Chapter 9Committee views and recommendations

Overview

9.1Australia is a robust multicultural democracy with a strong tradition of believing in a ‘fair go’ for all. For many, our current system of rights protection, across the common law, Constitution and legislation, is sufficient to protect their interests. We have a system of governance, representative democracy and separation of powers that we can rightly be proud of. Yet, for those whose rights are not protected in practice, the lack of a comprehensive and enforceable federal human rights framework is striking. Submissions not only to this inquiry, but to the many others that have preceded it, are clear. There are significant human rights problems in Australia that must be addressed, ranging from our relationship with Aboriginal and Torres Strait Islander peoples, protection of privacy in the digital age and the treatment of minority groups (see chapter 4 for detailed consideration of the concerns raised by submitters). The committee acknowledges that the founding of this country was based on the abuse of human rights of the First Peoples of this land, who were the first custodians and defenders of human rights, and recognises the special significance of human rights for Aboriginal and Torres Strait Islander peoples. This includes the right to self-determination which includes the rights held in collective possession by the members of the Aboriginal and Torres Strait Islander nations which confers usage, access and custodianship to the lands, waters, minerals and natural resources of Australia.

9.2The committee has been tasked with reviewing the scope and effectiveness of Australia’s Human Rights Framework (Framework), released in 2010, and whether it should be re-established or improved. In undertaking this task, it is important to consider that the Framework was developed in response to the 2009 National Human Rights Consultation. This consultation was established with the aim of determining whether human rights are sufficiently protected and promoted in Australia. During the ten months of consultation in2009, over 35000 submissions were received (the largest number for any national consultation in Australia), and about 6000 people registered to attend 66community roundtables held in 52 locations around Australia. The consultation committee met with a variety of organisations and experts, commissioned dedicated social and economic research, and focus groups, and facilitated an online forum. After 10months of listening to the people of Australia, the consultation committee reported that they were ‘left in no doubt that the protection and promotion of human rights is a matter of national importance’ but that our current system does not always ensure human rights are adequately protected. The consultation committee found a lack of understanding among Australians of what human rights are and, in addition to recommending a significant investment in human rights education and reforms to parliamentary scrutiny, the consultation committee’s main recommendation was that Australia adopt a federal Human Rights Act(HRA). Yet the 2010 Framework failed to commit to a HRA on the basis that, despite significant support for it, a HRA may divide the community.

9.3The 2010 Framework is now largely non-existent. The only lasting part of the Framework was that established via legislation – namely the creation of this committee and the requirement for statements of compatibility to accompany legislation. All other aspects of the Framework were abandoned shortly after its adoption following a change of government. By failing to legislate an enforceable requirement for government to consider people’s rights when making decisions, the Framework’s aims, while laudable, were largely ineffective.

9.4In the 15 years since the National Consultation on Human Rights, it does not appear that an understanding of, and commitment to, human rights have become a part of everyday life in Australia. Given funding for community education and engagement programs was discontinued over a decade ago, and based on the evidence to this inquiry, it seems likely that the findings of the National Consultation that ‘Australians know little about their human rights – what they are, where they come from and how they are protected’,[1] remains as relevant in 2024 as it did 15 years ago. Since the Framework was launched, there have been multiple examples of the failure of our federal institutions to adequately consider people’s human rights, notably exposed by royal commissions into Robodebt; the violence, abuse, neglect and exploitation of people with disability; and aged care quality and safety. The federal government’s response to the Covid-19 pandemic also largely failed to reference the importance of respecting human rights.

9.5Over the past five years, the Australian Human Rights Commission (AHRC) has been working to identify the principles and key elements that would make up an effective system of human rights protection in Australia. It has held conferences, workshops, roundtables and consultations with hundreds of participants, and has put forward a dialogue model for a statutory Human Rights Act, designed to help ensure that laws, policies and decisions are made through a human rights lens. The recent Disability Royal Commission also recommended a national Disability Rights Act, building on the AHRC’s model for a HRA.

9.6The statutory model of a HRA respects parliamentary sovereignty – ensuring our elected representatives can continue to make the laws Parliament deems necessary. But with a HRA in place, Parliament would need to expressly consider human rights when making laws, and importantly, public authorities, including government departments, agencies and the Australian Federal Police, would need to consider rights when making decisions and act compatibly with rights (unless Parliament had directed them to do otherwise). Submitters to this inquiry were overwhelmingly in favour of the introduction of a HRA – of the 335 submissions received, 87 per cent supported the introduction of a HRA and only fourper cent either opposed having a HRA or opposed the AHRC’s specific model. Over 4000 campaign letters were also in support. This aligns with submissions to the 2009 National Human Rights Consultation, where, of the more than 32000 submissions that considered whether Australia should have a HRA, over 85 per cent were in favour.[2]

9.7The committee considers that there is a clear need for a rights-based legal framework. Our current piecemeal approach to human rights protection is not adequate to ensure rights and freedoms are properly respected, protected or promoted. The committee considers that a HRA would be a framework by which the public sector can look at legislation, policies, practices and service delivery and consider their impact on individuals. The 2010 Framework failed to ensure human rights were made real in everyday decision-making – the current approach appears to restrict human rights considerations as an afterthought, a last-minute tick of approval at the end of the legislative process, and not embedded in the public sector’s culture. The committee considers that a HRA could help embed a rights-respecting culture by creating an expectation that human rights will be considered throughout the process, where considering the effect of government action on individuals becomes an upfront consideration, embedded ahead of any dispute.

9.8Australia is the only liberal democracy not to have a national Act or Charter of human rights protection. Evidence from other jurisdictions, both within Australia and internationally, is that the floodgates have not opened – a HRA has not led to overwhelming litigation or a ‘lawyer’s picnic’. Under the AHRC model, supported by the committee, a person affected by a public authority’s actions could bring a complaint to the AHRC for conciliation, and if that fails, to the federal courts. As with all laws, judges would then, in a small number of cases, need to consider the application of the HRA in those individual circumstances. This is something our courts do every day when interpreting statutes, the Constitution or applying common law principles, and the committee considers it appropriate for the courts to adjudicate disputes regarding a HRA that cannot be solved via conciliation. Of course, if Parliament has authorised the public authority to act in a way that is incompatible with rights, the duties under the HRA would not apply. This is also appropriate within the model that protects parliamentary sovereignty. The committee does not agree that rights protection should sit within the Constitution as is the case with bills of rights, such as in the United States of America. The committee considers the preferable model is that which retains parliamentary sovereignty and opens up a dialogue between the branches of government, rather than allowing judges to strike down laws. The committee considers that the AHRC model, on the whole, strikes the right balance between protecting individual rights and freedoms and respecting parliamentary sovereignty and our constitutional system.

9.9While a HRA is essential to ensure rights protection is enforceable, simply having the law is not enough to achieve human rights protection. There needs to be a more coordinated and consistent framework to build a rights respecting culture. As such, the committee considers that a National Human Rights Framework should be reestablished. Such a framework should encompass a HRA, but should additionally have a focus on education – to educate the community, including school children, as to their rights and protections under Australian law. As already mentioned, the committee considers that a HRA will help to build a culture to make human rights real in everyday interactions with government – but this will require leadership, ongoing training of the public sector and process changes to properly embed rights considerations in decision-making. The committee also sees the role of this committee, and the AHRC, as essential in building that rights culture and considers a human rights framework should include enhancements to both. The committee also considers that there is a need to do what was committed to under the 2010 Framework but never carried out – namely, a review of existing federal legislation for compliance with human rights. Finally, the committee considers there are a number of measures that should be taken to monitor Australia’s progress on implementing its human rights obligations, which should also form part of the framework. The committee’s specific recommendations regarding these are set out in more detail below.

9.10In recommending a revised and expanded National Human Rights Framework, it is important to note that not all human rights concerns existing in Australia can be solved by a federal framework of protection. While Australia owes obligations under its international treaties to respect, protect and promote human rights to everyone within its jurisdiction, Australia’s model of federation means it is not within the federal government’s power to address concerns falling within the remit of the states and territories. For example, concerns regarding over-policing of Aboriginal and Torres Strait Islander 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 all do not neatly fall within the federal government’s jurisdiction. Residents of Victoria, Queensland and the ACT can rely on their state or territory based HRAs to seek to enforce human rights breaches arising at the state and territory level. But residents of the other states and territories have no such recourse, and a federal framework will not directly help them in dealing with state and territory public authorities. The committee is concerned that a number of submitters appeared to believe that a federal HRA could solve some of these concerns, and considers it is imperative that community education programs should make clear the different roles of the federal and state and territory governments in this area. The committee also considers that, over time, progress should be made towards all states and territories having their own HRA to ensure all Australians receive the same protection of rights regardless of residence.

9.11The committee recommends that the government re-establish and significantly improve Australia’s Human Rights Framework, which should include:

comprehensive and effective protection of human rights in legislation, through the establishment of a Human Rights Act;

a significant and ongoing commitment to national human rights education;

requirements for public servants to fully consider human rights in the development of legislation and policies;

enhancements to human rights parliamentary scrutiny;

enhancements to the role of the Australian Human Rights Commission;

review of Australia’s legislation, policies and practices for compliance with human rights; and

measures to monitor progress on human rights.

Human Rights Act

9.12The committee received a significant amount of evidence regarding what a HRA should look like. The committee’s starting point, when seeking submissions, was to ask submitters whether we should enact a federal HRA and if so, what elements it should include – particularly by reference to the AHRC’s proposed model. The committee considers the AHRC’s model should be the starting point, noting the significant amount of time and work done in developing it. Most submitters supported the AHRC’s model, however, there were varying degrees of support for specific elements of the model, including about how particular rights were framed.

9.13On the whole, the committee considers the AHRC’s model provides a balanced approach between ensuring appropriate protection of rights and providing a workable model that respects parliamentary sovereignty. There are aspects of the model the committee considers could be improved, as detailed below. In order to promote understanding of the proposed HRA model, the committee has provided (in Appendix 5) a draft bill setting out how a HRA could look. In doing so, the committee has taken the wording used in the AHRC model and an amalgamation of provisions from the ACT, Victorian and Queensland HRAs and noted where further work would need to be done. The committee intends its draft bill to be a useful starting point for government to further develop a HRA based on advice contained in submissions to this inquiry and having received advice from the Australian Government Solicitor.

What rights to protect?

9.14The AHRC’s model for a HRA would incorporate human rights derived from the core international human rights treaties to which Australia is party. This would include civil and political rights as well as economic, social and cultural rights. The committee considers that the AHRC’s model would effectively protect the vast majority of human rights. In particular, the AHRC’s model comprehensively protects most civil and political rights, with a few exceptions. The committee notes that the AHRC has suggested including the right to self-determination within a preamble as an overarching principle of a HRA rather than a stand-alone right due, in part, to the vagueness and complexity of the term. The committee acknowledges the complexity of including this right within a HRA, particularly noting it is a collective right of 'peoples' rather than individuals. However, noting the particular significance of this right to Aboriginal and Torres Strait Islander people, the committee considers further legal advice should be sought as to whether the right to self-determination could be included in a HRA as an enforceable collective right, including advice from relevant Aboriginal and Torres Strait Islander experts.

9.15Regarding economic, social and cultural rights, the committee considers the AHRC’s model to be a sound and balanced starting point. The committee reiterates that human rights are indivisible and interrelated. Many civil and political rights cannot be fully realised without the fulfilment and protection of economic, social and cultural rights. For this reason, the committee considers that it is essential that economic, social and cultural rights be protected in a federal HRA. Indeed, so much of what people experience as human rights breaches in their everyday life relate to economic, social and cultural rights. The recent royal commissions into Robodebt; the violence, abuse, neglect and exploitation of people with disability; and aged care quality and safety, demonstrated that people’s rights to social security; health; an adequate standard of living; and the rights of older people and persons with disability, need better protection. Protecting these economic, social and cultural rights in a HRA is necessary to ensure that every Australian can access the basic necessities to live a dignified life and reach their full potential. In doing so, Australia would more fulsomely comply with its obligations under international law to respect, protect and promote human rights.

9.16As to the specific economic, social and cultural rights that should be protected, the committee agrees with the AHRC’s proposal to include the rights to education, health, work, culture, an adequate standard of living, social security and a healthy environment. The committee notes that state and territory HRAs protect a number of these rights but not all. In this regard, the AHRC’s model would afford greater protection to economic, social and cultural rights than equivalent state and territory HRAs. The committee considers this more expansive approach to be necessary given the fundamental importance of these rights to the everyday lives of Australians. It also provides the Commonwealth with an opportunity to show leadership on this issue. The committee acknowledges that while the protection of certain rights, such as the rights to housing and education, would more clearly fall within the jurisdiction of state and territory governments the Commonwealth nonetheless has an important role to play in realising these rights through policy, grants and regulation. Importantly, notwithstanding the division of responsibilities between the federal, state and territory governments, the obligation to protect these rights under our international treaty obligations ultimately falls on the Commonwealth.

9.17Further, the committee supports the AHRC’s proposal to include the right to a healthy environment. The committee considers that protecting the right to a healthy environment is indispensable for realising other human rights. Access to safe and uncontaminated water, and clean air and soil, are necessary preconditions to realise the rights to health and an adequate standard of living, for example. Likewise, a failure to protect the environment can lead to the violation of human rights, such as the rights to a private life and culture. The committee also notes that this right is recognised in the domestic legislation of approximately 80 per cent of UN member states and is being considered for inclusion in the ACT Human Rights Act 2004.

9.18In considering how to frame economic, social and cultural rights in a federal HRA, the committee needed to think about potential constitutional issues. A key issue was whether these rights could be framed in a way that is sufficiently definite and judicially manageable so that they are compatible with the Constitution. Based on the evidence received, including from leading legal experts, the committee considers that economic, social and cultural rights are likely to be justiciable and can be framed in a constitutionally sound manner. Nevertheless, the committee agrees with the AHRC’s suggestion to seek updated advice from the Solicitor-General on this question in order to avoid potential constitutional challenges.

9.19In light of these constitutional issues, the AHRC model suggests framing economic, social and cultural rights more narrowly to include the essential and immediately realisable aspects of these rights. The model further proposes to not require the courts to consider progressive realisation principles with respect to economic, social and cultural rights. The committee notes that the progressive realisation of economic, social and cultural rights involves complex decisions about resource allocation and public policy. The committee agrees with the AHRC that these decisions are best left to the government and the Parliament, not the courts. There are various ways outside the courts in which economic, social and cultural rights can be progressively realised, such as through the establishment of effective processes for monitoring the implementation of rights, including by setting human rights indicators and benchmarks. The committee considers such measures to be of vital importance given Australia’s general obligation under international human rights law to progressively realise these rights. The committee suggests, however, that this approach to progressive realisation be reviewed within five years to ensure it is working as intended.

9.20The committee further considers that the immediately realisable aspects of economic, social and cultural rights should be protected. Obligations with immediate effect include requiring the government to ensure that people enjoy economic, social and cultural rights without discrimination; satisfy, at the very least, certain minimum aspects of these rights; and not take backwards steps (known as ‘retrogressive measures’) with respect to these rights. The committee considers that it is particularly important that a HRA incorporate the presumption against retrogressive measures. This would mean that public authorities would have a duty to not unjustifiably take deliberate steps that would negatively affect the enjoyment of those economic, social and cultural rights protected in a HRA (unless Parliament has directed them to do otherwise). In the committee’s experience, economic, social and cultural rights are most frequently limited when backwards steps are taken.

9.21With respect to the proposed wording of the rights, the committee notes that the AHRC model largely reflects the wording used in equivalent provisions in state and territory HRAs, with some adjustments to clarify or better reflect international law. Some submitters raised concerns that the AHRC model diverges too substantially from the text of the international treaties and in doing so restricts the scope of certain rights or possibly assigns new meaning to certain rights. For example, some submitters were concerned that the AHRC’s model extensively redrafted the right to freedom of religion such that there was no differentiation between those elements of the right that are absolute and those that may be subject to permissible limitations, and certain elements of the right were removed and incorporated into other rights. Some submitters were also concerned that the AHRC’s proposed rewording of the prohibition of torture or cruel, inhuman or degrading treatment or punishment, protected in article 7 of the ICCPR, may have the effect of broadening the scope of the right and altering its meaning. The committee considers that many of these concerns can be alleviated through careful drafting of civil and political rights, including the right to freedom of religion and the prohibition of torture or cruel, inhuman or degrading treatment or punishment, to ensure the rights fully align with international human rights law, including with respect to absolute rights.

9.22The committee notes that similar concerns were also raised with respect to the proposed wording of certain economic, social and cultural rights, including the right to a healthy environment. The committee acknowledges the challenge of drafting these various rights in a way that is consistent with international law and, where appropriate, sufficiently flexible to evolve in line with international human rights law jurisprudence, while ensuring the rights are precise enough to be constitutional as well as being sufficiently clear so that public authorities can interpret and apply the rights. The committee considers that, so far as is constitutionally possible, the economic, social and cultural rights should reflect international human rights law (except with respect to the principle of progressive realisation) and should include the immediately realisable aspects of these rights.

9.23Finally, the committee notes that the AHRC’s model does not include certain rights contained in the treaties. In particular, the right of aliens not to be expelled without due process and the prohibition against advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, protected in articles 13 and 20 of the International Covenant on Civil and Political Rights (ICCPR) respectively, are not expressly protected in the AHRC’s model. Further, the right of all persons to take part in cultural life and enjoy the benefits of scientific progress and its applications as provided under article 15 of the International Covenant on Economic, Social and Cultural Rights (ISESCR) is missing from the AHRC model. The committee considers that the rights in articles 13 and 20 of the ICCPR and article 15 of the ICESCR should be captured in any HRA, either through embedding the substance of the right in related rights or protecting them as stand-alone rights.

9.24The committee also received evidence that other rights relating to specific groups, such as Aboriginal and Torres Strait Islander people, children, people with disabilities, older persons and victim-survivors of crime, should be protected in addition to those rights set out in the AHRC’s model. The committee acknowledges the importance of protecting the rights of specific vulnerable groups, particularly in light of their experience of systemic discrimination. However, the committee considers that the AHRC’s model would adequately protect the rights of these specific groups, noting that many of these specific rights are drawn from the core rights contained in the ICCPR and the International Convention on Economic, Social and Cultural Rights (ICESCR). The committee also notes that those rights proposed for inclusion in a HRA would apply to all persons without discrimination. There are also some rights that would afford protection to specific groups, such as the rights protecting children and the right to culture for Aboriginal and Torres Strait Islander peoples. Additionally, an interpretive clause would require a HRA to be interpreted in light of international human rights instruments, which would include subject matter specific treaties such as the Convention on the Rights of Persons with Disabilities and the United Nations Declaration on the Rights of Indigenous Peoples. The committee understands that applying this interpretive clause in practice is a complex task, particularly in light of the volume of international human rights law. The committee therefore suggests that a HRA include notes referring to the equivalent rights in subject matter specific treaties. For example, with respect to the right to recognition and equality before the law, a note could refer readers to the equivalent article 12 in the Convention on the Rights of Persons with Disabilities, which reaffirms the right of people with disability to recognition everywhere as persons before the law and the right to enjoy legal capacity on an equal basis with others in all aspects of life. The right to culture, for example, could include a note referring to the relevant provisions in the United Nations Declaration on the Rights of Indigenous Peoples. The committee also considers that a HRA should be accompanied by detailed guidance material, which clearly sets out the nature and content of each right and how the rights are to be interpreted in light of international human rights law, including with specific reference to the various subject matter specific treaties and related jurisprudence.

A Human Rights Act model

9.25The AHRC’s model for a HRA outlines the key features which would govern who the Act would protect, who it would impose obligations on, and how people could make complaints and access remedies if their rights under the Act were to be breached. Broadly speaking, the committee considers the adoption of such a model would be a sensible and appropriate first federal HRA, one which could be reviewed and amended over time as necessary. The committee below summarises the AHRC’s model and sets out what the committee considers the HRA should cover.

Jurisdiction and commencement

9.26A HRA should protect all people within Australia’s territory without discrimination, meaning that it should apply to citizens and non-citizens in Australia. It should also apply in relation to people outside Australia’s geographical territory, but who are nevertheless subject to Australia’s jurisdiction (including when they are located overseas but subject to Australia’s effective control). This kind of extended geographical jurisdiction applies to many federal Australian laws, and it would be appropriate for it to apply under a HRA.

9.27The committee considers that providing for a minimum twelve-month transition period before the HRA comes into force, after Royal Assent, would be prudent. It would provide time for specialised resources to be developed, training programs to be developed and delivered, and public authorities to familiarise themselves with their new obligations.

Coverage

9.28A HRA should apply only to federal laws. As noted above, Australia’s model of federation means that the federal government does not have the power to regulate matters that fall within the remit of the states and territories. As such, a federal HRA should not (and constitutionally, could not) apply in relation to state laws, such as a Western Australian law relating to state prisons, or a South Australian law regulating state hospitals. Equally, state and territory human rights laws should continue to operate unaffected by the introduction of federal human rights protection.

A positive duty on public authorities

9.29A federal HRA should apply to public authorities. It should impose obligations on federal departments, agencies and other federal public bodies. It should also apply to organisations such as private businesses, non-government organisations and contractors where they are performing public functions. The AHRC indicated that there were constitutional concerns associated with such a duty applying to federal courts. However, the committee also heard evidence suggesting that this could be resolved and there are benefits in the courts developing the common law in line with human rights. The committee considers that the government should seek advice on whether courts could be included in the definition of public authorities. Businesses and organisations should be able to voluntarily opt in to accept responsibility to comply with a HRA.

9.30A federal HRA should impose a positive duty on these public authorities, requiring them: to act in a way that is compatible with the human rights included in the HRA; and to give proper consideration to those rights when making decisions. It should also impose two procedural duties: a binding procedural obligation to engage in participation processes where a decision disproportionately affects the rights of Aboriginal or Torres Strait Islander people, people with disability, or children. With time, consideration should be given to whether similar consultation should be required in relation to further groups. The committee considers that a significant amount of work would need to be undertaken to flesh out the specific aspects of this duty (for example, which groups public authorities would need to consult with, how that is to be determined and at what threshold groups or individuals are likely to be ‘disproportionately affected’ by a decision). Extensive guidance material would also need to be developed by the government to assist public authorities to understand the obligations under this duty.

9.31It should also include a positive duty on public authorities to realise access to justice principles, including by providing (for example) sufficient access to legal assistance, interpreters and disability support to people navigating the justice system. This would not affect all public authorities in practice.

9.32This positive duty would not apply where the public authority could not reasonably have acted differently or made a different decision in accordance with the law. If a law, such as an Act of Parliament, requires the decision-maker to take certain actions, the duty on the public authority to act compatibly with human rights or consider human rights would not apply. This would preserve parliamentary sovereignty.

Limitations on rights

9.33Most human rights may be subject to permissible limitations, broadly where those limitations are reasonable, necessary and proportionate, but subject to a number of specific considerations in relation to individual rights. While a federal HRA must recognise that most rights may be limited, practically it would be a challenge to replicate the myriad specific limitation criteria in relation to specific rights. A federal HRA should include one general limitation clause based on the tests at international human rights law, and excluding those rights (and aspects of rights) which are absolute and may never be limited under international law. Legislative notes in relation to specific rights that have specific limitations clauses under international law could be added where relevant (for example, the right to freedom of religion can only be limited on the basis of certain specific grounds).

Interpretive clause

9.34A federal HRA should include a clause directing that it is to be interpreted by reference to international law. This would ensure that it continues to reflect international law as it develops over time. It would also ensure that the rights contained in specific treaties, such as UNDRIP or the Convention on the Rights of Persons with Disabilities, would form part of how the rights are to be interpreted (as set out above). Further, it should include a direction that all Commonwealth legislation is to be interpreted, so far as is reasonably possible, in a manner that is consistent with human rights.

Incompatible federal laws

9.35Australia’s state and territory HRAs provide that if a court cannot reasonably interpret a law in a manner that is consistent with human rights through applying the interpretive clause, it may issue a ‘declaration of incompatibility’ to notify Parliament that a law is considered incompatible, and trigger a review of the law. The AHRC model does not propose including this as it is likely to be unconstitutional at the federal level. The AHRC proposed an alternative to address this constitutionality issue – namely, that where a court has found a parliamentary intention to override human rights contained in a HRA, the Attorney-General should be required to trigger a process for reviewing the law in question. However, the committee received evidence that this may also raise constitutional issues. As such, the committee considers that where a court has found that a federal law is incompatible with the federal HRA, there should be no formal trigger in legislation. Instead, the Attorney-General’s Department(AGD) should, as a matter of practice, review all cases involving the HRA and this should be considered as part of the process of review of legislation and be considered by the Secretaries Board (see recommendations 16 and 9).

9.36The Victorian and Queensland HRAs both include provisions providing that Parliament may expressly declare that an Act, or a provision of an Act, has effect despite being incompatible with one or more human rights (an ‘override provision’). Based on the evidence to the committee, the committee does not propose that a federal HRA should include such an override provision. This does not mean that the Parliament may not make legislation which cannot be interpreted in a way that is inconsistent with rights included in a HRA, but rather that it may not expressly override its operation.

Enforcement

9.37A federal HRA should enable a person to make a complaint to the AHRC for conciliation and enable them to bring a stand-alone cause of action to the federal courts. While most complaints should begin with conciliation, there will undoubtedly be circumstances in which conciliation would not be appropriate, and so going to court directly should also be possible. Both individuals and representative bodies should have legal standing to bring claims under a HRA, and the Act should include protection for individuals from adverse costs orders. The committee notes that the AHRC’s model provides limited discussion as to the precise nature of such orders, and the committee considers that the recent review into an appropriate cost model for Commonwealth anti-discrimination laws could apply in relation to cases taken under a HRA.

9.38The AHRC considered that ordinary judicial review could proceed either as an alternative to, or in addition to, a direct cause of action under the HRA. However, the committee heard expert legal evidence raising some concerns as to how judicial review of a decision under the HRA should best be expressed. The committee considers that it would be prudent for the government to obtain legal advice in relation to this question.

9.39The AHRC also recommended that serious consideration be given to reintroducing an intermediate adjudicative process to bridge the gap between voluntary conciliation in the AHRC and litigation in the federal courts, in relation to unlawful discrimination matters. The committee noted evidence suggesting that there may be scope for the AHRC (or another body) to be validly granted such a power. Noting, however, the constitutional and other legal issues associated with this, and given the significance of the proposal, the committee considers that it would also be prudent for the government to obtain legal advice in relation to this.

Remedies

9.40A court should have the discretion to order a range of remedies under a HRA, including injunctions, orders requiring action, monetary damages and the setting aside of administrative decisions. The committee considers that the availability of damages should be subject to clear guidance. Further, flexibility as to remedies will be crucial to the effective operation of a HRA. In this respect, consideration should be given to the availability to provide for remedies to address systemic human rights issues (such as, inquiries or class actions) (see further recommendation 14 regarding the AHRC’s role).

Review of HRA

9.41Lastly, a HRA should include a provision requiring it to be reviewed after five years operation. There may be aspects of a HRA which do not operate as intended, or in the most effective manner possible, or rights not adequately protected. A review would be a critical to ensure this can be considered, and would provide an opportunity for members of the community and civil society to provide structured feedback regarding its operation, and suggest amendments where necessary. The committee considers, in particular, that the review could consider whether progressive realisation principles should be incorporated and whether additional rights (and/or additional or revised participation or consultation obligations) relating to specific groups, such as Aboriginal and Torres Strait Islander people, people with disability, children, older persons and victim-survivors of crime, should be included.

9.42The committee recommends that the government introduce legislation to establish a Human Rights Act. The committee considers the bill should broadly reflect the model proposed by the Australian Human Rights Commission, with the following modifications and considerations (the committee has prepared an example Human Rights Bill, see Appendix 5, in order to promote understanding of this proposed model):

ensure the drafting of all rights and freedoms:

-is consistent with international human rights law (except with respect to the principle of progressive realisation in relation to economic, social and cultural rights). This should include ensuring rights, such as the right to freedom of religion and the prohibition of torture or cruel, inhuman or degrading treatment or punishment, are drafted consistently with the provisions of the International Covenant on Civil and Political Rights;

-includes legislative notes where relevant to indicate if more specific limitation criteria apply under international human rights law to those rights (for example, the right to freedom of religion);

-captures the immediately realisable aspects of economic, social and cultural rights, including obligations to ensure people enjoy rights without discrimination; satisfy certain minimum aspects of these rights; and not take backwards steps (or ‘retrogressive measures’) with respect to these rights;

-captures the right of aliens not to be expelled without due process; the prohibition against advocacy of national, racial or religious hatred; and the right of all persons to take part in cultural life and to enjoy the benefits of scientific progress and its applications;

-includes, where appropriate, notes referring to the elaboration of these rights in other United Nations (UN) treaties and the United Nations Declaration on the Rights of Indigenous Peoples, and is accompanied by detailed guidance materials to assist public authorities in interpreting and applying the law;

consult with Aboriginal and Torres Strait Islander peoples in relation to the framing of Indigenous peoples’ right to culture to ensure it adequately captures all applicable rights under international human rights law;

further consideration be given to the drafting of the right to a healthy environment, including consultation with Aboriginal and Torres Strait Islander peoples on how best to recognise the relationship between the right to a healthy environment and the rights to culture, health and self-determination for Aboriginal and Torres Strait Islander peoples;

allow cases to be brought directly to a federal court, without the need for conciliation, when conciliation is not appropriate;

specific provision should be made to protect individuals from adverse costs orders when bringing action against public authorities under a HRA, in line with the government’s proposed equal access cost protection provisions for federal anti-discrimination claims (see Australian Human Rights Commission Amendment (Costs Protection) Bill 2023); and

the first review of the Act should specifically be required to consider whether:

-progressive realisation principles should be incorporated; and

-additional rights relating to specific groups, such as Aboriginal and Torres Strait Islander people, people with disability, children, older persons and victim-survivors of crime, should be included.

9.43The committee recommends the government seek legal advice as to:

whether the collective right to self-determination could be recognised as a stand-alone right in a Human Rights Act (HRA);

whether requiring the Attorney-General to monitor court cases involving a HRA and reporting to Parliament would raise constitutional issues;

the appropriateness of including compliance with duties under a HRA as part of a judicial review claim;

whether including courts in the definition of public authorities would raise constitutional issues; and

whether there is a constitutionally sound way of reintroducing an intermediate adjudicative process that could determine complaints under the proposed HRA (a process sitting between conciliation by the Australian Human Rights Commission and litigation at the federal courts).

9.44The committee recommends the government consult with Aboriginal and Torres Strait Islander people, people with disability, children’s groups, civil society and other experts on how the proposed participation duty and equal access to justice duty should operate, including whether it adequately captures the principle of free, prior and informed consent. Following this, the committee recommends the government develop detailed guidance material to assist public authorities to understand their specific obligations under these duties.

National human rights education

9.45As set out above, the committee thinks it is imperative that people understand what human rights are and how they are protected. It is concerning that surveys show that half of all Australians think that Australia already has a HRA (with only 15 per cent being aware that we do not).[3] The National Human Rights Consultation recommended that education be the highest priority for improving and protecting human rights in Australia, on the basis 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 levels of understanding and reducing levels of fear and ignorance. Yet, in the 15 years since that report, human rights education has not been prioritised.

9.46The committee considers there is an urgent need to fund the AHRC and non-government organisations to make training available to all sectors of the community, including the private sector and media. In doing so, the committee considers that this should be done in consultation with different community groups, including Aboriginal and Torres Strait Islander people, having due regard for the importance of divergent traditions and their points of intersection with the values that underwrite a commitment to human rights. The respective roles of the federal government and the states and territories in protecting rights within our constitutional structure should also form part of such an education program.

9.47Submitters also discussed the importance of human rights education in schools. The committee considers human rights awareness should be fully incorporated into the Australian curriculum. The committee considers that one of the values of a domestic federal HRA is that it not only sends a clear signal that these rights exist, it also brings those rights together in one readily accessible location.

9.48The committee notes that pursuant to the 2010 Framework less than $1million in grants were made available to non-government organisations to develop community education and engagement program, and $6.6 million was provided to the AHRC over four years to expand its community education role (but this was discontinued after four years). The committee does not consider this sufficient funding to deliver on the commitment to promoting awareness and understanding of human rights in the Australian community. A genuine commitment to respecting, protecting and promoting human rights in Australia requires a sustained commitment to significant and ongoing funding for such education.

9.49The committee also notes with disappointment that the significant work undertaken by the National Human Rights Consultation in 2009 appears largely lost to the public. During that consultation tens of thousands of submissions were received, research and legal advice commissioned, and a 500page report released – none of which are now available on any government hosted website. The committee considers this important work should form part of the educational resources available to the community.

9.50The committee recommends that the government commit to:

significant and ongoing funding of human rights education for the community, including in primary and secondary schools; and

appropriately funding the Australian Human Rights Commission and representative non-government organisations to develop educational programs and resources.

9.51The committee recommends that the Attorney-General’s Department republish on its website the 2009 National Human Rights Consultation report, associated submissions and commissioned research to operate as an educational resource, reflecting the large body of work done in reviewing the state of human rights in Australia.

Cultural change

9.52Our late committee member, Ms Peta Murphy MP, put the proposition during the hearings for this inquiry that the benefit of a HRA ‘is not necessarily the litigation that one might be able to commence based on it, but the benefit of driving a human rights culture within the Public Service’.[4] The 2010 Framework had the laudable aim of fostering human rights awareness in the Commonwealth public service and bringing human rights to the forefront in the development of policies and legislation. However, without a culture of human rights or a statutory obligation on public officials to comply with human rights, the evidence to this committee is that there is a patchy understanding of human rights within government and the internal processes for developing policies and legislation see human rights considerations tacked on at the end – justifying how legislation is compatible with rights, rather than genuinely considering how rights can best be respected.

9.53The committee has observed over its 12‑year history that while there is some understanding within the public service of certain human rights, this varies greatly across departments and agencies, including portfolios whose legislation regularly engages human rights. In addition, submitters raised concerns that while this committee does an excellent job of advising the Parliament as to the compatibility of legislation with human rights, this often does not translate into legislative amendments. Indeed, the committee’s observation is that, with some few exceptions, once legislation is before the Parliament, the responsible department or agency seems largely intent on justifying to their minister why the legislation was developed as it was, and any amendments suggested by the committee to improve human rights, no matter how minor or seemingly uncontroversial, are vigorously opposed. It is clear that there needs to be a seismic cultural shift within the public service to mainstream human rights and ensure they are considered at the very earliest stages of policy and legislative development. The committee considers this can only be achieved in reality with the introduction of binding obligations on public authorities under a HRA; comprehensive and sustained training programs and resources for the Commonwealth public sector; and a commitment by senior leaders within government and Parliament to respect, protect and promote human rights. The committee considers this will require significant and sustained funding across a number of bodies to embed this change and ensure these reforms can be made realisable in practice.

9.54The committee recommends that the government commit to significant and sustained funding to ensure greater respect for individual rights and freedoms, in particular by ensuring:

the Australian Human Rights Commission is effectively and sustainably funded to perform its community educative role, help lead cultural change within public authorities to better respect human rights, and conciliate human rights complaints;

departments and agencies are appropriately resourced to develop internal human rights understanding and the Human Rights Office within the Attorney-General’s Department is adequately resourced to establish a centre of expertise to provide whole-of-government human rights advice;

sufficient resources and expertise are provided to support the work of the Parliamentary Joint Committee on Human Rights; and

non-government organisations, including those providing legal services, are sufficiently funded to allow them to advance human rights protection.

Training

9.55If public officials do not fully understand their obligations to respect and protect human rights, it is unlikely, as recently highlighted by the Robodebt Royal Commission, they will always do so. A HRA would make it an obligation on public authorities to act compatibly with human rights and give proper consideration to rights when making decisions. This duty would apply to anyone performing public functions, including public servants, the Australian Federal Police, regulatory bodies, and bodies acting on behalf of government, such as those providing federal disability or aged care services. If they are to be bound by these obligations, the committee considers it essential that appropriate training be made available to allow them to understand their specific obligations. Human rights considerations can 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 on human rights while still achieving policy objectives.

9.56The committee considers there to be a particular need for all Australian Public Service (APS) employees to have an understanding of their human rights obligations, and considers it should be mandatory for all APS employees to have at least basic human rights training. However, the committee considers the provision of basic training is unlikely to be sufficient for public sector staff that are: providing services to the community (including the Australian Federal Police); developing policies in areas likely to engage human rights (for example, social security or data collection); and developing legislation. In such cases the committee considers that tailored training and resources should be developed to assist public sector staff to understand when rights are likely to be engaged and if rights can be permissibly limited. The committee also considers it is imperative that such training is not simply provided on a one-off basis (such as occurred under the 2010 Framework) but is ongoing and regularly reviewed. The committee also considers there is value in amending the APS Code of Conduct to more specifically state that APS employees should make decisions and provide advice consistent with human rights.

9.57The committee considers that human rights training should be made available to parliamentarians (and their staff), noting the role they play as legislators. This should also apply to ministers who, under a HRA would be subject to a duty to consider and act compatibly with rights, noting that culture is set from the top down.

9.58Finally, noting it is proposed that some private entities will have duties under a HRA to respect and protect human rights (when exercising functions of a public nature), the government should develop specific guidance to such entities to help them understand their human rights obligations. For example, aged care and National Disability Insurance Scheme providers may have such obligations and it would be important to ensure that all staff involved in the provision of such services fully understand the importance of protecting human rights – something recent royal commissions have demonstrated have all too often been sadly lacking.

9.59The committee recommends that the government (in consultation with the Australian Human Rights Commission) provide ongoing training and resources for public authorities, including;

making basic human rights training mandatory for all Australian Public Service employees (including the Senior Executive Service);

providing specific and tailored ongoing human rights training and guidance material to all public sector staff involved in:

-delivering services to the community;

-developing policy in areas that engage human rights; and

-developing legislation;

making human rights training available to all parliamentarians, including ministers, and their staff; and

providing tailored human rights guidance material to those private entities that perform functions of a public nature (for example, aged care and National Disability Insurance Scheme providers).

9.60The committee recommends the government update the Australian Public Service (APS) Code of Conduct and Values to require APS employees to respect and promote human rights by making decisions and providing advice consistent with human rights, and implementing, promoting and supporting human rights.

Senior leadership

9.61The committee believes that enforceable obligations on public authorities under a HRA is only the first step in developing a culture of respect for human rights in Australia, across all layers of government, non-government and the private sector. Culture is set from the top down. Development of a culture that respects human rights within government will only be truly effective if senior leaders make clear the standards to be expected.

9.62Within the public service, it is essential that human rights considerations are embedded in the early stages of decision‑making and the development of policies and legislation. Ministers, Assistant Ministers and heads of departments and agencies should set the expectations as senior leaders. The committee considers there would be value in having a regular forum for the senior leaders of all government departments and agencies to meet to discuss the implementation of a HRA and the training needs within the public service. The committee considers, just as happened in Victoria when their Charter of Human Rights and Responsibilities Act 2006 was first introduced, that senior leaders within each department should be designated as Human Rights Act champions, who can be a focal point for advocating the importance of respecting, protecting and promoting human rights. The committee also considers such a forum should receive coordinated updates of any concerns raised by this committee and by relevant UN treaty bodies about Australia. By having such a forum, the aim is for a coordinated approach to be taken to embed a human rights respecting culture within the APS.

9.63The committee recommends that the Secretaries Board establish a standing senior leadership group or sub-committee comprising senior leaders of all departments and a representative of the Australian Human Rights Commission to regularly:

consider the human rights training needs of public servants;

consider reports of the Parliamentary Joint Committee on Human Rights and responses to those reports;

establish senior leaders as Human Rights Act champions;

discuss emerging human rights issues and get updates on any complaints or cases taken under a Human Rights Act; and

get updates on comments or decisions involving Australia by United Nations human rights treaty bodies and on Australia’s Universal Periodic Review process.

Consideration of human rights in development of legislation and policies

9.64The importance of leadership and human rights education for public sector staff cannot be understated. However, the 2010 Framework is a salutary lesson in why cultural change must be embedded in laws and processes. If human rights considerations are not part of the process within government before legislation is finalised, any subsequent amendments to minimise the risk of breaching rights are all too often resisted.

9.65The committee considers there is a need for human rights advice when important policies and legislation are developed that focuses on improving rights protection. The committee is concerned that if human rights advice comes only from within government at a later stage, such advice may tend towards being defensive, justifying why government policy does not breach rights, rather than focused on how risks of human rights breaches may be avoided. In the committee’s experience, all too often the breaches of rights that occur in legislation could often be remedied by relatively minor amendments to build additional safeguards into the legislation, while still achieving the policy intent. The committee wishes to see a change in the mindset within government departments and agencies to this effect.

9.66The committee considers that reform can best be achieved by ensuring there is strong, honest advice from various quarters. The ‘Swiss cheese model’, used in risk management systems like airline safety and healthcare, recognises the need for multiple systems to ensure lapses and weaknesses in one area do not allow a risk to materialise. In this model, each slice of cheese represents a safety barrier or precaution, and while they are not all perfect (e.g. they have ‘holes’), when layered up together the other defences (e.g. other slices of cheese) will prevent a single point of failure (e.g. the holes in each slice will not align). In this respect, the committee considers that there is a need for human rights advice from multiple sources, so that even if one source fails to adequately consider rights, there are other there to do so.

9.67On this basis the committee considers that human rights expertise should be developed within departments through training and the establishment of departmental human rights units. Further, the committee considers that there would be significant benefit in establishing a Human Rights Office within AGD to provide advice on legislation and policies at the early stage of development. This should be well resourced and contain significant human rights law expertise. The committee agrees with submitters that there is a tension in saying that everyone needs to understand human rights law, however, it is a specialised area of law and, as such, the committee believes there should be expertise within a centralised space in AGD, while over time human rights expertise can be developed within each department.

9.68The committee considers it likely that laws that breach human rights are generally developed without the participation of the groups most impacted by those laws or policies. The committee considers the participation duty in the HRA, as outlined above, would help to remedy this, but considers processes must also change to require such consultation where appropriate and if it does not occur, for departments to explain why (see below regarding statements of compatibility).

9.69The committee also considers changes to expand the role of the AHRC in reviewing and auditing the practices of departments and agencies to monitor compliance with human rights obligations are an important aspect of achieving cultural change (see further below).

9.70The committee considers changes to internal government documents could help to ensure greater consultation has occurred on the human rights implications of new policy proposals and draft legislation, including requiring the advice of the Human Rights Office in AGD in relation to all proposed bills and major policies.

9.71The committee also sees the role of the Office of Parliamentary Counsel (OPC) as important in achieving greater human rights protection in legislation. While it is not the role of parliamentary drafters to develop the policy behind the legislation they draft, they serve an important role in reminding departments of their statutory obligations and can, and already do, act as a central point to direct departmental officers to the concerns of this committee and to the need to consult within government. As such the committee considers tailored human rights training should be made available to all parliamentary counsel, and there would be merit in OPC reviewing their current drafting practices in line with a reformed human rights framework.

9.72The committee recommends, in order to embed requirements for public servants to consider people’s rights and freedoms when developing government policy and legislation, that the government:

set up specialised human rights units in each government department to provide advice on the applicability of human rights within each portfolio;

establish a Human Rights Office in the Attorney-General’s Department (AGD) with staff with human rights law expertise;

update policy development guidelines to require policy makers to consider the potential impact of each decision on human rights and the need to consult with potentially affected groups, particularly those with relevant lived experience;

develop tailored human rights impact assessment tools or checklists to guide decision makers in determining whether human rights are engaged by the proposed policy or legislation;

amend budget documentation to include an assessment of the human rights compatibility of the budget measures in the statements of compatibility for the annual appropriations bills;

update the Legislation Handbook and the Legislative Instrument Handbook to alert public servants to the need to consider human rights when developing legislation, and the need to involve their human rights unit and the Human Rights Office early in the development of legislation;

require the Human Rights Office to provide advice on legislation and policies at the early stage of development, including;

-to be provided with drafting instructions and early drafts of all bills to provide advice to instructing officers and the Office of Parliamentary Counsel (OPC) on how the proposed legislation can better protect human rights;

-to review all statements of compatibility with human rights involving bills;

require OPC to review their drafting practices, drafting guidance materials and drafting directions in line with a reformed human rights framework.

Parliamentary scrutiny

9.73The 2010 Framework committed to the introduction of this committee as a way of ensuring greater scrutiny of legislation for compliance with our international human rights obligations. Our committee has now been in operation for 12years and has created a large body of largely non-partisan analysis as to the compatibility of federal legislation with human rights. Its influence on the development of legislation cannot be quantified – much of it is likely to be a ‘hidden influence’ on the development of legislation. However, as set out above, once legislation is before the Parliament its concerns have, with some notable exceptions, largely been ignored or justified. The committee hopes that changes to the culture of the public service and senior leadership may lead to a shift in how the committee’s comments are viewed – away from something to be justified and towards a genuine commitment to improving the rights compatibility of legislation. The committee considers the Human Rights Office in AGD should play a greater role in supporting and promoting the work of the committee within the public service, including liaising with departments as to how they can best respond to meet the committee’s concerns.

9.74Further, it is not only necessary to achieve a cultural shift within the executive, but also within the Parliament itself. Ideally parliamentarians would reference relevant committee reports when debating legislation, table amendments in response to specific committee recommendations, consistently act as parliamentarians, not politicians, when serving on the committee, and not pass legislation before the Parliament has had the benefit of the committee’s advice.

Passage of legislation

9.75The work of the committee in scrutinising legislation for compatibility with human rights is undermined when the legislation passes before the committee has completed its scrutiny. The committee works hard to ensure its scrutiny of legislation is available while the bills remain before the Parliament. On average the committee reports on more than 90 per cent of bills while they remain before the Parliament. However, many bills pass the House of Representatives (if not the Senate) before the committee has had time to report and sometimes rights-significant legislation passes before the committee has an opportunity to comment. When the committee was first established it was envisaged that the committee would ‘establish a dialogue between the parliament and its citizens whereby the members of the committee can canvass the views of the public, including affected groups, as to how they will be affected by proposed legislation’.[5] The committee has self-initiated inquiries into legislation on six occasions in its history, four times in relation to bills that passed before the committee’s report and twice in relation to legislative instruments. But as the committee’s scrutiny does not halt the passage of legislation (unlike referrals to standing and select committees) its ability to seek engagement from the community as envisaged is limited.

9.76A number of submitters, including the AHRC, argued that, except in limited exceptions, bills should be prevented from passing until the committee has tabled its final report on the bill. The committee considers that Parliament would ideally have the benefit of its advice before a bill proceeds beyond its second reading. However, the committee considers a more nuanced approach would be for the committee to indicate which bills it considers requires its detailed consideration. On average the committee makes no comment on around three-quarters of all bills. The committee considers it would be unnecessary and counter-productive to seek to slow the passage of bills raising no human rights concerns. The committee also sees the value in the Parliament having certainty over when the committee seeks to report in relation to those bills it considers requires its detailed consideration, and allow Parliament the option to require the committee’s consideration at an earlier date if the bill requires a speedier enactment.

9.77The committee therefore proposes it could change its work practices to, as soon as bills are introduced, undertake a swift review to determine which bills require its detailed consideration. For those bills that the committee considers require its detailed consideration ­– including needing a dialogue with the minister or potentially hearing from community members and experts ­– the committee could issue an interim report listing those bills and the date the committee intends to report. The committee could still comment on any bills that are not included in this process but, as is the case presently, it would not delay the passage of that legislation. A committee member would then be able, without the need to seek leave, to move such a motion in either house, and the chamber would need to agree to the motion (including which bills are included and the proposed date for reporting). This would ensure that the Parliament retains oversight of its legislative program, as informed by the committee.

9.78This mechanism would not prevent the passage of legislation that the committee has not had any opportunity to review (such as legislation that passes within a few sitting days of its introduction) and of course nothing would prevent either House of Parliament from suspending its own standing orders if required. This mechanism would allow either House to refuse to allow the committee any time to undertake its detailed consideration of the bill (or a shorter timeframe than that proposed in the motion). There will be bills, such as those relating to national security or the protection of the Australian community, where the Parliament, informed by the government, will appropriately prioritise the bill’s passage over the committee’s consideration. This proposed mechanism creates the necessary flexibility to ensure that, where either the House or Senate considers it appropriate, the passage of such bills is not constrained by the committee’s processes.

9.79The committee appreciates that such an approach will not satisfy all submitters given some legislation will still pass without the benefit of the committee’s human rights analysis. However, the committee considers this to be a workable compromise between ensuring timely passage of legislation and enhancing parliamentary scrutiny of laws for consistency with human rights.

9.80The committee recommends that the House of Representatives and Senate amend their standing orders to provide that:

a member of the Parliamentary Joint Committee on Human Rights may move a motion for the adoption of an interim report setting out the bills the committee considers requires its detailed consideration and the day fixed for the committee to report on each bill;

any member of the House or Senate may seek to amend such a motion, including the date by which the committee must report on a bill; and

where the motion is agreed, those bills stated as requiring the committee’s detailed consideration may not proceed after the second reading until the day after the committee reports (with no restriction on the passage of bills that the committee indicates it does not seek to consider in detail).

Functions of the committee

9.81The committee currently has the function of examining bills, legislative instruments and Acts for compatibility with human rights and inquiring into any matter relating to human rights – but only where such an inquiry is referred to the committee by the Attorney-General. This is in contrast to the United Kingdom Joint Committee on Human Rights that has the power to self-initiate thematic inquiries in relation to a range of human rights matters. This power has enabled that committee to examine pressing human rights issues even when they are not contained within legislation, allowing them to act proactively to examine matters of concern affecting the community. The committee considers that the ability to self-initiate inquiries into any matter relating to human rights (other than individual cases) would help the committee hear from the community about the human rights affecting them, assist in the committee’s educative role and allow the committee to contribute to wider human rights discussions. Of course, doing such inquiries regularly, alongside swiftly reviewing proposed legislation for human rights compatibility, would have resource implications and the committee considers its secretariat should be appropriately resourced to carry out any such functions.

9.82The committee also considers that if a federal HRA is introduced this should alter what standard the committee scrutinises legislation by. At present the committee considers if legislation is compatible with international human rights law – namely, the seven core human rights treaties Australia is a signatory to. The committee considers that if there were to be a domestic HRA it should scrutinise legislation for compatibility with the HRA. The committee’s reports would act as a useful resource for public servants when developing future legislation. However, the committee would not wish to see its remit narrowed – so if a HRA was introduced that did not include all civil and political and economic, social and cultural rights the committee considers its remit should remain.

9.83Further, should a HRA in line with the model proposed in recommendation 2 not be agreed to, the committee considers there would be value in adding the United Nations Declaration on the Rights of Indigenous Persons (UNDRIP) to the list of international instruments that the committee relies on in interpreting human rights law. UNDRIP is currently considers tangentially by the committee when interpreting rights such as the right to culture and self-determination, but this is not required by the Human Rights (Parliamentary Scrutiny) Act 2011. Specifically listing it so that the definition of ‘human rights’ includes consideration of the standards in UNDRIP – thereby requiring this committee and those preparing statements of compatibility to consider it – would be a minimal, but essential change, consistent with recent recommendations of the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs.[6] The committee also considers the Refugee Convention to be a core international human rights treaty and considers it should also be added to the definition of ‘human rights’ should a HRA not be introduced.

9.84The committee also notes the importance of monitoring Australia’s compliance with its international human rights obligations, as discussed further below (and in chapter 8). The committee considers one aspect of this would be for it to review any adverse comments made against Australia by UN bodies and the Australian government’s response to them. In doing so, the committee should be able to choose to seek evidence from the community about the adequacy of the response and thereby bring consideration of issues raised against Australia at the international level into the domestic sphere and hear from those in Australia who may be affected.

9.85The committee recommends that the government introduce amendments to the Human Rights (Parliamentary Scrutiny) Act 2011 to:

expand the functions of the committee to allow the committee to inquire into any matter relating to human rights (other than individual cases) on its own initiative (without requiring the Attorney-General’s referral);

if a Human Rights Act is introduced in accordance with recommendation2, amend the definition of ‘human rights’ to refer to the rights and freedoms recognised in that Act;

if a Human Rights Act is not introduced in accordance with recommendation 2, amend the definition of ‘human rights’ to include the United Nations Declaration on the Rights of Indigenous Peoples and the Refugees Convention; and

empower the committee to review the results of individual communications against Australia from United Nations bodies, and Concluding Observations from the United Nations about Australia, from time to time and report on the adequacy of the Australian Government’s response to these.

Statements of compatibility

9.86Currently statements of compatibility must be provided in respect of all bills and legislative instruments that are subject to disallowance by the Parliament. However, the committee is required to review all bills and legislative instruments – including those legislative instruments that are exempt from disallowance. Around 20percent of legislative instruments are exempt from disallowance, meaning the committee is required to assess the compatibility of hundreds of instruments per year that do not contain a statement of compatibility. There appears to be no reason why legislative instruments exempt from disallowance are not required to include a statement of compatibility. The committee observes that non-disallowable legislative instruments included most of the measures taken by the federal government during the COVID-19 pandemic and a significant number of migration related instruments. The committee considers there is no reason why responsible departments and ministers should not be required to turn their mind as to the compatibility of such instruments, and thereby assist the committee in its scrutiny of them.

9.87The committee notes that the quality of statements of compatibility is variable. The committee hopes that if the measures recommended above regarding building human rights considerations into the very beginning of policy and legislative development are adopted, the quality of statements of compatibility will improve. The committee considers there is value in setting out in legislation what is required to be included in statements of compatibility. This would require an amendment so that not only should a statement of compatibility include an assessment of whether the legislation is compatible with human rights, it should also include an assessment of how it is so compatible and if it is not compatible, the nature and extent of the incompatibility. The committee notes that over its 12‑year history it has not observed any statement of compatibility that has admitted the legislation is incompatible with rights – despite clear examples where it is. While the hope would be that legislation would not be incompatible with our human rights obligations, sometimes governments take a policy decision to act in a way that is incompatible. If the government does so, the statement of compatibility should explain this, rather than seeking to justify a measure that is clearly not compatible, and it is up to Parliament to decide if the reasons proffered are sufficiently compelling to justify acting in opposition to those obligations.

9.88The committee also considers there would be significant value in requiring statements of compatibility to contain a description of the nature of any consultation undertaken on the bill. The committee notes that the explanatory statements accompanying legislative instruments must already set out if consultation was undertaken (and the nature of that consultation), and if not, explain why.[7] The committee considers where legislation affects human rights, where reasonably possible, groups affected by the measure should be consulted before legislation is introduced into Parliament. The committee notes that the HRA model recommended above includes a participation duty on public authorities to consult with Aboriginal and Torres Strait Islander people, people with disability and children before making decisions affecting them. The committee considers that statements of compatibility accompanying bills should explain what, if any consultation, occurred in relation to the proposed law, and if no consultation was undertaken, provide an explanation of why it was not.

9.89The committee recommends that the government introduce amendments to the Human Rights (Parliamentary Scrutiny) Act 2011 to:

require the rule-maker in relation to all legislative instruments (not only disallowable legislative instruments) to cause a statement of compatibility to be prepared in respect of that instrument;

require the statement of compatibility to explain how the bill or legislative instrument is compatible with human rights and if it is incompatible with rights, the nature and extent of the incompatibility; and

require a statement of compatibility to contain a description of the nature of any consultation undertaken on the bill (including by reference to the participation duty under the proposed Human Rights Act) and if no consultation took place, explain why.

Role of the Australian Human Rights Commission

9.90The committee considers the AHRC plays an integral role in ensuring Australia respects, protects and promotes human rights. The committee considers its role would increase if a HRA is introduced, particularly in conciliating complaints under a HRA and providing resources and education to the community and public sector.

9.91The committee considers the AHRC should also play a strong role in helping to achieve systemic cultural change to achieve human rights. The committee is concerned that the HRA model leans towards individual remedies – requiring a person affected by a breach of human rights to bring a claim against a public authority. The committee considers that the AHRC can play an important role in seeking to address systemic issues. In exercising its functions of conciliating complaints under a HRA, the committee considers the AHRC well placed to identify systemic human rights concerns (e.g. when it receives complaints from multiple people regarding the same department or similar practices by different departments). However, this would still rely on individuals to take complaints to the AHRC, when in many cases those affected may be particularly vulnerable and not able to take on such a role. The committee agrees with the AHRC that it should be given the power to conduct own motion inquires in relation to breaches of human rights that are of a systemic nature, such as considering the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody. In addition, the AHRC should have the power to inquire into, and investigate, the policies and practices of a public authority to assess their compatibility with human rights. In addition, the committee considers that this should also extend to reviewing specific acts by a public authority that may be inconsistent with a HRA – thereby enabling the AHRC to undertake an instigation when alerted to specific concerns. The relevant public authorities should be provided with an opportunity to respond to the AHRC’s findings and, ideally, amend their policies and practices to ensure future compliance with a HRA. The committee considers that the AHRC should report on the results of such investigations (excluding any personal information), noting that those being investigated would be public authorities (such as government departments, regulatory bodies etc) and transparency is important to help drive a culture of respect for human rights. The committee notes similar such powers will be soon granted to the ARHC to monitor and assess compliance by employers regarding sexual harassment[8] and the Fair Work Ombudsman has powers to investigate and monitor breaches of the Fair Work Act 2009. The committee considers rather than create a separate Human Rights Ombudsman or significantly expand the role of the Commonwealth Ombudsman, such powers should sit with our national human rights institution.

9.92The committee also considers, consistent with the AHRC’s current function in relation to discrimination cases, the AHRC should be empowered to intervene, with the courts leave, in court proceedings involving the HRA. In addition, the committee considers there would be value in empowering the AHRC, where it has identified systemic human rights concerns that have not been able to be resolved through other means, to commence proceedings to enforce compliance with the HRA.

9.93The committee notes that the ability of the AHRC to adequately undertake all of these additional functions, including indeed, its current functions, relies heavily on the quality and expertise of its commissioners and staff. The committee is concerned by the evidence to this committee that, due to funding shortfalls, the AHRC has been unable to adequately perform its existing conciliation functions, such that a number of submitters raised concerns about adding conciliation under a HRA to the AHRC’s role. The AHRC gave evidence last year that it did not have the resources to do all that they are currently meant to be doing and it would require a significant increase in resources to undertake additional functions. The committee agrees that the AHRC must be sustainably and appropriately resourced to carry out its existing and proposed functions to significantly improve human rights protection across Australia (see recommendation 6 regarding funding).

9.94The committee recommends the government consider expanding the role of the Australian Human Rights Commission to enable, or better enable, the Commission to:

conduct own-motion inquiries into systemic human rights concerns;

monitor, and report on, compliance by public authorities with a Human Rights Act (HRA);

inquire into, investigate, and report on, any act or practice of a public authority that may be contrary to a HRA;

intervene, with the court’s leave, in court proceedings involving the interpretation or application of a HRA; and

where the AHRC has identified systemic human rights concerns, commence proceedings to enforce compliance with a HRA if other methods have failed.

Review of legislation

9.95The model for a HRA proposed by the committee and the AHRC maintains parliamentary sovereignty over the laws that govern us. It is essential, in Australia’s system of representative democracy, that Parliament retains the power to legislate within its existing boundaries. In exceptional circumstances, this may include legislating in a way that is incompatible with human rights. It is then a matter for the voters at the ballot box to determine if acting in such a way accords with their view of good governance. However, the committee has observed that all too often legislation risks being incompatible with rights because of a lack of safeguards or controls in place to ensure it is a proportionate limit on rights. The committee’s hope is that a HRA and changes to the culture within the public service will lead to legislation being developed that has human rights considerations at the forefront so as to prevent those inadvertent breaches of rights. However, this will only assist in the development of future legislation. There is a vast amount of existing legislation that has not had the benefit of a systematic human rights risk assessment.

9.96Under the proposed HRA a public authority is not bound by human rights if it could not reasonably have acted differently because of an incompatible law. As such, the committee considers it imperative that existing legislation be reviewed for its compatibility with human rights. The committee considers it important that any such review should be approached in good faith – with a focus on adopting a best practice approach to minimising the risk of a breach of human rights in practice, rather than taking a defensive approach of justifying how the legislation might arguably be found to be compatible. The committee considers that the Human Rights Office in AGD is best placed to coordinate such reviews, with the relevant portfolio department or agency (informed by their internal human rights unit) to conduct each initial review. Once a review identifies any provisions of Acts that fall short of Australia’s human rights obligations, the committee considers that the government should introduce amending legislation to allow Parliament to make the final decision on amending the law.

9.97The committee appreciates the enormity of such a task and understands the likelihood of it taking many years to be complete. The committee considers that the government should consider the best approach to undertaking such a review, but notes that a convenient starting point may be to review the reports made by this committee regarding legislation made in the previous 12 years which raised human rights concerns and those Acts that require a foundational human rights assessment.

9.98The committee notes that the 2010 Framework committed to reviewing legislation in this manner, but such a review never occurred. The committee considers that review processes may become a more embedded requirement if the Legislation Handbook is amended to require that when substantive (but not consequential) amendments are being made to existing legislation, the legislation to be amended must be reviewed to determine its compliance with human rights. In addition, the committee considers that when legislative instruments are reviewed as part of managing the sunsetting process, guidance should specifically require that the instrument be reviewed for compatibility with human rights.

9.99The committee recommends that the government review all existing primary and delegated legislation for compatibility with human rights and bring forward any necessary amendments to legislation identified as raised human rights concerns, noting that such reviews:

could prioritise reviewing legislation that this committee has reported on as raising human rights concerns or that courts have found to be incompatible with a Human Rights Act;

should be embedded within government processes, so that when existing Acts are being substantively amended, or legislative instruments subject to sunsetting are being remade, a review of their compatibility with human rights must be undertaken (if not already reviewed); and

should be undertaken in good faith with a view to maximising the realisation of human rights in practice (rather than considering whether the legislation is arguably compatible with rights).

Monitoring progress on human rights

9.100The committee considers it important to consider ways in which to monitor Australia’s progress in protecting human rights over time. In particular, as part of embedding a culture of respect for human rights within government, the committee considers departments and agencies should be required to develop their own human rights action plan to consider any specific changes that may need to be made within their portfolio to ensure greater protection of human rights. For some departments, human rights considerations may not seem relevant, for example, policies within the Treasury may at first glance not seem to engage human rights. However, policies that affect work, housing and the cost of living necessarily engage rights, and measuring progress on respecting relevant human rights is an important aspect of changing culture. The committee considers it therefore important that each department and agency report annually on compliance with these human rights plans.

9.101The committee also notes that a significant amount of work has been done by the AHRC, and internationally, in developing concrete and practical ways to track progress on the implementation on human rights. The committee considers the development of a human rights indicator index can be part of a human rights framework, and considers the government should seriously consider the AHRC’s proposals in this regard. The committee also considers the AHRC’s proposal for the Attorney-General to report annually to the Parliament on areas of progress in human rights and areas for focus will help to involve the Parliament in measuring progress.

9.102The committee also considers that submitters raised some important concerns about how Australia is currently engaging with our international obligations. It is of some concern that the UN treaty bodies can make recommendations regarding Australia, and decide cases involving complaints against Australia, and there is no centralised publicly available way to locate these or access the government’s response and no notification provided to Parliament. The committee considers Parliament should be alerted to how the government is responding to the UN as to how Australia is meeting its treaty obligations and any commitments made as part of the Universal Periodic Review. When decisions are made against Australia by UN treaty bodies this is relevant to the interpretation and implementation of our international human rights obligations, and the committee therefore considers that this committee could play a useful role in reviewing any adverse comments made against Australia and the Australian Government’s response to them (see recommendation 12). The committee also considers that civil society plays an important role in helping to protect and promote human rights and inform the Australian government, and the UN treaty bodies, of the experiences of those whose human rights we need to protect. The committee considers that the government should take all reasonable steps to consult with civil society as part of the development of policies and legislation and Australia’s engagement with international bodies.

9.103Finally, in assessing Australia’s international human rights obligations it is important to consider whether Australia’s existing reservations and interpretive declarations to the UN treaties remain appropriate. These are statements made by the Australian Government, often decades ago, that it does not intend to be bound by certain aspects of the human rights treaties (or interprets them differently). This includes, for example, that substituted decision-making and compulsory medical treatment can continue in limited circumstances, contrary to the Convention on the Rights of Persons with Disability. The committee considers that the government should take a formalised approach to reviewing all such reservations and declarations to assess if they remain appropriate, and if not, to withdraw them.

9.104The committee recommends that the government commits to monitoring and improving Australia’s progress on human rights, particularly by reference to the Australian Human Rights Commission’s Free & Equal final report, including:

developing a national human rights indicator index to measure progress on human rights over time;

requiring each department and agency to develop human rights action plans detailing how they will respect rights within their portfolio, and make annual reports on compliance with their plan;

requiring the Attorney-General to make an annual statement to Parliament identifying areas of progress on human rights and areas of continued focus;

establishing a publicly available database setting out all findings and recommendations of United Nations human rights treaty bodies about Australia, and individual communications involving Australia, and any Australian government responses;

ensuring regular forums for dialogue with the non-governmental (NGO) sector on human rights and supporting the independent participation of NGOs in the UN human rights processes; and

reviewing, with a view to withdrawing, all existing reservations and interpretive declarations under UN human rights treaties.

Footnotes

[1]National Human Rights Consultation, Report, September 2009, p. v.

[2]See National Human Rights Consultation, Report, September 2009, p. 6.

[3]See Amnesty International Australia, Submission 213, p. 5, referencing Amnesty International Human Rights Barometer 2022.

[4]Ms Peta Murphy MP, Committee Hansard, 27 September 2023, p. 28.

[5]The Hon Robert McClelland, second reading speech, House of Representatives Hansard,30September2010, p. 271.

[6]See Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs, Inquiry into the application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, November 2023, recommendation 6.

[7]Legislation Act 2003, paragraphs 15J(2)(d) and (e) and section 17.

[8]See amendments made by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, Schedule 2, Part 2, Division 2, which commence in December 2024.