Coalition Members Dissenting Report
“If society is tolerant and rational, it does not need a bill of rights. If it is not, no bill of rights will preserve it.”
Sir Harry Gibbs AC GCMG KBE PC QC
8th Chief Justice of the High Court of Australia
1.1The Parliamentary Joint Committee on Human Rights’ Inquiry into Australia’s Human Rights framework was dominated by evidence relating to the Australian Human Rights Commission’s proposed federal Human Rights Act. As the most consequential element of the inquiry, this dissenting report largely focuses on this proposal.
1.2Coalition members do not support the enactment of a Federal Human Rights Act, as proposed by the Australian Human Rights Commission (AHRC). Proponents of this proposal have failed to demonstrate that our current systems are not providing adequate protection of human rights or that their reform model would achieve preferrable outcomes where current protection is lacking.
1.3Australia has an enviable human rights record and historically played a pivotal role in the development of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The AHRC’s proposal is a dangerous departure from these international human rights agreements that Australia is treaty-bound to adhere to.
1.4The AHRC’s proposal is a bizarre reimagining of human rights with key rights deleted or distorted, absolute rights not recognised as such, and a deliberate devaluation of internationally recognised protections for the freedoms of thought, conscience, religion and belief. No justification can be found for extinguishing or reducing fundamental ICCPR rights in the way the proposed Human Right Act does.
1.5The AHRC model applies abstract and vague concepts to define rights. This would require novel judicial interpretation, since the terminology has no counterpart in the ICCPR, which the AHRC model purports to follow. This is compounded by a “limitations clause” allowing rights to be restricted on terms not allowed by the ICCPR, giving further unnecessary, and therefore excessive, discretion to the judiciary when interpreting that clause across most rights.
1.6Coalition members consider that a Human Rights Act of this nature would weaken our parliamentary democracy and politicise our judiciary.
1.7Australian democracy is robust, open and vigorous. Parliament remains the best institution to defend human rights and to debate and determine the balance of competing rights through legislation. The Coalition’s opposition to the proposed Act is twofold: to avoid Parliament disrupting the balance of competing rights with an Act which composes rights in a politicised way; and to avoid Parliament surrendering its responsibility to defend human rights, by throwing open the interpretation of an Act which contains excessive uncertainty to final determination by an unelected and unaccountable judiciary.
1.8The example Bill appended to the inquiry report has not been subject to public consultation or expert review. Coalition members consider this legislative model a concerning departure from international human rights.
1.9Coalition members agree with former Labor Attorney-General Robert McClelland, who in 2010 wrote in the foreword of ‘Australia’s Human Rights Framework’: “the enhancement of human rights should be done in a way that as far as possible unites, rather than divides, our community. Advancing the cause of human rights in Australia would not be served by an approach that is divisive or creates an atmosphere of uncertainty or suspicion in the community.”
1.10A Human Rights Act would be unnecessary, divisive and dangerous and should not be adopted by the Government.
1.11Australia’s human rights record stands as a testament to our commitment to justice and equality. The World Justice Project’s Rule of Law Index 2023 revealed that Australia had an overall index rank of 13 out of 142 countries, ahead of France (21) and the United States (26), countries that have a constitutional Bill of Rights.[1]
1.12Australia’s good standing was reaffirmed by Professor Nicholas Aroney, Professor Richard Ekins KC and Dr Benjamin Saunders who in their submission wrote “by international standards, Australia is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law. This is despite the fact that Australia does not have a constitutional bill of rights or a national charter of rights.”[2]
1.13Coalition members contend that Australia’s enviable human rights tradition is secured within the very fabric of Australian society, rather than through legislation or constitutional provisions.
1.14With the advent of the United Nations, Australia’s human rights tradition was exported at a global level. Australians William Roy Hodgson and Dr HV Evatt played vital roles in the formation and enactment of the Universal Declaration of Human Rights.
1.15A Human Right Act, or Bill or Rights, has been seriously proposed at least ten times before in Australia’s history. The concept was considered and rejected by the framers of our Constitution and has been rejected by every Commonwealth Government it has come before since 1901.
1.16The Committee heard that a Human Rights Act “is the central missing piece of government accountability in Australia.”[3] However, evidence was presented during the inquiry that was not in agreement with this assessment. According to the Rule of Law Institute of Australia, “the mere existence of rights or a constitutionalised bill of rights does not result in greater protection of fundamental rights.”[4]
1.17A Human Rights Act, or Bill of Rights, is clearly not a guarantee of achieving protection of human rights. The United States’ Bill of Rights (1791) did not prevent the practice of slavery. The French Declaration of the Rights of Man (1789) did not prevent the bloodshed and summary justice of the Reign of Terror. The impressive rights espoused in the Constitution of the Soviet Union (1936) did not prevent the Great Purge or the gulags. Individual freedoms are protected extensively within the Constitution of the Democratic People's Republic of Korea (1972), yet the nation has no contemporary parallel with respect to the extent of human rights abuses.
1.18Those proposing and supporting the adoption of a Human Rights Act in Australia have the burden of proving both that our current systems are not providing adequate protection of human rights and that their reform model would achieve preferrable outcomes.
1.19Coalition members of this committee maintain that neither of these aspects have been demonstrated by any of the submissions made during this inquiry. In fact, there is sufficient evidence to suggest it could have a negative impact on human rights.
1.20A Human Rights Act would fundamentally change the respective roles of the parliament and judiciary.
1.21Parliaments are elected to make laws. Members and Senators are elected to make the judgement calls on how competing rights are to be balanced and how they are to be best protected through legislation with certainty and predictability. A Human Rights Act, as proposed by the AHRC, appeals to the integrity of the ICCPR as the gold standard, but fundamentally departs from the rights balance set by the ICCPR, including by giving more scope for judicial interpretation and discretion than the ICCPR would allow. It effectively represents an abdication of this responsibility to the judiciary.
1.22The specific form of Act proposed aggravates the concerns expressed by Professors’ Aroney, Ekins and Dr Saunders in this inquiry, concerning charters generally, that they:
invite judges to evaluate legislation against standards that are so broad and vague that they amount to an open-ended assessment of whether the law ought to have been enacted. This entangles courts in what are essentially political controversies, undermining public confidence in their political impartiality and impairing their ability to uphold the rule of law.[5]
1.23They also comment:
The legislature that enacts a statutory charter of rights is not making a responsible choice about what the law should be – about what respect for human rights requires – but is instead leaving many of the critical questions about what the law should be to be decided, more or less freely, by judges in the course of future adjudication.[6]
1.24Australia’s democracy is incomparably robust. The Parliament is the best environment to defend and debate human rights. Coalition members contend that the adoption of the AHRC’s model would be a convenient way for politicians to avoid making difficult decisions. Yet Members and Senators have a duty to the Australian people to front up, discuss difficult issues and settle on decisions, rather than forgoing their responsibilities to unelected bodies.
1.25Through the Questions on Notice process, Coalition members sought clarification on how a Human Rights Act would affect the legislative's role and responsibility. Evidence was heard from Chris Merritt of the Rule of Law Institute of Australia on these impacts:
The commission’s model, if enacted, would require the judiciary to determine the extent of each of the rights listed in the proposed charter. That function, in essence, requires the application of value judgements in order to weigh conflicting goals. This is a political function that is at best discharged by parliament… Government’s, at the moment, are responsible for their actions to parliament and through parliament to the community. Under a charter, the judiciary would inevitably become a player in that process by influencing political decisions and limiting or extending rights in ways that are at odds with the views of parliament.[7]
1.26Coalition members consider that many of the submissions contained misunderstandings of how the parliament deals with Australia’s human rights obligations, and the work already undertaken by the Parliamentary Joint Committee on Human Rights. The Australian Government and Parliament are already obliged to consider human rights in their policy-making and decision-making.
1.27The Parliamentary Joint Committee on Human Rights (PJCHR) is the last remnant of the 2010 Human Rights Framework. It has produced a number of valuable reports, triggered debate within the parliament and government, and ensured accountability on Australia’s human rights performance.
1.28Coalition members reject recommendations made by multiple submitters that the Human Rights (Parliamentary Scrutiny) Act 2011 should be rolled into a new Human Rights Act. It is critical that the processes of parliamentary scrutiny remain legislatively separate to ensure that the Committee’s important function can remain independent. Moves to shift the responsibilities of the committee into new legislation could lead to less parliamentary scrutiny and an undermining of the mission of the PJCHR.
1.29While many submitters asserted that the courts are best placed to defend human rights through the adoption of the AHRC model, Coalition members note that the experience in the United Kingdom demonstrates that the parliament’s Human Rights committee can be a more effective defender of human rights than a judiciary acting under the framework of a Human Rights Act.[8]
1.30Coalition members of the Committee hold that it is against the public interest for the parliament to surrender their responsibility to defend human rights to the unelected judiciary. It is the legislature that is best placed to make the value judgements required when setting limits on rights and balancing competing rights. As Professors’ Aroney, Ekins and Dr Saunders point out:
Human rights are best protected by carefully drafted legislation which specifically addresses particular issues in a manner that ensures a reasonable level of certainty and predictability for all those affected by the law. The enactment of abstract ‘rights’ does the very opposite because it introduces vagueness and uncertainty into the law.[9]
1.31Coalition members note that the AHRC model would insert abstract and vague concepts into our law that require judicial interpretation. The consequence of this would be an increased politicisation of the judiciary that would be entirely undesirable.
1.32Coalition members share the views of Associate Adjunct Professor Mark Fowler who, while appearing at the Canberra public hearing, highlighted the potential impact the proposal could have on the judiciary:
The proposal undermines confidence in the judiciary, as it requires judges to interpret Australian law against principles that are abstract and imprecise, which then requires judges to determine the substantive content of the law in question and thus make law. Being abstract, human rights do not in themselves state what justice requires in any given situation.[10]
1.33In shifting this burden to the judiciary, the AHRC’s model would unfairly burden the courts with decisions that they are not best equipped to assess. Parliamentarians are more capable of weighing community expectations as opposed to judges, who are not free to contribute to the public debate and not equipped with the resources to gauge public opinion.
1.34Adopting the AHRC’s proposed Human Rights Act model would represent a surrender of Parliament’s responsibility to defend human rights to an unelected and unaccountable judiciary.It would entangle judges in controversies about contentious moral or political causes and would create American-style conflicts between the judiciary and the executive.
1.35Coalition members are of the view that the AHRC proposed legislation would invite activists, both from the right and the left of politics, to push for judicial interventions in support of contentious moral or political causes.
1.36Although not enshrined in the Constitution, a Human Rights Act - as proposed - would be constitutional in nature. All Commonwealth law would need to be read consistently with the charter and it would be extremely difficult for any future parliament to achieve amendments to the law.
1.37By establishing a quasi-constitutional Act of this nature, Coalition members are deeply concerned that this move would diminish parliamentary sovereignty.
1.38According to the Rule of Law Institute of Australia, “the commission’s model would enable the legislature to avoid taking responsibility for difficult public policy issues such as setting the limits on the manifestation of religious freedom.”[11]
1.39Coalition members consider that these value judgements are best made by democratically elected parliamentarians accountable to their constituents. The proposed Act is a convenient way for politicians to avoid making difficult decisions when it comes to the protection of human rights.
1.40Coalition members are also concerned that a bill and framework of this nature would damage Australia’s social fabric by encouraging a culture of complaint.
1.41Coalition members share the concern articulated in many of the submissions that the AHRC’s proposed Act is a dangerous departure from international human rights agreements that Australia is treaty-bound to adhere to.
1.42The list of rights selected within the proposal presents serious inconsistency with those protected, for example, under Article 18 and Article 7 of the ICCPR. In the view of Coalition members it devalues internationally recognised protections for the freedoms of thought, conscience, religion and belief, and other rights, for reasons given below.
1.43Coalition members are concerned with the AHRC’s invention of a new open-ended ‘single limitation clause’ on all those rights, particularly their conception as not being absolute.This view differed significantly from the finely calibrated approach of the ICCPR which outlines specifically, and precisely, the scope of each right and the extent to which it may be limited, preserving some rights from ever being restricted.
1.44Departures from the ICCPR of this nature and magnitude are bound to produce outcomes that violate international human rights law and may result in excessive restrictions on the freedoms of religion and expression.
1.45Article 18 of the ICCPR mandates protection for freedom of thought, conscience and religion. All Article 18 rights are non-derogable; that is, they cannot be suspended even in a state of emergency.
1.46Article 18 does not appear in the form, nor does it have the substance it should. In the AHRC’s proposed Human Rights Act, Article 18 is replaced by the AHRC’s own model. Coalition members consider this a significant departure from the robust religious freedom protections contained in Article 18, which is not capable of justification or derogation.
1.47Coalition members concur with the observation of Dr Paul Taylor that “the federal charter would promote some rights over others without any apparent justification.”[12]
1.48Preference has clearly been given by the AHRC to ‘non-discrimination’ protections over the individual freedoms of religion and belief, thought, and conscience, despite these freedoms being regarded by the ICCPR as absolute.
1.49Many stakeholders submitted to the inquiry their concerns that the AHRC did not have a sufficient emphasis on the ICCPR’s protections when it came to religious freedom.
1.50Coalition members note that the Australian Christan Lobby (ACL) submitted that the AHRC model is incompatible with Australia’s treaty obligations:
The AHRC model cannot be said to be compatible with Australia’s treaty obligations. Australia’s treaty obligations concerning freedom of religion and freedom of expression remain unfulfilled. The freedoms do not exist in Australian law so as to enable anyone to resist incursion, with a remedy, the ICCPR requires. The AHRC model does not cure this. Worse still, the ICCPR text for freedom of religion has been rewritten in departure of the clearly defined requirements of the ICCPR for that right.[13]
1.51According to the ACL, the:
AHRC model would make matters much worse for the protection of freedom of religion and freedom of expression. Of all the rights in the ICCPR to which Australia is bound to give effect in its domestic law in accordance with article 2 of the ICCPR, these two rights are the least protected in Australia to the ICCPR standard.[14]
1.52The ACL also state they are ‘alarmed’ at what is being proposed by the AHRC, saying in their submission to the inquiry:
The track record of the AHRC in supporting the ICCPR is disappointing. The ICCPR is not its highest priority. This proposal, and the AHRC’s historical engagement with human rights issues, demonstrates that this Human Rights Act is likely to produce a subjective, politicised “human rights” culture change which will be socially divisive, less inclusive and harmful, at a time when Australia most needs all rights to be promoted for all Australians according to clearly established treaty principles. The proposed Human Rights Act would give the AHRC official mandate to impose a profound legal and cultural change on Australians, in contravention of their ICCPR and other fundamental treaty rights.[15]
1.53In their submission to the inquiry, the Human Rights Law Alliance (HRLA) were critical of the AHRC’s lack of prioritisation for religious freedom. In a blunt assessment, the HRLA said the:
AHRC’s model should be scrapped altogether. It cannot be described as upholding human rights when it undermines so significant key rights which are intended for Australians under international law.[16]
1.54When asked by Coalition members whether the AHRC model was compatible with Australia’s treaty obligations, the HRLA said:
No, the AHRC model is not compatible with Australia's treaty obligations, particularly the ICCPR. It fails to enact in law the protection of religious freedom required to give effect to ICCPR rights, as required by the ICCPR itself. To the extent that it does articulate ICCPR rights it does so in a way that is imbalanced and that devalues the rights to freedom of religion compared to other rights.[17]
1.55Evidence on this was heard from the Human Rights Law Alliance (HRLA):
Senator O’Sullivan: Mr Simon, in relation to the Human Rights Commission, do you think that the ICCPR is a priority for the Human Rights Commission? What is your view of their track record in relation to religious freedom?
Mr Simon: We think that the ICCPR should be more of a priority for the Human Rights Commission and that they have had a tendency not to prioritise the rights in the ICCPR and to prioritise other approaches to human rights. So, we consider that to be a concern that we have with the Human Rights Commission, yes.
Senator O’Sullivan: And in relation to religious freedom and the track record?
Mr Simon: Religious freedom is the glaring omission in human rights law as legislated in Australia, and we think that should be remediated. As for the Human Rights Commission’s track record with that, there's been a tendency to elevate other laws above freedom of religion.[18]
Senator O’Sullivan: What impact do you believe a Human Rights Act could have on faith-based schools? And do you believe it would have any safeguards? Could you potentially put that in?
Mr Simon: We’re concerned about the impacts it could have, precisely because of this imbalance that I’ve mentioned - the elevation of some rights above others - and the failure to prioritise rights. The lack of protection that we have for freedom of religion in Australian legislation is a problem for Christian schools, and a Human Rights Act as proposed in this model doesn’t fix that at all and in fact tends to increase the imbalance.
Senator O’Sullivan: And what about safeguards? Could safeguards be put in your view? Or do you think it would make it unworkable?
Mr Simon: Our view is that safeguards should be put in prior to considering a Human Rights Act at all. We think safeguards should be put in -
Senator O’Sullivan: By way of religious -
Mr Simon: By way of Commonwealth legislation - the priorities should be positive protection of freedom religion. Also, the current Commonwealth non-discrimination legislation has no protection against discrimination on the basis of religion, which is another priority we have.[19]
1.56Specifically on priorities, it was the view of the HRLA that:
legislative protection for freedom of religion, and all forms of freedom of expression, should first be established in line with the ICCPR before introducing such a Human Rights Act. The highest priority, ahead of any further consideration of a Human Right Act, is a religious discrimination Bill of generous ambit, providing meaningful protection.[20]
1.57This is a view shared by Coalition members of the committee.
1.58Concerns with the Article 18 reinterpretation were also raised by the Rule of Law Institute of Australia, who noted in their submission:
The commission’s proposal amounts to a departure from the structure of the ICCPR. Unlike the ICCPR, the commission proposes to have a single “limitation clause”. This clause would be used by judges to determine what limits should be imposed on these rights when they come into conflict with other rights or initiatives.[21]
1.59Christian Schools Australia also noted their concerns with the proposed reimagining of Article 18:
This is a significant retrograde step for the protection of religious freedom. It replicates and reinforces one of the fundamental weaknesses of existing domestic bill of rights type legislation.
It is also unclear whether under the AHRC’s formulation of the right to ‘Recognition and equality before the law; and Freedom from discrimination’ if they intend that this whole right be treated as an absolute right, which cannot be subjected to any limitation, when they refer to the ‘Right to recognition before the law’ as an absolute right. Considered in the light of their redefinition of the scope of fundamental human rights, this would constitute a frightening reshaping of human rights protections with the potential to dramatically undermine religious freedom.[22]
1.60Coalition members do not support the AHRC’s proposal to redefine the absolute right ‘not to be coerced in a way that would impair a person’s freedom to choose their religion or belief’, by turning it into a right ‘not to be coerced in a way that would impair their freedom to have or adopt a religion or belief in worship, observance, practice or teaching.’ Such a right proposed by the AHRC does not exist anywhere in international law. This would be a significant retrograde step for the protection of religious freedom in Australia and would represent a further departure from Australia’s international obligations.
1.61Given that Australia’s protections for the freedom of thought, conscience and religion are already well regarded as insufficient in Australian law, the AHRC’s proposed approach would be a significant backwards step in protecting human rights within Australia.
1.62Coalition members note that some stakeholders submitted that the single limitations clause proposed by the AHRC model contravened the ICCPR. This was a view held by the Human Rights Law Alliance (HRLA) who said:
nothing in the “limitation clause” of the AHRC model requires restrictions to be justified on such grounds, as the ICCPR requires, let alone necessary on such grounds. Subjecting human rights to “reasonable limits” under the AHRC model allows excessive control of Australians in a way that is prohibited under the ICCPR… A broader “limitations clause” than is allowed under the ICCPR would provide the mandate for excessive restrictions to be placed on the freedom of religion and freedom of expression of Australians.[23]
1.63The Rule of Law Institute of Australia said it believed “the single limitation clause proposed by the Human Rights commission, and its use of proportionally test gave rise to two concerns.”[24] These concerns included value judgements that have been included in the AHRC model, and the challenge to the proportionality test “requires judges to explicitly make value judgements” that could pose a risk to the judiciary being impartial arbiters.[25]
1.64During the Canberra public hearing, Mr Chris Merritt, Rule of Law Institute of Australia, reiterated these concerns with the single limitations clause:
The entire structure of the Human Rights Commission's proposal is aimed at having a single limitation clause on all the rights that would be outlined in the charter. That’s a big departure from the approach taken by the international covenant, where the limitations for each right are included in the right. We have some rights that can’t be restricted at all, and there are some where the limitations differ significantly and are designed clearly to take account of the different nature of the right. The limitations on freedom of religion under the covenant, for example, differ quite significantly from the limitations on freedom of expression. I think it's just a little blunt to discard all that international jurisprudence, if you like, and invent a new system that is open-ended and that to my mind seems to be in conflict with the requirement that we not restrict these rights any further than the permissible restrictions outlined in the charter. So, it’s a broad concern; it’s not restricted to freedom of religion.[26]
1.65During Associate Professor Mark Fowler’s appearance at the Canberra public hearing, Coalition members asked him if the single limitations clause was compatible with common law:
the limitations clause bundles in the notion of proportionality. The charter proposal requires that all Commonwealth law be read consistently with the charter. If we have a reasonable limitations clause which imposes upon manifestation, when a school acts pursuant to current section 38 in the Sex Discrimination Act in appointing a teacher that shares its ethos and so on, is that exemption provision now to be read consistent with this new standard and hence the exemption provision itself goes from its standalone statutory proposition to something that must be reasonable and proportionate and therefore in a disjunct with the international human rights law? For example, if you take the UK and the Amicus matter, Justice Richards said that the exemption granted there to religious institutions satisfies the proportionality test on its own terms, by sheer dint of its terms. There is no further requirement to balance and consider proportionality. What he was saying was that this acquits the requirements of international law, without a broad reasonableness standard being applied to the exemption. It is not clear in my mind what the outcome is under this proposal.[27]
1.66The AHRC advocates for a singular limitations clause to encompass all rights, excluding those it deems absolute, which do not correspond with the ICCPR’s list of absolute rights. As previously outlined, the AHRC’s compilation of absolute rights is perplexing as it overlooks certain freedoms of religion or belief that are recognised as absolute under international law. The AHRC also elevates rights which are not absolute under the ICCPR, and even newly invented rights (related to Article 7) to absolute status.
1.67Coalition members cannot support a single limitations clause which would allow individuals within Australia’s jurisdiction to lose key aspects of their fundamental rights.
1.68Submissions were received by the Committee which noted that Article 7 of ICCPR had been significantly extended to an unacceptably low threshold, and given new meaning, in the AHRC charter.
1.69Article 7 of the ICCPR requires that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This right has been extended by the AHRC proposal to include that “[a] person must not be…treated…in a degrading way”. This could be used in a multiplicity of ways to undermine fundamental rights such as freedom of thought, conscience and religion, and freedom of expression.
1.70Given that Article 7 is an absolute right under the ICCPR, Coalition members are deeply concerned that broadening of the application of this right will lead to significant conflicts in the attestation of competing rights.
1.71Dr Paul Taylor’s submission notes that:
it is no stretch of the imagination to envisage such a right being asserted in contest with other rights, whether: in the name of child welfare when a public authority’s perceptions differ from those of parents; in opposition to the expression of religious or political beliefs which cause offence; or more broadly in a manner analogous to a vilification provision (like Anti-Discrimination Act 1998 (Tas) s. 17(1)); and possibly also to provide alternative claims against conduct that is characterised as discriminatory.[28]
1.72Coalition members are particularly alarmed that this reinterpretation of Article7 rights could be utilised as a Trojan horse for social agendas that cannot be progressed successfully through the political process.
1.73Furthermore, Coalition members do not share the confidence of the AHRC, and other Human Rights Act proponents, that the proposed reform model would establish a ‘dialogue’ between parliament and the judiciary.
1.74As Professor Nicholas Aroney, Professor Richard Ekins KC and Dr Benjamin Saunders submitted to the inquiry:
The ability and willingness of parties to engage in genuine deliberation over contested political matters is dependent on factors that have nothing to do with the existence of a charter of rights. The Human Rights Charters enacted in Victoria, Queensland and the Australian Capital Territory have not made genuine dialogue any more likely than it otherwise would have been.[29]
1.75Coalition members contend that ‘dialogue’ on human rights is best had between parliament and the Australian people, rather than with an unelected and unaccountable judiciary.
1.76Humans Rights Acts or Charters have been passed in three Australian jurisdictions; the ACT in 2004, Victoria in 2006 and Queensland in 2019.
1.77Case studies presented through submissions to the inquiry failed to provide any convincing examples of how these Acts had influenced any positive outcomes.
1.78Far from supporting the case for a Federal Human Rights Act, Coalition members are of the view that these Acts completely failed to protect abuses of human rights within these jurisdictions during the recent COVID-19 pandemic. This is particularly true of Victoria. These Human Rights Charters did little to protect citizens during the pandemic against draconian government overreach.
1.79During the Melbourne public hearing, evidence was heard from the Victorian Equal Opportunity and Human Rights Commissioner on how they had no opportunity to assess public health decisions prior to their enactment.
1.80Coalition members note that, when it was needed most, a Human Rights Charter was found wanting. It failed Victorians abysmally. Therefore, if a Charter could so easily be flouted and overridden during a pandemic by a state government invoking emergency powers, what assurances can be given for religious freedoms under a Human Rights Act during normal times? Either an individual’s human rights stand the test for all occasions, including during a crisis, or they are just given lip service when it’s convenient.
1.81In relation to the experiences during the pandemic, Coalition members note that it seemed to matter very little whether a jurisdiction had a Human Rights Act or Charter:
Senator O’Sullivan: … Even though Victoria has a Human Rights Charter and it wasn’t suspended, it was still circumvented during the pandemic. The one time that people actually needed to protect their rights, in my view, it failed.
…
Mr Fowler: In terms of COVID-19, if we compare the decision of the New South Wales Supreme Court in Kassam v Hazard with that of the Victorian Supreme Court in Loielo v Giles, we can see that, in the Victorian case where there was a Charter and in the New South Wales case where there wasn't, there was no material difference. In both cases the court said that this is a matter of policy; this is a concern for the parliament. From a separation of powers perspective, we might say that’s a good outcome. But it does raise the question as to whether or not there was any material difference.[30]
1.82The failings of the existing state and territory Human Rights Charters during the pandemic underscores the observations of professors’ Aroney, Ekins and DrSaunders that:
Australian cases evidence significant uniformity in approach and outcome, regardless of whether the relevant jurisdiction had a human rights act or not. The existence of a Human Rights Charter made little difference to either the reasoning or the outcome. In sum, a Human Rights Act did little or nothing to protect Victorian residents against some of the most severe infringement on human rights ever inflicted in Australia.[31]
1.83Coalition members consider that the AHRC’s proposed model would simply entrench the failures of these existing state and territory Human Rights Acts.
1.84In considering the international experience of the UK Human Rights Act, Coalition members hold significant concerns for how similar legislation in Australia would impact on the Government’s ability to respond to foreign individuals who commit crimes within Australia.
1.85The lived experience of the UK Act has seen numerous examples where the will of the UK Government and the British people have been thwarted by the Act. This includes lengthy and costly delays in the deportation of terrorists Abu Qatada and Abu Hamza. The UK Government was also unable to deport Aso Mohammed Ibrahim, an illegal Iraqi immigrant who struck and killed a 12-year-old girl while driving while disqualified, amongst other criminal offences.
1.86Other submissions to this committee highlighted the mixed and inconsistent experiences of human rights acts overseas. The Executive Council of Australian Jewry, for instance, made the point that Bills or Charters of Rights overseas have had mixed results at best:
The ECAJ is ambivalent about the desirability of Australia adopting a legislated Charter or Bill of Rights in the form of a Human Rights Act (HRA), along the lines proposed by the Australian Human Rights Commission (AHRC). In principle, we favour any measures which would enhance individual rights and freedoms. However, in some important cases which are detailed in this submission, experience with bills or charters of rights overseas has resulted in courts applying such instruments in a manner that, in our view, has wrongly prioritised certain rights and freedoms over others.[32]
1.87Coalition members of the committee have opposed the development of the example Bill appended to the committee’s inquiry report. This example Bill was not required under the inquiry’s terms of reference and has not benefited from direct public consultation or scrutiny from external experts.
1.88The extension of the inquiry’s reporting deadline enabled the opportunity for external consultation on this example Bill, however the majority of the Committee did not see fit to submit this Bill for community and stakeholder feedback.
1.89Coalition members are not satisfied that the example Bill represent a robust legislative model.
1.90The preamble of the example Bill contains highly contested statements. It declares that “human rights apply from the time a person is born.” This is not compatible with the UN Convention on the Rights of the Child and Declaration of the Rights of the Child which notes that “the child… needs special safeguards and care, including appropriate legal protection, before as well as after birth.”
1.91Contrary to the principle of human rights being universal, the example Bill’s preamble outlines that some human rights have “a particular significance for Indigenous peoples”, implying a lesser significance for other Australians. Coalition members reject this assertion entirely.
1.92The draft Example Bill is a concerning departure from internationally recognised human rights. Subclause 12(4) outlines the rights that can never be subject to limitation. This list excludes absolute rights protected under the ICCPR, including Article 6– the right to life (clause 16 of the example Bill), which is only protected within the example Bill if it constitutes genocide.
1.93Article 18 of the ICCPR – the freedom of thought, conscience and religion, is only protected in part in the example Bill. It excludes subclause 22(3) “A child’s parents have the freedom to ensure the religious and moral education of the child in conformity with the parents’ own convictions”. This is an absolute right under the ICCPR but is not listed as such in subclause 12(4).
1.94Clause 12(1) of the example Bill outlines that other rights may be subject under law to limits that are “reasonable.” Article 18(3) of the ICCPR sets a much higher threshold for the restriction of religious freedom. It provides that the only permissible restrictions on the freedom to manifest religion or belief are those that are “necessary” (not merely “reasonable”) to protect public safety, order, health, morals, or the fundamental rights and freedoms of others. This represents significantly less protection for religious freedom than Australia is treaty-bound to provide.
1.95The example Bill seeks to legislate the economic, social, and cultural rights (ESCR) such as the right to a healthy environment, to education, to health, to social security, and to work. These rights are unsuitable to be incorporated in legislation as they are formulated in such general and subjective terms. Coalition members consider that these rights do not lend themselves to justiciable processes, and should not be legislated in such an abstract way.
1.96Australia boasts an exemplary human rights record and has played a significant role in shaping global agreements such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).
1.97The proposed Human Rights Act deviates dangerously and unjustifiably from these international standards, selectively diluting protections for fundamental freedoms while introducing ambiguous and uncertain provisions allowing unsupportable scope for limiting rights.
1.98The proposal threatens to undermine the robustness of Australia’s parliamentary democracy by empowering the judiciary to be arbiters of contentious political issues, with excessive power to interpret such uncertain provisions. This would result in American-style conflict between branches of government.
1.99Coalition members note the views of Professors’ Aroney, Ekins and Dr Saunders who wrote:
a federal statutory charter of rights is unnecessary, pointless and dangerous. It is unnecessary because human rights can and should be protected by the Parliament.[33]
1.100Many stakeholders have demonstrated genuine and legitimate concerns with the AHRC proposal, including that the rights of faith-based schools and institutions could be eroded.
1.101Promoting and enhancing human rights in Australia requires an approach that fosters unity and trust within the community, rather than one that divides. Given the sufficient concerns raised through this inquiry, Coalition members contend that it would not be in the community interest for the Government to pursue this agenda.
1.102Coalition members note that many stakeholders who appeared at the Canberra public hearing expressed a view that the higher priorities than a Human Rights Act should be positive legislative protection for freedom of religion, and a Religious Discrimination Bill. Those two priorities are different, as noted by the ACL, because:
the focus of a proposed Religious Discrimination Bill is protection against discrimination, not positive protection for freedom of thought, conscience and religion. Discrimination legislation is needed but it is the wrong vehicle for protecting freedom of religion.[34]
1.103The Coalition members’ rejection of the AHRC’s proposal reflects a commitment to uphold Australia’s proud tradition of human rights while safeguarding the primacy of the parliament in protecting the rights of Australians.
Recommendation 1
1.104Coalition members recommend that the Government does not legislate to establish a Human Rights Act.
Mr Henry Pike MP
Senator Matt O’Sullivan
Senator Gerard Rennick
Member for Bowman
Senator for Western Australia
Senator for Queensland
Footnotes
[1]World Justice Project, WJP Rule of Law Index | Global Insights (worldjusticeproject.org).
[2]Professor Nicholas Aroney, Professor Richard Ekins KC (Hon) and Dr Benjamin Saunders, Submission 333, p. 3.
[3]Sarah Basford Canales, ‘Australian Human Rights Commission president Rosalind Croucher proposes Human Rights Act model’, TheCanberra Times, 10 March 2023, Australian Human Rights Commission president Rosalind Croucher proposes Human Rights Act model | The Canberra Times | Canberra, ACT (accessed 27 November 2023).
[4]Rule of Law Institute of Australia, answers to question on notice, 20 October 2023 (received 10 November 2023).
[5]Professor Nicholas Aroney, Professor Richard Ekins KC (Hon) and Dr Benjamin Saunders, Submission 333, p. 2.
[6]Professor Nicholas Aroney, Professor Richard Ekins KC (Hon) and Dr Benjamin Saunders, Submission 333, p. 6.
[7]Rule of Law Institute of Australia, answer to question on notice, 20 October 2023 (received 10 November 2023).
[8]Adam Tomkins, 'Parliament, Human Rights, and Counter-Terrorism' in Tom Campbell, K.D. Ewing and Adam Tomkins, The Legal Protection of Human Rights: Sceptical Essays, 1st edition, Oxford University Press, 2011, pp. 13–15.
[9]Professor Nicholas Aroney, Professor Richard Ekins KC (Hon) and Dr Benjamin Saunders, Submission 333, p.2.
[10]Associate Professor Mark Fowler, Committee Hansard, Friday 20 October 2023, p. 17.
[11]Rule of Law Institute of Australia, Submission 327, p. 5.
[12]Dr Paul Taylor, Submission 216, p. 5.
[13]Australian Christian Lobby, answer to questions on notice, 20 October 2023 (received 24November2023), p. 3.
[14]Australian Christian Lobby, answer to questions on notice, 20 October 2023 (received 24November2023).
[15]Australian Christian Lobby, Submission 143, p. 5.
[16]Human Rights Law Alliance, Submission 14, p. 3.
[17]Human Rights Law Alliance, answer to questions on notice, 20 October 2023 (received 9November2023), p. 1.
[18]Mr Daniel Simon, Solicitor for the Human Rights Law Alliance and Legal Representative for the Australian Christian Lobby, Committee Hansard, Friday 20 October 2023, p. 20.
[19]Mr Daniel Simon, Solicitor for the Human Rights Law Alliance and Legal Representative for the Australian Christian Lobby, Committee Hansard, Friday 20 October 2023, p. 21.
[20]Human Rights Law Alliance, Submission 14, p. 3.
[21]Rule of Law Institute of Australia, Submission 327, p. 3.
[22]Christian Schools Australia, Submission 64, pp. 10–11.
[23]Human Rights Law Alliance, Submission 14, p. 9.
[24]Rule of Law Institute of Australia, Submission 327, p. 4.
[25]Rule of Law Institute of Australia, Submission 327, p. 4.
[26]Mr Chris Merritt, Rule of Law Institute of Australia, Committee Hansard, 20 October 2023, p. 41.
[27]Associate Professor Mark Fowler, Committee Hansard, Friday 20 October 2023, p. 22.
[28]Dr Paul Taylor, Submission 216, p. 7.
[29]Professor Nicholas Aroney, Professor Richard Ekins KC (Hon) and Dr Benjamin Saunders, Submission 333, p. 2.
[30]Associate Professor Mark Fowler, Committee Hansard, Friday 20 October 2023, p. 21.
[31]Professor Nicholas Aroney, Professor Richard Ekins KC (Hon) and Dr Benjamin Saunders, Submission 333, p. 15.
[32]Executive Council of Australian Jewry, Submission 26, p. 1.
[33]Professor Nicholas Aroney, Professor Richard Ekins KC (Hon) and Dr Benjamin Saunders, Submission 333, p. 17.
[34]Australian Christian Lobby, answer to questions on notice, 20 October 2023 (received 24 November 2023), p. 5.
Senate
House of Representatives
Get informed
Bills
Committees
Get involved
Visit Parliament
Website features
Parliamentary Departments