet submission so ministers are aware of a particular issue as they are considering the matter. There's also an opportunity to comment on cabinet submissions. If a cabinet submission didn't include an explanation of something that we felt ministers should be aware of then we could put a comment in. Ministers see what the comments are of different agencies. That is one mechanism. Then, of course, we brief the Attorney as a member of cabinet. We might be advising the Attorney of human rights issues or international law issues that we consider important for the Attorney to be aware of as a member of cabinet.
8.91The cabinet submission template does not currently include a requirement to include the statement of compatibility.
8.92In contrast, the cabinet processes in Victoria and the ACT have more formalised consideration of human rights. In Victoria there is a two-stage process for approval of legislation, with the first stage being Approval in Principle and the second stage being the Bill at Cabinet stage. The Approval in Principle stage is where Cabinet endorses the policy objectives of the legislation and drafting instructions are approved. At this stage impacts on Charter rights must be described and there is a dedicated section provided within the Cabinet submission template. After the bill is finalised it is returned to Cabinet for approval at the second stage and Cabinet endorses the bill and the attached statement of compatibility with human rights. The Victorian Equal Opportunity and Human Rights Commissioner noted it is ‘a brave minister that doesn't listen’ to the statement of compatibility. Professor Williams said this was an incentive for departments to have to consider human rights:
In Victoria, for example, we put material in the cabinet manual that meant that if you are going to cabinet you have to make sure that your department is on top of this. Again, that focused the mind of secretaries and people and essentially incentivised them to get this right. It drove a lot of change.
8.93In the ACT, the Cabinet Handbook states that all Cabinet ‘submissions seeking first pass approval should indicate any possible impact on human rights’. The Cabinet Handbook also states that advice should be sought from the Justice and Community Safety Directorate (which houses the Human Rights Scrutiny Team) to ensure early identification of potential compatibility issues. Once a bill is drafted it should be presented to Cabinet with a memorandum from the Human Rights Scrutiny Team setting out whether the bill is compatible with the HRA. Further, significant bills must be presented with full human rights compatibility statements. The ACT also hasa Minister for Human Rights who has policy responsibility for the ACT HRA. Mr Daniel Ng, the Acting Executive Group Manager from the Justice and Community Safety Directorate gave evidence to explain the process for development of legislation in the ACT:
…at the start, when they have the genesis of a work order or legislative project, agencies are encouraged to engage with my office of the human rights scrutiny team. That is probably just a reflection of the fact that, in the ACT Public Service, not every agency does legislative work on a really regular basis. With that comes capability and structural capability to deal with human rights issues in their respective offices. So it's really useful from both of our perspectives where there is some early engagement.My office supports agencies to identify relevant human rights issues and problem solve a bit around whether there are least restrictive means to achieve the legitimate policy outcomes and the construction of the explanatory statements which seek to justify any limitations on rights. We will play that role on an ongoing basis through the development process. It may follow similar trajectories to the Commonwealth. At the policy approval and the detail stage where cabinet is considering the granular content of a bill, we are with agencies every step of the way. We support the provision at the very end, we hope, of a memo of compatibility for the Attorney. This gives him an assurance that he is capable of signing off, or there is a reasonable basis for him to sign off, on the compatibility of a bill.
8.94The committee received evidence that there should be changes in the federal process to require consideration of human rights impacts of policy decisions in Cabinet submissions. Proposals were also made, in order to address concerns that successive governments could change internal processes for human rights scrutiny, that a specialist human rights unit within government could be established as part of a HRA itself.
Independent pre-scrutiny of legislation
8.95In addition to improving the internal government processes for the consideration of human rights within the public service, the committee received evidence regarding whether there is a need for an independent agency to provide advice when legislation is being considered and before it reaches Parliament.
8.96Associate Professor Debeljak submitted that there should be an expansion of the voices that are able to influence the pre-Cabinet-approval phase of legislative development, arguing:
During the “pre-tabling-in-Parliament” phase of policy and legislative design, although the executive accounts for rights, this is in secret and there is no guarantee of outside influence. This is problematic because once Cabinet gives “in-principle” agreement to legislative proposals, it is difficult to secure amendments. If the window for real rights-influence ends at Cabinet, dialogue is nothing more than an executive monologue.
8.97In addition, Laura Grenfell and Associate Professor Debeljak have written that:
The pre-introduction phase of law making is arguably one of the most critical phases of law making, and it is the most opaque component of the “upstream” scrutiny process as it takes place outside of parliament and largely behind closed doors. This lack of transparency impacts on executive accountability, and may hinder the development of a culture of justification – not to mention the substantive human rights outcomes with respect to the policies and laws that are developed and adopted.
8.98In the ACT, Cabinet submissions are circulated for comment to the ACT Human Rights Commission ‘and early engagement with the Commission is encouraged by Government’. The ACT Human Rights Commission submitted that they ‘have been successful in developing a system which has ensured that human rights scrutiny is integrated early in the development process and is not an afterthought’:
…there is now a strong and accepted practice which involves the ACT HR Commission in a pre-introduction scrutiny. The ACT Cabinet Handbook has for nineteen years required that cabinet submissions explicitly consider human rights and the availability of less restrictive options. This has been partially responsible for the development of the practice of circulating to the Human Rights Commissioner most draft cabinet submissions for comment while at the same time accepting the full statutory independence of the role. Such a balance requires mutual trust between the executive arm of government that is developing legislation and the Human Rights Commission which accepts the role of receiving early drafts in confidence while giving robust and strong advice when human rights concerns are noted and making public statements once bills are tabled.
8.99MsTara Cheyne, the Minister for Human Rights, gave evidence:
…the Human Rights Commission has also over the years, I think, strengthened, or perhaps the culture has strengthened in terms of our directorates engaging with the Human Rights Commission for some early advice as well, particularly as an independent statutory authority. While our scrutiny team within the directorate is excellent, the Human Rights Commission, as an independent body and involved in the conciliation of different aspects, can provide some useful advice as well. I think we have seen much more engagement with the Human Rights Commission early on in policy development.
8.100Some submitters noted the importance of an independent scrutiny process, and others recommended that there should be an independent human rights analysis during this pre-introduction phase of policy development at the federal level, by involving the AHRC in a way similar to that in the ACT.
8.101Staff from the Victorian Equal Opportunity and Human Rights Commission gave evidence that they get consulted on legislation ‘where there are significant human rights impacts’ and that if they can assist in the development of legislation, it is far better to do it in the early stages before drafting has commenced. They noted this is a convention and not one that should be legislated. The Commissioner, Mx Allen, noted:
I go back to the chair's question about when the Human Rights Commission gets involved in that statement of compatibility, if you like? I think it's important that it doesn't all land on the human rights commission and that we keep embedding that culture and training the public service not to just throw it to us, saying, 'Oh, it doesn't matter; they'll do it.' If we don't do it, it's really important that they do it themselves and put that advice up to the minister.
8.102Other witnesses gave evidence that to involve the AHRC in this way could affect their independence. Mr Scott McDougall, the Queensland Human Rights Commissioner, raised concerns as to what impact such consultation would have on the independence of the Commission if consulted on Cabinet-in-confidence drafts:
The Commission does hold a function of promoting an understanding and acceptance of human rights in the community. If in the process of a bill-drafting exercise, the commission becomes aware of proposals on the part of government and is unable to publicly comment, it does potentially, depending on all exigent circumstances, put the commission in a position of conflict, where they might otherwise make comment but won't because they are subject to a right to those conditions.
…
I think it is best resolved on a case-by-case basis. One of the objectives of the Human Rights Act is to build a culture within the public sector of human rights. Ideally, that would be right across the board. And, as I said earlier, those who were drafting legislation would have a good understanding of the human rights that are going to be impacted by their particular portfolio and would address those issues in the early drafting stages. And, depending on what it is, they're not always going to be attuned to those issues. So, I think it is something that has to be balanced, and hard and fast rules probably aren't going to work.
8.103Professor Croucher, President of the AHRC, gave evidence as to the strength of the Commission as an independent agency. She noted the influence the AHRC can have during conversations that inform the development of ideas that can become policy or legislative proposals but sees the AHRC as more at arms-length and removed from the Cabinet process. Professor Croucher also raised concerns that if the AHRC was to have such a direct impact this may cut across the goal of embedding rights mindedness more broadly across the public service. Further, Mr Graeme Edgerton, Deputy General Counsel at the AHRC, noted:
The concerns that we have are in relation to transparency and independence—transparency in the sense that we're accountable to the Australian people, but if we're involved in a private session with government then there's less scrutiny over how we've engaged in that process, and then, as to independence, if we've managed to negotiate, say, a change to legislation, how forthright can we be later about criticising that legislation once it's come out into the public arena and it's become a bill?
8.104However, Mr Edgerton stated that the AHRC currently does get consulted on a voluntary basis, usually where it relates to their portfolio (for example, anti-discrimination legislation). In this respect it is noted that the Australian Human Rights Commission Act 1986 currently provides that the functions of the AHRC include examining proposed legislation when requested to do so by the minister, for the purpose of ascertaining whether the proposed legislation may be inconsistent with or contrary to any human right.
8.105Mr Darren Dick, Senior Policy Executive at the AHRC, suggested a comparison could be made with the processes for privacy impact assessments:
In that situation, where there is a law proposed that has a significant impact on privacy, there is a requirement for the agency to conduct a privacy impact assessment, or the Information Commissioner can require the proponent of the bill to develop that process as well. I wonder if there is some equivalence in this. Perhaps there could be something in the cabinet document that explicitly asks: Is this bill compatible with human rights? Does it have a significant impact? It doesn't necessarily have to say, 'Did you consult the Human Rights Commission?' But you would think that, if a bill does raise significant human rights issues, that would be one of the first questions that various cabinet ministers would ask and that would then trigger that process as well, whether or not you have a formal mechanism in the cabinet process that requires you to identify a human rights impact and you have an impact assessment process.
8.106Professor Williams considered that when it comes to sensitive judgement calls on human rights many people should be involved, including the AHRC who have the relevant expertise:
In many ways, it would be problematic not to involve them—they have expertise and they have something useful to say. Then maybe afterwards you hear what they have to say but it is too late at that point. So I think front-ending them is right, but it has to be done in a way that safeguards the independence. There are ways of doing that. For example, even the Electoral Commission might be consulted before government drafts legislation, because you want to make sure that that stakeholder is involved—and they are fiercely independent. I do not think it is beyond our capacity to do it but building it in in a way that is sensitive to their independence, for me, is the right answer.
Existing legislation
8.107In 2009, the National Human Rights Consultation committee recommended an audit of existing federal legislation, policies and practices for compliance with human rights. It stated that, while this would constitute a substantial task, it would provide an opportunity to identify and remedy cases of inadvertent non-compliance at the time the legislation or policy was implemented or through subsequent amendment:
The…review and development of legislation are already important government tasks. An audit is also consistent with the requirement that Australia implement its international human rights obligations domestically. In view of the scale of the task, the Committee suggests that two areas be identified for priority review—the anti-discrimination framework and national security legislation.
8.108Subsequently, in 2012, the National Human Rights Action Plan recognised a need to review Australia’s existing legislation, policies and practices for compliance with international human rights law. It stated that the AGD would, over time, conduct this review:
The review of legislation will incorporate a number of key elements, including:
identification of priority areas within portfolios particularly relevant to human rights for review, and
ensuring that human rights obligations are considered as part of legislation reviews proposed in other contexts.
Reviews will be designed to suit the particular circumstances. For example, a review at the time of introducing substantial amendments to an Act may be appropriate. In some cases, the Government may ask the new Joint Committee on Human Rights to review particular legislation, while in others, a review team may be established or existing bodies may undertake a review. Views expressed by UN human rights bodies will be taken into account in identifying areas for review.
8.109However, AGD advised ‘there has not been a coordinated review of all pre-existing legislation, policies and practices’.
8.110As such, bills and legislative instruments introduced before 2012 have not been comprehensively assessed for their compatibility with human rights. Further, many of the bills introduced from 2012 onwards have amended parts of existing laws which have not, themselves, been subject to a foundational human rights assessment. Consequently, the vast majority of laws on the Commonwealth statute book have not been assessed for compatibility with Australia’s international human rights law obligations. In this regard, the Federal Register of Legislation indicates that there are currently more than 4,500 Acts in force. Some of these were made as early as 1901. Further, of the bills and legislative instruments introduced since 2012, this committee has concluded that a number of them risk being incompatible with international human rights law.
8.111Several submitters echoed concern regarding the need for an audit of existing laws. Students for Sensible Drug Policy Australia and Harm Reduction Australia argued that Australia should commit to undertake a systematic audit of drug policies and laws in Australia to fully document the extent to which these policies and laws do, or do not, accord with human rights law. Change the Record argued that there is a need to audit legislation, instruments and policy frameworks with respect tocompliance with the UNDRIP and other international conventions.
Anti-discrimination law
8.112The National Human Rights Consultation report recommended that federal anti-discrimination laws be one of the prioritised areas for a human rights audit. As set out in Chapter 3, while the government developed exposure draft legislation seeking to harmonise and consolidate Commonwealth anti- discrimination laws to remove unnecessary regulatory overlap, address inconsistencies across laws and make the system more user-friendly, this was never introduced into Parliament. In 2021, the AHRC published a position paper on the reform agenda for federal discrimination laws, stating that there is a ‘compelling case for immediate reform’, including because:
anti-discrimination protections are less accessible than they should be, meaning that people who experience discrimination are not being fully protected;
the business sector is not being supported as well as it should be to take steps to prevent discrimination, or to have confidence that they will be supported when they confront discrimination head on; and
addressing discrimination is heavily reliant on individuals bringing complaints, rather than more systemic approaches to building a culture of prevention.
8.113The AHRC reiterated this position in its submission to this inquiry, advocating the inclusion of a staged approach to federal discrimination law into a new human rights framework. It proposed 38 reforms to improve the operation of federal discrimination laws, including: the introduction of a positive duty to take steps to eliminate unlawful discrimination; funding of the AHRC to develop guidance materials related to these amendments; the introduction of new protected attributes relating to thought, conscience and religion; and revision of the definition of ‘discrimination’.
8.114A number of submitters supported the need to modernise anti-discrimination laws as part of a national human rights framework. For example, Equality Australia, a leading national LGBTIQ+ organisation, submitted:
As a national priority, we need updates to federal anti-discrimination laws to ensure they are coherent, consistent and provide necessary protections for people who experience discrimination, harassment and vilification. In particular, federal anti-discrimination laws and the discrimination framework in the Fair Work Act 2009 (Cth) are inconsistent, complex and lack much needed protections, including for LGBTIQ+ people. They are increasingly out-of-step with state and territory protections.
8.115Western Australia for a Human Right Act also stated that current federal anti-discrimination laws need to be amended to reflect contemporary understanding of discrimination, to give greater consistency for treatment of different types of discrimination, and to make the area more accessible for individuals to pursue complaints. Amnesty International, similarly, stated that these laws should be amended to shift their focus ‘from a reactive model that responds to discriminatory treatment to a proactive model that seeks to prevent discriminatory treatment in the first place’.
8.116The Law Council of Australia stated that it supports reforms to the anti-discrimination framework which would make it easier to access and understand; improve its capacity to address all forms of discrimination; promote equality; and implement Australia’s international obligations in this area. It also advocated for an intersectional analysis of the challenges posed by the current operation of these laws, stating:
A limited policy focus which is blind to this issue can lead to the needs of the most disadvantaged members of society being ignored. In Australia, the justice system has traditionally ‘identified groups of needs and rights holders such as women and Indigenous people, but fail[ed] to provide for the needs of people who dwell at the intersection of these groups’. With respect to anti-discrimination laws, the retention of separate legislation dealing with different grounds of discrimination creates real challenges for complainants who experience intersectional discrimination.
8.117Australian Lawyers for Human Rights noted that the current anti-discrimination framework provides only partial protection against discriminatory activities:
The current Commonwealth anti-discrimination regime provides important legal protections that promote equality in Australia and contains many positive features that operate to protect against certain forms of discrimination in certain circumstances. However, there are significant limitations to discrimination laws in Australia at both a state and federal level…[T]he piecemeal legislative framework in place at the federal level singles out only select characteristics for anti-discrimination protection, while providing certain discriminatory religious activities with particular protection.
8.118Australian Lawyers for Human Rights submitted that, despite its many positive attributes, the existing federal anti-discrimination regime is ‘a poor substitute for the kind of comprehensive protection of human rights that would be offered if the Australian Government both consolidated the federal anti-discrimination laws and underpinned those laws with the enactment of a Federal Human Rights Act’.
8.119The Public Interest Advocacy Centre recommended that Commonwealth anti-discrimination laws be consolidation into a single law, and that provisions relating to freedom from religious discrimination be resolved before this occurs. It also argued that the current ‘comparator’ test for assessing whether a person has been discriminated against on the basis of disability be amended to instead provide for a ‘detriment’ test. It also advocated other amendments including an equal access model for costs, and reform to religious exceptions from anti-discrimination laws. Equality Australia, similarly submitted that anti-discrimination laws require updating to ensure coherency, consistency, and to provide necessary protections for people who experience discrimination, harassment and vilification. It recommended that short of consolidating federal anti-discrimination laws in one Act, a number of technical improvements be made.
8.120Other submitters expressed concern regarding specific aspects of Australia’s anti-discrimination framework. Australian Feminists for Women’s Rights argued that the existing discrimination framework reflects only a partial implementation of the UN Convention on the Elimination of Discrimination Against Women, expressing concern that this treaty was not one of the international treaties considered foundational by the AHRC in its framing of a proposed federal HRA. Equality Australia also raised concerns about the capacity of the existing framework to address discrimination against transgender people and people who are gender diverse. People with Disability Australia, a national peak disability rights and advocacy organisation, endorsed the recommendation to modernise federal discrimination laws,raising specific concerns that these laws fail to give effect to the specific protections set out in the UN Convention on the Rights of Persons with Disabilities (CRPD).
8.121The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability also made several recommendations regarding reform of the Disability Discrimination Act 1992, and in particular to:
insert a new object of the Act being to give effect to Australia’s obligations under the CRPD and to require that the legislation be interpreted consistently in relation to international human rights measures;
shift the burden of proof regarding alleged direct discrimination to the alleged discriminator and amend the definition of indirect discrimination;
replace reference to ‘reasonable adjustments’ to ‘adjustments’;
impose a standalone duty to make adjustments, and amend the definition of ‘unjustifiable hardship’;
impose a positive duty to eliminate disability discrimination and empower the AHRC to take action in relation to this;
provide that it is unlawful for a person to engage in offensive behaviour or vilification because of disability; and
review provisions which impact the ability of persons with disability seeking to enter Australia.
Parliamentary Joint Committee on Human Rights
8.122As set out in Chapter 3, this committee was established with the aim of providing greater human rights scrutiny of legislation once introduced into Parliament. The 2010 Framework stated that such a committee would enhance the consideration of human rights in Commonwealth legislation.
Effectiveness of the committee
8.123As summarised in a recent paper reflecting on the work of the committee, numerous commentators have previously considered the extent of the committee's impact when measured against certain factors. For example, Professor Williams and Daniel Reynolds have twice, in 2015 and 2020, analysed the impact of the committee, gauging it in terms of its deliberative, legislative and media impacts, and its impact on judicial output. Associate Professor Grenfell and Dr Moulds have analysed the extent of the committee's success by reference to: the adequacy of time to conduct formal parliamentary scrutiny; the attributes of particular committees that lead to greater legislative influence; the power and willingness of committees to facilitate public input; a culture of respect for the value of formal parliamentary scrutiny including rights scrutiny; and the generation of a rights discourse in parliamentary debates.
8.124Several studies have considered that there are many challenges associated with assessing the practical 'effectiveness' of parliamentary committees more broadly. As Meg Russell and Megan Benton have observed in the British context, 'much of Parliament's influence is subtle, largely invisible and frequently even immeasurable'. In the Australian context, Dr Moulds has recently considered the capacity for Australian parliamentary committees to have a hidden influence on the development of legislation, not necessarily remedying rights concerns, but in a rights-enhancing manner.
8.125Concerns regarding the committee’s effectiveness (or rather the committee’s capacity to be effective) are not new. In 2014, Professor Saul, Challis Chair of International Law and current UN Special Rapporteur on Human Rights and Counter-terrorism, decried the failure to introduce a HRA and described the committee as ‘another joint parliamentary committee which wrings its hands at violations but is powerless to stop them’.
8.126Many submitters made several comments regarding the effectiveness of the committee, both procedurally and substantively, in ensuring better protection of human rights in Commonwealth legislation. Professor Melissa Castan, Director of the Castan Centre of Human Rights Law, described the committee’s work as excellent, and an essential part of a human rights framework moving forward, but noted more can be done before getting to the committee stage to better protect rights. Emeritus Professor of International Law and Human Rights Andrew Byrnes (a former legal adviser to the committee), stated that the committee has done ‘an excellent job in its analysis and in identifying discrepancies’, but stated that its well-informed judgements, after dialogue with the minister, ‘have not translated into legislative amendments or pullback on some important issues in a number of cases’. The Kaldor Centre for International Refugee Law was critical, summarising the committee’s effect as follows:
Notwithstanding the expert guidance of the independent Human Rights Legal Advisor – a role that has been held by some of Australia’s leading international human rights law scholars – as well as expert input through the public submissions process, Parliamentary scrutiny of bills is often poor and overly deferential to the statements of compatibility. Even assessments by the Parliamentary Joint Committee on Human Rights that have found proposed laws to be incompatible with Australia’s international obligations have been overlooked. This suggests that the process is largely performative and serves little substantive function in ensuring that domestic law compiles with international human rights law.
Indeed, some of Australia’s most egregious violations of international refugee law and human rights law have been legislated since the establishment of the statement of compatibility process.
8.127The United Nations High Commissioner for Refugees Representation in Canberra stated that the work of the committee is ‘inadequate to prevent the adoption of laws that contravene international refugee and human rights obligations’. Liberty Victoria noted the lack of a formal review of the committee’s effectiveness.
8.128Professor Byrnes argued that human rights need to be considered earlier in the process. Associate Professor Debeljak agreed, observing that the point at which this committee may consider legislation (that is, once it has been introduced into the Parliament) is too late:
[A]s soon as the legislation is tabled in parliament, there is very little chance that there is going to be any changes to that legislation. So no matter how much the [Australian Human Rights Commission], for example, might make commentary publicly and no matter how much a committee like yours might make commentary publicly, the policy has been signed off and the legislation has been drafted. Usually, even within a regular legislation framework, it's very hard to get amendments on the floor of the parliament. With human rights legislation it's going to be even worse.
8.129Associate Professor Debeljak also raised concerns about the limited parliamentary engagement with the comments of the committee, including with respect to the quality of ministerial responses to the committee. She recommended that the committee be granted the power to require Parliament to give ‘proper consideration’ to its reports. Refugee Legal similarly expressed concern that the advice of the committee is not always available when bills pass. Associate Professor Grenfell and Dr Moulds submitted that the committee (together with other technical scrutiny committees) play a critical triaging and ‘alarm raising’ role when it comes to identifying laws that fail to comply with human rights, and the work of the committee can lead to important rights-enhancing impacts, including substantive changes to the law that improve compliance with human rights standards. They also noted:
The work of these committees can also influence the development of procedures and processes undertaken at the departmental level within the federal public service, for example by contributing to the development of formal and informal guidance materials to assist in legislative and policy design.
8.130However, Associate Professor Grenfell and Dr Moulds also stated that the capacity of the committee to do so is ‘regularly thwarted’ by the quality of statements of compatibility; the time and resources allocated; and the absence of any meaningful legal or political consequences for failing to respond to the human rights concerns raised.
8.131Some witnesses and submitters commented on the construction of the committee (in particular, the requirement that the committee Chair must be a government member), and the extent to which this may impact on the committee’s effectiveness. In its 2023 Free and Equal report, the AHRC observed that the committee’s approach as a ‘technical’ committee without comment on the policy merits of the legislation ‘has been a key way of managing possible political tensions'. However, Professor Byrnes, a former legal adviser to the committee, observed that on the big issues where there is a political imperative, the committee members, who act as parliamentarians, are also members of political parties. In this regard, the Law Council of Australia recommended a return to the committee’s early practices of consensus-based reports with firms conclusions. The ACT Human Rights Commission noted that the ACT Legislative Assembly’s Standing Committee on Justice and Community Safety plays a similar role in the ACT to the PJCHR at the federal level and is chaired by a non-government member and assisted by external legal advisers.
Reform proposals
8.132The AHRC Free and Equal report included extensive consideration of the role of the committee, and the effectiveness of parliamentary scrutiny of laws for compatibility with human rights. In addition to recommending an enforceable HRA, it made numerous recommendations about the committee’s role, including that:
a HRA be enacted, and that the committee should scrutinise legislation for compatibility with this domestic legislation and all of Australia's international treaty obligations;
parliamentary standing orders be amended to prevent bills from passing until a final report has been tabled, subject to limited exceptions for urgent matters and provisions for later views in such cases;
the committee be vested with an ‘own motion’ inquiry power, enabling it to inquire into any human rights issues (not including individual cases) which it may think fit to bring to the notice of Parliament, and be provided with greater resourcing in order to perform this wider role; and
the committee be empowered to review the adequacy of the Australian Government’s response to individual communications from UN bodies, and/or Concluding Observations from the UN about Australia from time to time.
8.133Numerous submitters endorsed or reflected these recommendations by the AHRC. Professor Williams argued that a model for human rights protection in future needs to account for different governments that might have different views on human rights:
[Y]ou have actually got to build some robustness into the system with a variety of checks and balances and not assume that there won't be resistance—as indeed there has been at prior times in this committee, where you can give some positive examples but, over the life of the committee, where it has just been ineffectual.
8.134The Law Council of Australia agreed that the legislative scrutiny regime established should be integrated into a federal HRA. Professor Byrnes echoed the recommendation that the committee have the power to monitor human rights decisions of international bodies, stating that there should a procedure for tabling such decisions before the committee, or indeed the Parliament, as a formal process ‘might give the committee the opportunity to ask the government how it proposes to respond and explore that in a way that might lead to change’.
8.135Associate Professor Greg Carne argued that the committee has not been effective in obtaining ‘human rights purchase in national security legislation’, unlike the Parliamentary Joint Committee on Intelligence and Security (PJCIS) which appears to have emerged as the ‘premier Commonwealth Parliament review committee’. He also submitted that the committee should have a rapid response mechanism for its scrutiny of national security legislation, and require the PJCIS and the Independent National Security Legislation Monitor to consult with the committee over national security bills.
Passage of legislation before committee reports
8.136On average, ten per cent of all bills pass each year before the committee has reported. Several submitters commented on the committee’s capacity to table its human rights compatibility assessment in the Parliament before legislation has passed. In this regard, Professor Sarah Joseph stated that:
The committee cannot make the parliament pass or not pass legislation, but perhaps it could be the practice, or some way to strengthen at least the way reports from the committee are done in a timely fashion. And it's not because you don't do them in a timely fashion; it's because you're not given enough time to do them. So, a lot of the reports would be issued after the relevant legislation was passed, and that's clearly not so useful. It's useful to academics, and that's pretty much it.
8.137Professor Croucher, President of the AHRC, stated:
…it is crucial to that embedding of human rights impact in the legislation itself that this committee can slow down the process, except in cases where it's absolutely necessary and that other mechanisms of review can be the trade-off if the legislation has to get through really fast.
8.138The Law Council of Australia advocated for ‘guaranteed time before a vote’ for committee scrutiny of legislation raising significant issues, and adequate resourcing to facilitate expeditious consideration of urgent laws. Refugee Legal agreed that standing orders should be amended to prevent bills from being passed until a final report of the committee has been tabled in Parliament, with limited exceptions for urgent matters. Relatedly, the South-East Monash Legal Service argued that a guaranteed minimum time period for considering new bills would prevent their enactment without scrutiny. The UNSW Law Society recommended that the committee have the power to 'revoke' bills that violate international law obligations.
8.139Witnesses also observed that the capacity for this committee to undertake more targeted human rights analysis would also depend on greater human rights consideration earlier in the legislative development process. For example, MsLinda Forbes, Law Reform Officer of Economic Justice Australia, stated:
If human rights considerations were properly considered at an earlier time, less legislation would get up to the Senate that is dubious in terms of human rights. For example, if the government of the day says to the department, 'Let's do this for cost-cutting', the department is then obliged under the act to consider the human rights ramifications. It would allow your committee to be a lot more targeted, and with a higher level of analysis. Arguably, if problematic legislation does get up to the Senate, then you are in a position to look at it in more detail because a lot of the detailed scrutiny and analysis will already have been done. It will be quite a different role, in a way, and a lot more specific.
8.140Associate Professor Debeljak recommended that the committee may be involved in the scrutiny of legislation before it is introduced into Parliament, including at the Cabinet submission phase, on the basis that this is the time for the greatest opportunity to successfully recommend changes to legislation. However, Ms Eastman AM SC noted that cabinet-in-confidence considerations could raise challenges.
Own motion inquiry power
8.141The Human Rights (Parliamentary Scrutiny) Act 2011 provides that the committee’s functions are to examine bills, legislative instruments and Acts for compatibility with human rights and to inquire into any matter relating to human rights, but only where this is referred to it by the Attorney-General. The AHRC Free and Equal report recommended that the committee be vested with an ‘own motion’ inquiry power, enabling it to inquire into any human rights issues (not including individual cases) which it may think fit to bring to the notice of Parliament, and be provided with greater resourcing in order to perform this wider role. It stated that these (and further) reforms to the committee’s remit would enhance the committee’s effectiveness and enhance parliamentary oversight of both decision making in relation to the scope of Australia’s international human rights obligations, and actions to be taken to respond to breaches of our international human rights obligations.
8.142Several submitters supported this recommendation. The Castan Centre for Human Rights Law agreed that the committee should be granted an own motion inquiry power, including a power to inquire into thematic human rights issues, and the power to delay the enactment of laws before their proper consideration, and that the committee be guaranteed proper resourcing to undertake this work. The Law Council of Australia echoed this recommendation, stating that further resources and powers should be given to the committee so it may involve the public more in own-motion inquiries.
8.143Attention was drawn to the role of the UK JCHR, which is broader than that of this committee. The UK JCHR: scrutinises every UK Government bill for compatibility with human rights; scrutinises the UK Government's response to court judgments concerning human rights and the UK's compliance with its human rights obligations contained in a range of international treaties; and can conduct its own thematic inquiries, where the Committee chooses its own subjects of inquiry and seeks evidence from a wide range of groups and individuals with relevant experience and interest.
8.144The UK JCHR has exercised its power to self-initiate thematic inquiries on numerous occasions in relation to a range of matters. For example, at the date of this report, the UK JCHR’s current inquiries include examining: accountability for Daesh crimes; human rights at work; and the human rights of asylum seekers in the UK. Its completed inquiries include broad matters including a Human Rights Ombudsperson and Human Rights Act reform, as well as specific matters such as an inquiry into the right to a family life relating to the adoption of children of unmarried women from 1949-1976.
8.145Dr Adam Fletcher has stated that the UK JCHR has used its own-motion inquiry effectively:
The power to initiate its own inquiries has frequently been employed by the UK JCHR to good effect. It has enabled the committee to examine pressing human rights issues, even when they are not the subject of pending legislation. Aileen Kavanagh described the UK JCHR’s work as multi-dimensional, incorporating reactive, proactive and interactive dimensions. In contrast, the Australian PJCHR’s work is largely one-dimensional, comprising reactive reporting, interspersed with the very occasional thematic inquiry.
Expansion of committee remit
8.146As noted above, the AHRC recommended that the committee’s remit be expanded, including to: assess compatibility with a domestic HRA; conduct ‘own motion’ thematic inquiries; and review the adequacy of responses to individual communications from UN bodies, and/or Concluding Observations from the UN about Australia.
8.147In relation to the scrutiny of both rights and freedoms in a HRA, and those set out under international law, the Law Council of Australia argued that the committee should retain its current role of scrutinising according to the treaties, noting the AHRC’s HRA model proposes that some economic, social and cultural rights be articulated more narrowly than the treaty obligations.
8.148Several submitters argued that the committee should examine further international legal instruments. A number stated that the remit should be expanded to include consideration of the UNDRIP. The application of UNDRIP is further examined in Chapter 6.
8.149A number of submitters also argued that the committee should examine compatibility with the Refugees Convention. The Refugees Convention protects against non-refoulement (expulsion or return to a place of persecution) and affirms the right of asylum without distinction or discrimination on account of a person’s race, religion, country of origin, or mode of arrival.
8.150The National Centre for Action on Child Sexual Abuse argued that a sub-committee on children’s human rights should be established as part of the committee, saying that this could play an ongoing role in scrutinising federal legislation and preparing statements of compatibility focused on child rights, ensuring that the parliamentary scrutiny of legislation is appropriately informed by expertise on children’s human rights.
8.151The AHRC made a series of recommendations regarding the current absence of processes for the consideration of findings by UN treaty bodies regarding Australia by the Parliament. These are discussed in greater detail below. Specifically in relation to the committee, the AHRC recommended that the committee be empowered to review the adequacy of the Australian Government’s response to individual communications from UN bodies, and/or Concluding Observations from the UN about Australia from time to time. The resourcing implications this role would have on the committee are not immediately apparent, particularly because AGD no longer maintains a public up-to-date database of UN treaty body recommendations relating to Australia, or individual communications relating to Australia. See further below regarding findings by treaty bodies.
Resourcing
8.152Several submitters commented on the workload pressures on the committee in relation to its current remit, arguing that a greater remit will necessitate greater resourcing. The AHRC, in recommending an expansion to the committee’s remit, acknowledged:
While adding this power would expand the ability of the PJCHR to contribute to wider human rights discussions…the ability for the Committee to do so is dependent on its capacity – namely, its staff resources to support such inquiries, as they require ‘significant effort’ by committee members and the secretariat, as demonstrated in relation to the exercise of its existing inquiry powers.
8.153The Castan Centre for Human Rights Law noted observations by Dr Fletcher and Philip Lynch that ‘the PJCHR’s workload has been immense, and its resourcing, including staffing of its secretariat, has not always reflected this reality’. The committee is currently supported by a small secretariat to undertake its current functions, consisting of four full time staff (a Secretary, two Principal Research Officers, and a Legislative Research Officer), and a part-time external legal adviser. The two Principal Research Officers are required to have expertise in international human right law, as is the external legal adviser.
Role of the Australian Human Rights Commission
8.154The AHRC proposed that its role should be expanded alongside the introduction of a federal HRA. However, it cautioned that it has experienced persistent funding shortfalls in relation to its existing set of functions. Numerous submitters also highlighted the underfunding of the ARHC and made a number of proposals regarding an expansion of the AHRC.
Current AHRC functions
8.155The AHRC’s functions, as set out by statute, are broad ranging. It is required to investigate and resolve complaints about alleged breaches of human rights against the Commonwealth and its agencies, and deal with complaints made to the Commission under the Australian Human Rights Commission Act 1986 (AHRC Act). In addition, its functions include to: promote an understanding and acceptance, and the public discussion, of human rights in Australia; undertake research and educational programs to promote human rights; report to the minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to human rights; examine enactments, proposed enactments and or international instruments for consistency with human rights and international instruments; publish guidelines for the avoidance of acts or practices of a kind in respect of which the Commission has a function; and intervene in legal proceedings that involve human rights issues.
8.156The 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. Significant amendments were subsequently made to the AHRC’s powers in response to the Brandy decision, including removing its power to hold hearings.
Proposed additional AHRC functions
8.157The AHRC has proposed a number of expansions to its existing functions linked to the establishment of a revised human rights framework, in particular:
an extension of its reporting powers to include reporting on the operation of a Human Rights Act and for the Attorney-General to be required to table all these reports and the government’s response which should indicate how the government intends to address the AHRC’s recommendations;
the power to conduct own motion inquiries in relation to all areas of unlawful discrimination of a systemic nature, with effective enforcement mechanisms attached, and also be empowered to conduct such inquiries in relation to breaches of human rights in a HRA that are of a systemic nature;
have a specific self-initiated power to review the policies and practices of public authorities to assess their compatibility with a HRA, with the power to require the production of documents, witnesses or other information necessary to conduct a proper review. The AHRC should also be empowered to make recommendations to relevant public authorities after conducting reviews and public authorities should be required to respond to the Commission’s recommendations;
be required to prepare regular reports on the operation of the HRA across the Commonwealth;
be empowered, with leave of the court, to intervene in court matters involving the interpretation or application of a HRA, noting its special expertise;
play a leading role in engaging the Australian community on the content and effect of a HRA (including undertaking research, developing public education programs and campaigns, running community-based workshops, holding public forums, and developing materials for use in schools);
have a key role in developing initial training programs for the Australian public sector, designed to support the roll-out of a HRA, as well as ongoing education programs to improve human rights compliance; and
to develop public sector guidelines and protocols in coordination with public sector bodies to enable the implementation and compliance with a HRA in specific public sector contexts.
8.158Several submitters called for an expanded complaints mechanism for the AHRC. The Law Council of Australia also recommended that the AHRC play an alternative dispute resolution role under a HRA, along the lines of the role it currently performs in relation to anti-discrimination legislation, although it emphasised that this should not preclude the ability of applicants to bypass the AHRC and seek resolution in the courts. The New South Wales Council for Civil Liberties called for the AHRC's current complaints mechanism to be replaced entirely with one drawn from the HRA, broadening the AHRC's jurisdiction to include complaints made under a wider range of international treaties.
8.159South-East Monash Legal Service envisioned an AHRC divested of its complaints handling functions and consequently able to directly 'advise and assist' litigants:
This would require the AHRC to be insulated from government reprisal or executive interference. This could be achieved by establishing 'statutory guarantees of independence' and a system of funding independent of direct ministerial control. The ensuing democratic deficit could be assuaged by mandating parliamentary reporting obligations.
8.160The New South Wales Council for Civil Liberties submitted that the AHRC’s statutory functions should be amended such that it 'should have the power to exercise all its functions on its own initiative, and not only when requested by the Minister, or upon receipt of an individual complaint'. It advocated for full own-motion inquiry powers for the AHRC, together with an extended intervention power in discrimination cases. This was supported by the Victorian Equal Opportunity & Human Rights Commission, which recommended appropriate enforcement mechanisms 'to ensure the AHRC's role as a human rights regulator is effective'.
8.161Some submitters critiqued aspects of the AHRC’s advocacy work. For example, the Affiliation of Australian Women's Action Alliances described the AHRC's 'poorly considered advocacy of gender over sex' and submitted that it failed 'to practise the discipline of the participatory duties it now (rightly) advocates'. Several religious groups expressed concern that the AHRC did not adequately protect freedom of religion. Freedom for Faith described the AHRC as 'consistently fail[ing] to come to the defence of religious freedom, even in cases of egregious breach', citing a number of examples including the AHRC's submissions regarding the Religious Discrimination Bill. It called for 'the appointment of a Religious Freedom Commissioner to help provide a counterbalance to the secular and anti-religious voices within the Commission's professional staff'. The Australian Christian Lobby criticised the AHRC's interpretation of the International Covenant on Civil and Political Rights (ICCPR) and accused it of being 'unashamedly bound…up with political activism in support of the Yogyakarta Principles, in spite of treaties like the ICCPR and CEDAW [the Convention for the Elimination of Discrimination Against Women]'.
8.162A number of other submitters called for an expansion of the AHRC's remit. Professor Saul called for a 'comprehensive overhaul' of the AHRC, stating that it is currently an anti-discrimination body by design, and that '[c]ontemporary international human rights law is not limited to anti-discrimination or civil and political rights'. He recommended new commissioners for Economic, Social and Cultural Rights; Work Rights and Social Security; Health Rights; Education Rights; and Decent Living Standards. Both Equality Australia and Just.Equal called for the appointment of an LGBTIQA+ Human Rights Commissioner, with Just.Equal describing 'constant attacks on trans and gender diverse inclusion and equality, as well as moves to ban conversion practices and medical interventions on intersex children at a state and territory level'. This was supported by LGBTIQ+ Health Australia. Equality Australia noted that 'it appears that the new Sex Discrimination Commissioner will now also have responsibility for LGBTIQ+ discrimination', and called for 'funding and policy expertise to support the enlarged mandate'.
8.163The Environmental Defenders Office called for the AHRC's remit to be expanded to include consideration of environmental rights, setting out five new functions around advocacy, awareness, research, monitoring and complaints resolution. The Australian Federation of Disability Organisations recommended that the AHRC 'be granted the power to enforce compliance with the [Disability Discrimination Act 1992] and associated standards'. Dr Stephen Lake considered that the 'defined roles' of the commissioners 'exclude a very substantial range of other human rights areas and implications, all of which ought to have responsible commissioners or be represented in some fashion by the AHRC'.
AHRC funding
8.164The AHRC argued that it must be adequately resourced in order to undertake any additional functions. Further, numerous submitters, including the AHRC itself, stated that the AHRC is currently underfunded and requires an increase in resourcing to fulfill its role in protecting Australians' human rights.
8.165In its submission, the AHRC described funding shortfalls throughout its history and described its current funding level, funding approximately 100 Average Staffing Level (ASL) staff, as insufficient to fully discharge its current legislated functions. It considered 145 ASL staff to be necessary, meaning it experiences a shortfall of $7.4 million per year. In its 2022–2023 Annual Report, the AHRC observed that it had ‘started the year facing uncertainty about its sustainability’, owing to ‘long-term underfunding’ and financial management issues, placing it in a precarious financial position. It stated that the Commission was unable to afford to fund the core staffing needed to perform its statutory functions, noting that the October 2022 budget had addressed these issues to some extent, ‘by increasing the Commission’s core revenue to a level that stabilised its existing staffing profile’. However, it observed that this funding increase was still less than ‘what the Commission requires in terms of staff to acquit our functions fully and independently’.
8.166In evidence before the committee in September 2023, Mr Dick, Senior Policy Executive at the AHRC, elaborated:
…we don't have the resources now to do everything we're meant to be doing, which means we have a significant backlog in complaints, for example, particularly in the Australian Human Rights Commission Act complaints…but also in the discrimination law complaints, and we have less focus on community education because we simply don't have the resources to do the outreach.
8.167The Community and Public Sector Union (CPSU) stated that the AHRC has been ‘grossly underfunded and understaffed for decades’:
The Commission must be properly funded to conduct its core functions independently, effectively and in a timely manner. This means adequate funding that allows the Commission to maintain its independence, sustain a permanent workforce and build capacity within the Commission to engage in project work as required.
8.168Circle Green Community Legal reported that due to 'significant delays' in AHRC processing times, they had begun referring clients to other forums which have more limited power. The CPSU considered the AHRC's estimate of 145 necessary ASL staff to be an underestimate, and further recommended steps in relation to a permanent and secure increased workforce for the AHRC.
8.169The CPSU also recommended a review of the AHRC's structure, describing it as 'a top-heavy institution governed by individual Commissioner's [sic] priorities and preferences', and noting that in some circumstances a matter may not fit squarely within a particular Commissioner's area of responsibility. In this regard, the AHRCnoted that 'an absence of publicly advertised, merit based selection processes over time' had resulted in a deferral of the AHRC's re-accreditation by the Global Alliance of National Human Rights Institutions, but acknowledged that these concerns had been partially addressed by the passage of the Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Act 2022.
Role of the Ombudsman
8.170A number of witnesses and submitters also considered the role of an Ombudsman in protecting human rights. Several Ombudsmen exist at the Commonwealth level. In addition to the Commonwealth Ombudsman, legislation also provides for the Fair Work Ombudsman and Telecommunications Industry Ombudsman. Numerous other ombudsmen, agencies and other bodies handle complaints, including in relation to human rights. The Commonwealth Ombudsman highlighted its existing role in human rights protection. It noted that its primary function is to be an independent and impartial body that handles complaints from people about Australian Government administrative actions and decisions, including by handling complaints and disclosures about government action. It stated that the complaints process has several benefits, including being: accessible and relatively informal; enabling individuals to have their concerns heard; and providing assurance to the broader community and Parliament that government agencies are acting fairly and reasonably. The Ombudsman noted that it does not have the power to direct an action or outcome, nor compel an agency to act on a recommendation, but stated that its administrative investigations and subsequent recommendations ‘can stimulate the sensitivity of an agency’s organisational culture to the human rights impacts of its decisions and influence systemic change’. It noted that it follows-up with agencies to confirm whether they have implemented the recommendations they accepted and stated that its reporting on this follow-up process demonstrates that agencies generally do implement the recommendations they accepted.
8.171In this regard, the Commonwealth Ombudsman, Mr Iain Anderson, stated that the Commonwealth Ombudsman aims ‘to do most of our business confidentially—that's the philosophical model for ombudsmen—but we have the ability to go public if we think that's appropriate’:
People can come to an ombudsman and complain about the actions of a government agency, and the ombudsman looks at that to say, 'Has the person been treated fairly, reasonably, lawfully?' and that sort of thing. The ombudsman has the power of a royal commission in terms of the ability to require people to give evidence to provide information and documents but can only make recommendations ultimately; it can't compel people to act on the recommendations of the ombudsman. The ombudsman can do this publicly, and that can be quite a powerful tool—transparently shining a light on the actions of government agencies and their willingness or unwillingness to act on matters that have been recommended to improve the way in which they engage with people.
8.172However, Mr Anderson indicated that, while the Commonwealth Ombudsman makes decisions that relate to human rights, it does not form a strict human rights conclusion in relation to complaints:
We certainly have regard to human rights case law and to statements of UN bodies and things like that. But ultimately what we are thinking about is: is it fair? Is it reasonable? For example, one of my roles is to give individual assessments to the immigration minister of people who've been in immigration detention for more than two years. When we look at that we look at both the legal context and statements of human rights principles, but we also look at the individual's own situation: their health, both mental and physical; their family relationships; their criminal record—all those sorts of things. What we're trying to do in that particular exercise is say, 'Are the arrangements for their detention at the moment appropriate, or should it be changed?' So it's not strictly a human rights conclusion, but it's informed by human rights principles along the way.
8.173However, the Refugee Advice and Casework Service noted that while the Ombudsman provides some oversight of immigration detention ‘this is considerably limited given that their recommendations and conclusions are not legally binding on the Department’.
8.174Ms Eastman AM SC argued that a Human Rights Ombudsman could be established, providing for a similar role to that of the Fair Work Ombudsman in the regulation of workplaces and fair work laws. She stated that a Human Rights Ombudsman could be vested with functions including: promoting a human rights dialogue, awareness and understanding of human rights;promoting compliance with a HRA; providing education, assistance and advice to public authorities and producing best practice guides to human rights, jointly or in cooperation with the AHRC; monitoring compliance of public authorities with a HRA; inquiring into, and investigate, any act or practice of a public authority that may be contrary to the HRA; commencing proceedings in a court to enforce the HRA; and referring matters to relevant authorities, if there are more appropriate remedies. She further stated that civil penalty orders for a breach of human rights ‘would shine a light on a public authority’s actions and be a means of holding a public authority accountable’, and that the option of a civil penalty as part of a suite of remedies should deter public authorities from engaging in unlawful conduct.
8.175This may be comparable to the Victorian Ombudsman whose functions include inquiring into or investigating whether administrative action is incompatible with a human right set out in the Charter, and if the action involves a decision whether there was a failure to give proper consideration to a relevant human right. In light of the Victorian experience, Dr Bruce Chen submitted that ‘jurisdiction should be given to the Commonwealth Ombudsman and National Anti-Corruption Commission to investigate human rights breaches by public authorities as part of their existing roles’.
Business and human rights
8.176Under the AHRC model businesses would not be bound by the HRA, as ‘public authority’ would be defined by reference to whether the authority is performing a public function (see Chapter 7). However, the AHRC model proposes that businesses and organisations should be able to voluntary opt in to accept responsibility to comply with a HRA. A number of submitters indicated their concern that an individual’s rights may be breached by businesses and private entities. Several submitters argued that a positive duty in a HRA should engage certain private businesses that may be acting on behalf of government, and agreed with the 'opt-in' clause for businesses to 'voluntarily accept responsibility to comply' with a HRA. However, the Australian Christian Lobby expressed concern that businesses would be incentivised to sign up to 'an ill-conceived, politically partisan vision of human rights culture' with 'little transparency and accountability for how it is implemented'.
8.177Other submitters felt that an 'opt-in' clause was too weak and that businesses should be required to protect human rights on the same basis as public authorities. The Environmental Defenders Office advocated for a HRA to 'impose a duty on businesses and other private actors to act consistently with human rights, and should include accessible remedies for harmful interference on human rights by private actors'. Liberty Victoria argued that 'opt-in' models had not been successful, observing that no private entities in the ACT or Queensland had yet opted in, and suggested that limiting human rights obligations to public authorities 'would be a missed opportunity'. However, the ACT Government indicated that seven private entities have opted in to the scheme, but of those listed as having opted in, none appear to be private businesses, but are more in the nature of non-government organisations (such as the Women’s Legal Centre and the ACT Disability, Aged and Carer Advocacy Service).
8.178The Human Rights Law Centre suggested:
To complement a federal Charter, Australia must consider enacting a broader mandatory human rights due diligence law that applies to all businesses operating within Australia (including their activities overseas). This would involve requiring businesses to undertake due diligence to identify, prevent and mitigate human rights and environmental harms, and to provide access to remedy for affected individuals and communities wherever harm occurs.
8.179A number of submitters identified ways in which the government can support business to uphold and protect human rights. The Australian Lawyers Alliance suggested that the government 'develop a government tender pre-qualification process in which prospective tenderers for government contracts have to satisfy, among other things, their capacity to adhere to the federal human rights charter', with an exemption for those that have opted in to the positive duty. Civil Liberties Australia noted:
Arguably the biggest gains in human rights in Australia over the past decade have been through corporate commitments widely adopted by the private sector, based on a clear understanding of the need for a stable, rules based and sustainable international and domestic business environment.
8.180The Minerals Council of Australia noted the difficulty for many businesses with the complexity and disparate nature of current human rights law, and called for 'an overarching framework that sets out the different objectives and obligations, where requirements overlap, and how legal conflict will be resolved to ensure a business can achieve compliance with each law without breaching another'. Similarly, KPMG Australia called for the government to develop 'a separate National Action Plan on Business and Human Rights', including 'a commitment, context, priorities, current and planned activities, and modalities of monitoring and update' in line with recommendations from the UN Working Group on Business and Human Rights.
8.181The Law Council of Australia emphasised that the government's role in protecting human rights includes a 'duty to protect individuals from rights abuse by third parties including business', and recommended it employ both legislative and administrative means to accomplish this. It suggested that government policies and procedures 'could have the practical effect of encouraging business compliance' with the UN Guiding Principles on Business and Human Rights. Australian Lawyers for Human Rights observed that a federal HRA would strengthen the government's efforts to require human rights due diligence from businesses.
8.182In a more specific suggestion, Mr Joshua Bollard recommended reform to the Modern Slavery Act 2018, arguing its lack of traditional penalties reduced the incentive for businesses to address instances of modern slavery within their supply chains.
8.183The AHRC summarised the steps which the Australian Government has previously taken at the UN level in relation to businesses and human rights:
In 2011, the Australian Government co‑sponsored the UN Human Rights Council resolution endorsing the UN Guiding Principles on Business and Human Rights (UNGPs). The Commission welcomes steps the Australian Government has made towards implementation of the UNGPs since the last UPR, including:
• reform of the Australia OECD National Contact Point
• passing the Modern Slavery Act 2018 (Cth)
• other efforts to combat modern slavery such as the regionally‑focused Bali Process.
The Human Rights Council and UN Working Group on Business and Human Rights (WGBHR) have called on States to adopt a National Action Plan on Business and Human Rights (NAP) as a means of implementing the UNGPs within their respective territories and jurisdictions.
The WGBHR has stressed that while legislative and other efforts to eliminate modern slavery are laudable they are not a substitute for full implementation of the UNGPs, including through developing a NAP. In October 2017, the Australian Government decided not to proceed with the development of a NAP.
8.184The AHRC recommended the government 'undertake a national consultation on the implementation of the UN Guiding Principles on Business and Human Rights'. It also recommended that the Australian Government develop a National Action Plan on Business and Human Rights:
A NAP would help clarify the expectations on business in relation to respecting human rights in Australia and overseas, highlight the role of government in supporting business, address policy and legal gaps and ensure there is a plan for implementation of the UNGPs that is targeted, transparent, measurable and informed by relevant stakeholders.
Monitoring progress on human rights
8.185A number of submitters suggested ways in which domestic progress in the protection of human rights could be tracked and monitored in Australia.
8.186Ms Sheehan (AGD) noted that a number of separate monitoring mechanisms do exist, and commented:
I think what might be useful for the committee, and what we would be thinking about and developing policy advice on, would be what's already in place. [There’s] a variety of monitoring and evaluation frameworks or ways of doing it. Obviously, there's not one system, such as the model that's proposed…Noting how broad human rights are and how many different policies and programs have human rights implications across government, there will be particular programs or policies that do have monitoring evaluation frameworks built into them. I'm thinking in particular of some of the national action plans that we have that would engage human rights issues.
8.187Ms Sheehan noted the existence of existing frameworks: the Closing the Gap implementation plan and the National Plan to End Violence against Women and Children. She stated that consideration is required as to how a central system would interact with specific frameworks that are in place for particular policies, and whether measurement would be at a high level or focusing on rights that the government wanted to pay particular attention to or track more closely.
National human rights indicator
8.188The AHRC called for the introduction of a national human rights indicator index in the form of an 'independent statutory agency'. They described indicators as providing 'concrete and practical ways to measure the realisation of human rights and track progress on implementation', and explained:
Indicators can be used as part of a broader process of systematic work to implement, monitor and fulfil human rights obligations. Indicator-based measurement frameworks are useful tools for turning complex concepts and standards into tangible and measurable outcomes. They can help law and policy makers more easily to identify where gaps in implementation are occurring and help advocates for human rights to use the language of technical measurement and science to ground their feedback to governments.
8.189The AHRC suggested that the Is Britain Fairer? model in the UK was a useful example.Is Britain Fairer? is a triennial report published by the UK Equality and Human Rights Commission reviewing the country’s performance on equality and human rights and tabled in the Parliament. It draws on a range of sources dealing with all grounds of discrimination and presents that data in relation to: education, work, living standards, health, justice and security, and participation. It utilises a Measurement Framework for Equality and Human Rights, which is itself based on the human rights indicator framework developed by the Office of the UN High Commissioner for Human Rights (OHCHR). The OHCHR framework:
[A]ims to assist in developing quantitative and qualitative indicators to measure progress in the implementation of international human rights norms and principles. The Guide describes the conceptual and methodological framework for human rights indicators recommended by international and national human rights mechanisms and used by a growing number of governmental and non-governmental actors. It provides concrete examples of human rights indicators, and other practical tools and illustrations, to support the realization of human rights at all levels. The Guide is targeted at human rights advocates as well as policymakers, development practitioners, statisticians and others.
8.190The Measurement Framework for Equality and Human Rights aims to monitor systematically the position of certain groups in relation to equality and human rights, using disaggregated data.
8.191The UK Equality and Human Rights Commission manages a Human Rights Tracker tool, a searchable online tool to track the UK’s implementation of recent recommendations from UN treaty bodies and the Universal Periodic Review process. In addition, the Human Rights Measurement Initiative is an online global human rights measurement initiative, which publishes data about human rights progress in relation to a number of countries. This organisation publishes detailed information regarding its methodology for data collection and analysis.
8.192The Law Council of Australia considered that a human rights indicator index could replace the 2012 National Action Plan. Both the AHRC and the Law Council noted that similar mechanisms are in place on Closing the Gap initiatives, but also acknowledged that an indicator would be a significant undertaking likely to take several years to establish. The implementation of an indicator index was supported by a number of other submitters.
8.193Amnesty International Australia noted that 'the importance of the development and application of appropriate indicators of human rights performance is increasingly being recognised internationally and within Australia', but that 'Australia has no mechanism with indicators to measure human rights progress'.
8.194The Queensland Human Rights Commission stated that it supports the development of a national human rights indicator index consistent with the measures it has sought to develop through its annual reports. The Queensland indicators relate to public entities measuring their own human rights outcomes (by reference to activities including education and consultation), and the measurement of human rights-related matters in the Parliament (including the number ofbills in which the proponent has indicated that the bill is incompatible with human rights, where statements of compatibility have been critiqued, and where a committee has made recommendations in relation to the human rights compatibility of a measure).
Annual government statement to Parliament
8.195The AHRC recommended 'a new mechanism by which [the government] announces key human rights priorities on an annual basis through a statement to Parliament'. It contended that this would allow the government to both identify problems and celebrate progress made over the course of a year. The Law Council of Australia felt that this could complement the existing parliamentary scrutiny mechanisms by 'assist[ing] with planning and prioritisation in terms of addressing national areas of human rights need'. This concept received support from a number of other submitters.
Departmental human rights action plans and annual reporting
8.196The AHRC recommended that federal departments and agencies should develop and implement human rights action plans, and that all public authorities subject to the HRA should be required to report on their HRA compliance as part of their annual reporting duties (including information about efforts to ensure compliance with the HRA, including training and education undertaken; the development of internal guidelines and protocols; and the conduct of any compliance audits). It stated that such reporting should also disclose data about any complaints made with respect to the HRA, both internally to the public authority, and externally to the AHRC or the courts (while respecting relevant privacy considerations). The same recommendation was made in 2009 in the National Human Rights Consultation report.
Findings by treaty bodies
8.197The AHRC has outlined the absence of an overarching consistent mechanism by which Australia reports, publishes, and regularly updates findings and recommendations made by UN treaty bodies about Australian laws, policies and practices as they relate to international human rights law. The AHRC stated that it is unacceptable that the Australian Government does not routinely inform theParliament of the outcomes of individual communications and concluding observations made by UN treaty committees.
8.198The UN Human Rights Council publishes documentation received from the Australian Government in relation to each UPR cycle, submissions from civil society in Australia, together with information relating to the review process and the outcome. However, the UPR process takes place only every four to five years (the most recent cycle was significantly delayed by the Covid-19 pandemic). At Australia’s first UPR in 2011, the then federal government undertook to tablethe Concluding Observations of all human rights treaty body appearances in Parliament, however this practice ceased around 2013. Findings are made by other UN bodies semi-regularly, including by special rapporteurs, treaty committees (for example, the Subcommittee on Prevention of Torture).
8.199In addition, Australia is a party to the complaints mechanisms for several international treaties, giving individuals the ability to bring an individual complaint about Australia at the international level and seek a decision. Numerous decisions have been made in relation to individuals in Australia that assess the compatibility of Australian laws and policies. However, there is no central database setting out those decisions, or outlining Australia’s response in relation to them. Indeed there is no process for routinely tabling in Parliament the outcomes of individual communications brought before the UN treaty committees. In this regard, the AHRC stated that Remedy Australia, a small voluntary non-government organisation, has taken on this role:
Remedy Australia, an NGO that monitors compliance with the recommendations arising from individual communications, notes that Australia’s implementation of recommendations from these communications is extremely low at approximately 12%. There is limited transparency and accountability for this.
8.200The AHRC recommended that the Parliament’s role in reviewing Australia’s implementation of its treaty obligations be updated, and in particular:
A. The Attorney‑General reinstate the practice of tabling Concluding Observations of human rights treaty committees in both houses of Parliament.
B. The Australian Government should maintain a publicly available and up to date database about the Concluding Observations made by each UN human rights treaty committee and their status.
C. The Government reform the Standing National Mechanism for Treaty Body Reporting to include public reporting on treaty bodies and individual communications.
D. The Attorney‑General table information about individual communications in Parliament on an annual basis, along with the Australian Government’s response to these.
E. The Parliamentary Joint Committee on Human Rights be empowered to review the adequacy of the Australian Government’s response to individual communications and/or Concluding Observations from time to time.
F. The Joint Standing Committee on Treaties conduct a review of all existing reservations and interpretive declarations under UN human rights treaties.
8.201Amnesty International Australia likewise recommended that there be a requirement for the government to periodically table reports in Parliament 'on how it is meeting its UPR commitments, UPR recommendations, and any voluntary pledges', and further noted that '[t]he absence of a formal response to the [UN treaty body] committees and national mechanism results in reviews where concerns raised previously have been left unaddressed for several years'.
8.202Ms Sheehan stated that one way of monitoring Australia’s implementation of human rights would be through the universal periodic review (UPR) process through the UN, noting that there is a tracking process associated with that process.
8.203Some submitters argued that a formalised parliamentary response from the government to the findings of international treaty bodies, which would then be scrutinised by this committee, would assist in tracking Australia's human rights progress. Professor Byrnes of the Australian Human Rights Institute, and former legal adviser to the committee, observed:
Many others have pursued a losing campaign thus far to say that, particularly when cases are decided against Australia, or the Commonwealth or the states, it is relevant to how we interpret and implement our human rights obligations. We have lost a few, and we have not lost a few, as a country. It seems to me, as a matter of just good practice and informing, that there should be some procedure for tabling those before the committee, or indeed the parliament, and in the case of state and territory parliaments as well, where their legislation is concerned ... A formal process might give the committee the opportunity to ask the government how it proposes to respond and explore that in a way that might lead to change.
8.204The Foundation for Aboriginal and Islander Research Action (FAIRA) also recommended that UN reports about Australia be assessed and reported on by this committee, and the committee should engage with civil society in the process of that assessment. Mr Les Malezer, Chairperson of FAIRA, expanded on this in evidence to the committee:
…we're proposing that parliament should receive reports on Australia's human rights performance which are coming from the treaty bodies. This is part of the international obligations. From my understanding, the Human Rights Commission report goes to the Attorney-General and gets tabled. There's really no debate that happens around that, and that's forgotten until the next year. These reports that come over from the seven treaty bodies—I think there's a report at least every five years. Then there are a number of annual reports about Australia's human rights performance. All go to the Attorney-General's Department. The Attorney General probably is briefed in relation to receiving the report but does not actually peruse or consider the reports, and the Attorney-General's Department will alert any other department that has been brought into the findings, concluding observations and so on. So the whole thing about Australia's human rights performance is basically handled by the bureaucrats, and one could take the cynical view—if you're a blackfella like me—that they bury these reports and they don't deal with the recommendations. I would say that you've probably had a thousand recommendations sitting there over the last two decades, including three UPR reports, for which nothing is done.
…we're saying that if you want to strengthen Australia's human rights system framework then, when reports are received not just about Aboriginal and Torres Strait Islander people but on human rights from these treaty bodies, they go to your parliamentary committee and the committee holds hearings on those reports so civil society gets to react, respond to and even see what is being reported…and then present that treaty body report along with their findings on it to the parliament for the parliament to then receive it.
8.205The UK-based Bonavero Institute of Human Rights noted that the UK JCHR 'monitors the UK government's response to the Universal Periodic Review (UPR) process' and recommended 'that the PJCHR monitor Australia's progress in implementing changes to which it has committed in the UPR process'. This could then contribute to future UPR processes, providing a closer link between Parliament and the UN treaty bodies.
8.206Voices of Influence Australia recommended that the government 'invest in a robust National Human Rights Digital Tracking Tool…to monitor recommendations made to Australia by the UN Treaty Bodies and the Universal Periodic Review (UPR)', with a public search function to enable the community to monitor the government's progress. In this regard, the UN has developed a free National Recommendations Tracking Database tool, currently available only to governments, to assist States in planning and tracking the realisation of their human rights obligations and the Sustainable Development Goals (SDGs).
Role of civil society in the UN process
8.207Civil society plays a central role in engaging with UN treaty processes. As set out by the AGD, civil society groups contribute to Australia’s periodic reporting to treaty bodies:
Periodic reports outline a State party's implementation of the relevant treaty and are due at intervals as specified in the relevant treaty. At this time, civil society and non-government organisations have the opportunity to submit shadow reports to the relevant United Nations human rights committee, outlining their views about how Australia is complying with its treaty obligations. A State party is then scheduled to appear before the relevant committee…receiving further questions from the committee about the content of Australia's report and other issues arising under the treaty.
8.208The 2010 National Human Rights Framework stated that the government would strengthen the relationship between government and NGOs by ‘bringing together the NGO Forums on Human Rights hosted by the Attorney-General and the Minister for Foreign Affairs, to ensure the forums provide a comprehensive consultation mechanism for discussion about domestic and international human rights issues’.
8.209AGD stated that since then 11 such forums have been held since that time. It stated that NGO forums provide an opportunity for government to consult with civil society:
…in order to better inform Australia’s human rights reporting, implementation and monitoring processes. They also provide a platform for the Australian Human Rights Commission and NGOs to identify issues for Australia to address in the lead up to treaty reporting processes and the Universal Periodic Review (UPR). This process does not replace or limit the ability of the Commission and civil society to provide direct, independent reports to the UPR.
8.210In 2016, the government introduced the Standing National Human Rights Mechanism (an inter-departmental committee) to further improve coordination across federal, state and territory governments, the AHRC and civil society in reporting and engaging with the UN on human rights. AGD stated that the Standing Mechanism’s functions include an annual NGO forum on human rights led by AGD.
8.211In contrast, the AHRC submitted that ‘at least one’ joint NGO Forum was held (jointly by AGD and the Minister for Foreign Affairs) before the practice was discontinued:
The Department of Foreign Affairs and Trade (DFAT) and the Attorney-General’s Department (AGD) had a longstanding practice of convening separate annual human rights forums. While DFAT has regularly maintained this and other engagement ahead of each session of the UN Human Rights Council, the conduct of NGO forums by the AGD has been more sporadic.
8.212In this regard, Associate Professor Debeljak submitted that NGO human rights forums have taken place in Australia in various forms since the 1990s, and therefore exist outside the Framework.
8.213Numerous witnesses and submitters argued that NGO forums should continue to take place, arguing that civil society plays a key role in human rights protection. The Law Council of Australia argued that NGO forums, as set out in the 2010 Framework, should be included in a new framework. Australian Lawyers for Human Rights submitted that a federal HRA should facilitate civil society engagement. Ms Elke Nicholson, a lawyer with Environmental Justice Australia, argued that having civil society and individuals involved in lawmaking and decision-making ‘is always going to be a good thing for society and for the advancement of human rights’. In this regard, Dr Cassandra Goldie, the CEO of the Australian Council of Social Service, highlighted the importance ofproperly resourcing NGOs to ensure ‘there is an enlivened civil society culture of advocacy’.
8.214Ms Natalie Lewis, Queensland Child and Family Commissioner, stated that her prior involvement in Australia’s UPR process with civil society facilitated an opportunity to provide information to challenge that being put forward by the Australian Government:
I was able to appear in Geneva as part of the pre sessions around the periodic review of the Convention on the Rights of the Child in a civil society capacity. It allowed an opportunity to put on the record some of the things that we know about, that we observe that amount to significant adverse impacts on the rights of Aboriginal and Torres Strait Islander children. Then to sort of sit back a few months later and watch the hearing of the Australian government presenting evidence, it sounded to me was like this collective chorus of 'there's nothing to see here'. I think that the importance of being able to contribute directly to processes like that and to bring about accountability for the stories, the experiences and the impacts, particularly on Aboriginal and Torres Strait Islander children that get lost in the aggregate data and the national narrative that is sold overseas about how we're doing for children in this country.
8.215Ms Emma Golledge, Director of the Kingsford Legal Service, noted that such advocacy and engagement has, for some time, occurred despite insufficient funding:
The National Human Rights Action Plan and framework have not been effective mechanisms to ensure a culture of human rights and human rights compliance. They have created a disconnected, ineffective human rights monitoring process in Australia and place large burdens on civil society to raise human rights concerns. It's notable to us that, during this time, there has been poor engagement with NGOs around Australia about the attainment of human rights, and key human rights institutions, such as the Human Rights Commission, have been insufficiently empowered to undertake this vital work. Civil society has continued to undertake key human rights monitoring with almost no funding and through regressive advocacy gags, which we welcome the removal of.
Human rights considerations at the state and territory level
8.216A number of submitters gave detailed evidence as to human rights concerns that mainly arise within the jurisdiction of the states and territories. As set out in Chapter4, the committee received many submissions setting a range of human rights concerns in Australia: including the over-policing of First Nations communities; prisoners and children in youth detention; state and territory based lockdowns during the COVID-19 pandemic; discrimination against the LGBTIQA+ community in home rental and health care; gender-based violence; lack of support for victim-survivors of crime; access to justice; and homelessness. These are all significant human rights concerns, however, much of the legislative responsibility for these concerns rests with the states and territories. While a federal human rights education program could assist in people better understanding their rights in relation to these areas, the proposed federal HRA model would not cover matters that fall within the responsibility of the states and territories (as set out in Chapter 7).
Leadership role
8.217Notwithstanding the division of legal powers between Australia’s states, territories and the Commonwealth, a number of submitters noted the important leadership role a federal HRA could play in relation to those states and territories that do not currently have a state or territory based HRA. The ACT Human Rights Commissioner said that ‘having a national framework may force those other jurisdictions to look at it seriously and see the benefits in other jurisdictions having human rights’. Numerous submitters and witnesses argued all states and territories should enact their own HRA legislation. In this regard, Australian Lawyers for Human Rights recommended:
…that the federal government place the enactment of state and territory Human Rights Acts in all remaining jurisdictions on the agenda of National Cabinet meetings, so as to ensure that all people in Australia enjoy the legal articulation and protection of their internationally recognised human rights, regardless of where they live within our federation.
8.218Further, other submitters noted the role a federal HRA could play in helping the community better understand human rights and ensure greater advocacy around rights. Associate Professor Grenfell submitted:
In South Australia we have seen the positive flow-on effects of the human rights culture which is being slowly established in federal parliament. Organisations that advocate for marginalised parts of the South Australian community use the analysis produced by the PJCHR to comprehend the sometimes quite complex interplay of state and federal laws and to assess their alignment with Australia's voluntary obligations under international human rights treaties. This is really palpable when it comes to complex areas such as guardianship and restrictive practices, where you have state and federal laws interlocking. The lack of human rights scrutiny in South Australia means that our interlocking state laws are out of alignment with our international obligations, and we are left looking to the federal level for some leadership. The black hole of rights scrutiny taking place in South Australia, which I think is also evident in New South Wales, WA and Tasmania, makes these federal proposals for strengthening human rights compliance even more critical.
8.219Similarly, while acknowledging the issues of federalism, Ms Jordan Frith, Deputy Consumer Co-Chair of the National Mental Health Consumer and Carer Forum, stated:
…one of the really important factors in having an Australian Human Rights Act that explicitly defines and respects the rights of people who are vulnerable, have disabilities, have mental health concerns or are at risk of involuntary detainment is that it gives us as community members more negotiating power when we're actually negotiating with the states and territories about what their specific policies should be. It also clearly standardises what those rights are at a fundamental level.
8.220In addition, some submitters suggested that the Standing Council of Attorneys-General could be a forum where human rights can be influential, with the federal Attorney-General using their position to put items to progress human rights on the agenda at such meetings. Further, the National Cabinet process could also provide a forum for regular consideration of such issues.
National coordination
8.221Some submitters also said that by having a federal HRA covering areas where there is shared responsibility this could ensure national coordination to better respect rights. For example, Ms Liz Snell, Law Reform and Policy Coordinator at the Women's Legal Service New South Wales, said, while there are different responsibilities at the federal, state and territory levels, a federal HRA would assist in areas where the federal government has responsibility and would ‘send a powerful message about the pervasiveness of gender-based violence and the need to address it’ across jurisdictions. In relation to this, Mx Giancarlo de Vera, Senior Manager of Policy of People with Disability Australia, explained:
I think there's an intangible benefit of having a federal act, in the sense that it provides ownership over inclusion at all levels of government. …[I]f we take the example of housing, that's a shared responsibility across different levels of government. There's a clear right to housing, and that's not debatable; but what is debatable is who is responsible for implementing that right. So, if we had a federal charter of human rights, hopefully we would have national coordination. That is what we would expect to see because there is the expectation that we're obliging by that right and, in doing so, doing it in a coordinated way at the national level; otherwise we're going to be seeing what we see already, and that's a devolvement to 'who's funding what and how are we going to do that', and we're not seeing any progress.
8.222Associate Professor Jessie Hohmann of the Economic, Social and Cultural Rights Network, in an answer to a question taken on notice, set out how a federal HRA would be important in protecting the right to housing, when it is the states and territories with primary power over housing. Associate Professor Hohmann set out how there are many policies within the federal government’s responsibility, such as taxation policy, regulation and resource allocation to the states and territories, and concluded:
That said, it is clear that the most effective way to protect the right to housing in Australia will be through effective coordination and cooperation among all levels of government. For this reason, harmonisation and coordination between States and Territories, and the Federal Government will be important in making any federal human rights legislation successful.Federal human rights legislation might also provide a model for those States and Territories that do not already have human rights legislation, pointing again to the importance of having a strong Federal model.
8.223In relation to uniform schemes and federal-state co‑operative schemes the AHRC’s model proposes that in practice a federal HRA’s effect on such schemes could be ‘dealt with on a case-by-case basis’ with ‘agreements to adopt the Human Rights Act in application to those specific laws, or exemptions made’. Further, in relation to state authorities that exercise public functions on behalf of the federal government, the AHRC noted these ‘may fall under the jurisdiction of both federal and state human rights instruments’ and that this could also be dealt with on a case-by-case basis ‘including through memorandums of understanding or the clarification of obligations through regulations’. Professor Byrnes also submitted that when proposals are being formulated as part of a joint scheme or harmonised legislation there would be an obligation on jurisdictions with a HRA ‘to make sure it is subject to a proper human rights scrutiny, and so far as possible within that framework to comply with human rights’.
8.224In addition Mr Graham Edgerton from the AHRC noted that if the Commonwealth were going to provide grants to the states and territories and that funding was tied to certain commitments, a federal HRA should mean that the obligations it chooses to impose on states should be compliant with human rights. Professor Byrnes also noted there may be possibilities for the federal government to include human rights considerations in funding envelopes when making grants to the states and territories.