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I didn’t know Alan Missen. But if I did I think I’d have liked him. He was a politician who stood up for human rights throughout his political career and through organisations like Amnesty International and Liberty Victoria. 

Two people I know knew him - and wrote about him. The great Michael Kirby delivered the first Alan Missen Oration in 1986, the year Missen passed away in his home in Balwyn not far from where I was growing up. 

The also great Anton Hermann, who has sadly left us, wrote his biography.  

Kirby writes that Alan Missen’s life “was a constant quest for a compassionate and tolerant society, respecting precious individuals.”  

Hermann writes that Alan Missen was a “law reformer and a champion of civil liberties at home and abroad, was an exemplary parliamentarian whose impact on political life was far out of proportion to his backbench status.” 

Alan Missen seems to have been a principled and sometimes difficult person. Former Foreign Minister Gareth Evans wrote:  

 Alan had about him the slight rattiness of a true civil libertarian, which led him not only to be unwilling to accept along the way a lot of the compromises which I – not to mention others in his own Party – would put to him, but also to him getting caught up in some fierce battles with his erstwhile friends. 

So perhaps I need to aspire to a slight rattiness to be a true civil libertarian. 

Missen was a strong supporter of the �����鱨վ, the organisation I now lead.  &�Բ�����;

The Fraser Government, of which Missen was a member, established the first iteration of the Commission in 1981. The Hawke Government made us permanent under our current legislation in 1986. We celebrate our 40 year anniversary next year. 

I wonder what Missen would make of the current situation on human rights in Australia over the past 4 decades? 

To answer this question, and draw us into discussing an Australian Human Rights Act - I need to quickly do some 60,000 plus years of scene setting in a few short minutes.  

We are on Wurundjeri land. I acknowledge their elders and ancestors and their continuing unbroken connection to country and culture. 

We are in an elite institution – where I studied – which was founded partly from wealth taken from First People’s land. 

An institution which historically excluded and harmed First Peoples.  

But which is now seeking to right the wrongs of the past, including through its own truth telling. 

First Peoples have occupied the lands now called Australia for thousands of generations. 

As the Uluru Statement from the Heart says: 

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs.  

This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago. 

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples … It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown. 

The British First Fleet arrived in Sydney 237 years ago. They planted their flag, read some legal words in a language foreign to First Peoples, and claimed possession and sovereignty – British control, authority, law and governance – over half the continent. A few decades later they claimed the entire continent. 

 In 1901 the nation of Australia was created. The Australian Constitution – the rule book for the new nation – had very few explicit human rights protections.  

The drafters expressly did not want to give equal rights to First Peoples or others with dark skin. The Constitution today still has wording contemplating that people could be denied a vote based on their race. 

During WW2, the language of human rights emerged more strongly. Australia was an original signatory to the 1942 United Nations Declaration which sought to define what the Allies were fighting for.  

The signatories declared, “complete victory … is essential to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands”. 

The modern human rights movement then emerged out of the horrors of World War 2. The international community came together and said, “Never Again”.  

To promote global peace, development and prosperity they came up with new international laws and institutions, most notably the United Nations and the .

Australia was a leading force in drafting the 1945 UN Charter and the 1948 Universal Declaration.  

Australia’s Doc Evatt and Jessie Street pushed for stronger rights guarantees including an international court to enforce the Declaration.  

An Australian, William Hodgson, was one of just nine people on the drafting committee led by the extraordinary Eleanor Roosevelt. 

Out of the mass slaughter and human suffering, these drafters created a document that should rightly be celebrated as one of the pinnacles of human achievement. 

The first article of the UN Declaration proclaims that all human beings are born free and equal in dignity and rights. 

These simple words say to every one of us, no matter who you are, or where you are - you have value, you matter and you deserve dignity – because of the mere fact that you are human. 

The words are grounded in our common humanity. Regardless of our differences, we all are human. No us and them. 

We all bleed the same. We all love. We all suffer. We all experience hope, sadness, wonder and joy. 

The Declaration set a new global standard of equality and played a key role in rejecting the idea that some humans are worth less than others – the corrosive prejudice that gave rise to slavery, colonisation, eugenics, genocide and more.  &�Բ�����;

The Universal Declaration in 1948 was followed by human rights treaties which successive Australian Governments voluntarily committed to comply with under international law. 

Treaties for:

• Racial equality
• Civil and political rights
• Economic social and cultural rights
• Equality for women
• Stopping torture and other mistreatment
• �����鱨վ’s rights
• Rights for people with disability 

And a UN Declaration outlining specific rights for Indigenous Peoples. 

What are human rights? 

So what are human rights? 

Human rights are standards that governments around the world have agreed to meet so that everyone can live a safe, free and dignified life.  

Human rights belong to all of us, no matter who we are, where we come from, what we look like or what we believe.  &�Բ�����;

Human rights are the key to living well. They are about being treated fairly, treating others fairly and being able to choose how we live our lives.  &�Բ�����;

Human rights reflect values like equality, freedom, respect, dignity, kindness, thinking of others and looking out for each other.  

In Australia, many people use their human rights without thinking much about them: 

• When we drive or take the train to see friends and family we use our freedom of movement.
• When we join a trade union, a sporting club or a community group we use our freedom of association.
• When we attend a protest we use our freedom of peaceful assembly and expression.
• When we worship in a church, temple, mosque or synagogue, we use our freedom of religion.
• When we take our children to the doctor we use our right to health.
• And when we get a job we enjoy our right to work.
• Australia, by world standards, has done a reasonably good job of protecting rights. 

But there are clear failures over history, most notably our treatment of Australia’s First Peoples. 

Today, for most of us, most of the time in Australia is a great place to live where our human rights are respected and upheld.  

But for many, human rights are part of a daily struggle for dignity, respect, freedom and equality. 

A woman experiencing family violence has her right to safety and security of person denied.  

An Aboriginal man who dies in custody because of prison failures has his right to life and to humane treatment in detention denied.  

A gay or lesbian student bullied at school because of their identity has their rights to equality and to education denied.  

A refugee unfairly locked up in immigration detention has their freedom from arbitrary detention denied.  

A person with cognitive disability who has control of their finances taken away unfairly has their rights to equality, privacy and property denied. 

An older person with dementia denied proper hygiene, food and care and subjected to restraints in an aged care facility, has their rights to health and to freedom from inhuman and degrading treatment denied. 

The problem 

All of these human rights treaties sound excellent – and in a way they are. 

But it’s vital to understand the limitations of international law. 

The problem is that under our system of laws, when Australia signs up to a treaty under international law, that treaty does not automatically become part of Australian law.  

People in Australia cannot directly enforce the rights Australia has agreed to comply with. 

It’s left to Australian governments and parliaments to pass laws protecting our human rights. And unfortunately, they haven’t done a good enough job of this. 

Our promises on the global stage are not properly backed up. 

Our human rights protections are patchy. 

Our human rights safety net has holes in it. 

There are many examples of how this creates problems for people; from the Royal Commissions into Robodebt, disability and aged care, to the treatment of Australian citizens overseas during COVID-19, to the federal police raids on the ABC newsroom and a journalist’s home for their public interest journalism.  

The right of children to an education is surely something we can all agree on. 

The NSW Education Act recognises this right. It has some lofty principles at the start of the Act in section 4 which reads: &�Բ�����;

(a)  every child has the right to receive an education… &�Բ�����;

(c)  it is the duty of the State to ensure that every child receives an education of the highest quality, &�Բ�����;

(d)  the principal responsibility of the State in the education of children is the provision of public education. &�Բ�����;

 Unfortunately, at the back of the Act, buried in section 127 it says that nothing in section 4 gives rise to any legally enforceable right. &�Բ�����;

In other words, the NSW Government and Parliament is happy to talk the language of rights in the legislation but not to hold itself legally accountable to people in actually delivering on those commitments. 

An Australian Human Rights Act 

An Australian Human Rights Act would help to prevent issues like these. 

A Human Rights Act would list all the rights of all Australians in the one place in Australian law and protect those rights.

The �����鱨վ proposed a model for a Human Rights Act in our Free and Equal Project. 

Last year, the Australian Parliament’s Human Rights Committee recommended establishing a Human Rights Act based on our model. Josh Burns spoke about the Committee’s work in this oration last year. 

Under our model, a national Human Rights Act will be a normal piece of legislation passed by the Australian Parliament. 

It would apply only to federal government bodies like departments, the Australian Federal Police, Centrelink, Medicare, the National Disability Insurance Agency and more. 

We already have Human Rights Acts based on this model operating effectively in the ACT, Victoria and Queensland applying to their respective state and territory government bodies.

I’ve lived in Melbourne most of my life and most of my career as a community lawyer, human rights advocate and law reformer has been since Victoria’s Human Rights Act – called the Charter of Human Rights and Responsibilities -  was passed in 2006. &�Բ�����;

I’ve seen firsthand the positive impact of a state-based Human Rights Act. &�Բ�����;

I’ve been involved in hard fought human rights legal action. But I’m firmly convinced that the biggest impact the legislation has had is well away from any court room. &�Բ�����;

You see working properly, what human rights acts do is prevent human rights breaches from occurring.  &�Բ�����;

Human Rights Acts do this by requiring governments and public servants to do 2 main things - to properly consider and act compatibly with human rights when developing policies, making decisions and delivering services.  &�Բ�����;

This fosters a better understanding of rights and a culture of thinking about people’s rights.  

Human Rights Acts force governments to think about human rights before they act.  &�Բ�����;

The experience from Victoria, the ACT, Queensland and places like the UK and NZ is that this is where Human Rights Acts have had the biggest impact - in developing better laws, policies and services.  &�Բ�����;

Most of this work is done quietly, as part of the normal business of government by requiring governments to ask: &�Բ�����;

• What’s the goal we’re seeking to achieve with this law?  
• Will it restrict rights?  
• If so, is it justified?  
• Is there are less restrictive way to achieve that goal?  &�Բ�����;

These questions, known as the proportionality test, are an incredibly powerful way of focussing government attention on people. &�Բ�����;

Applying this test is human rights in action delivering good, human-focused law and policy making. &�Բ�����;

The genius of this framework is how it helps governments to make better decisions that promote people’s rights – no matter what the policy challenge. 

Rights often intersect – whether it’s around issues like protests, religious freedom, criminal justice issues or advances in new technology. 

This proportionality test at the heart of human rights law – asking is there a less restrictive way to achieve the policy goal – provides a way to maximise intersecting rights to the greatest possible extent. 

It is of course critical that people have the power to take action to protect their rights – including taking action in court before a thankfully unelected judge. 

Otherwise governments won’t take people’s rights seriously. &�Բ�����;

Rights without remedies are not rights at all. &�Բ�����;

But again, looking at the experience in Victoria, ACT and Queensland and overseas, most of the good work here happens efficiently through raising complaints with agencies either directly - or through free and accessible complaint mechanisms - the Ombudsman in Victoria, or the Human Rights Commissions in Queensland and the ACT. 

I encourage you to take a look at the Human Rights Law Centre’s online publication  showing the benefits of a Human Rights Act. &�Բ�����;

There are so many ways, big and small, that a Human Rights Act can help make people’s lives better. 

Stopping families from being evicted into homelessness. 

Securing dignity and equality for people with disabilities. 

Helping women fleeing family violence. 

I’ll give two particular examples. 

In 2013, I was working at the Human Rights Law Centre when two men living in public housing approached us for help. They told us about new Victorian Government rules that banned political rallies on public housing estates and banned residents from putting political information on noticeboards. The rules also banned door knocking by political representatives and candidates on public housing estates and barred them from booking community facilities.  

We worked with the men to change the new rules, arguing that they breached public housing residents’ rights to freedom of assembly and expression in the Charter and to participate in public affairs. We engaged with government and with the media. In response, the government revised the new rules to remove the bans, while keeping a reasonable restriction that limited protests at certain hours on the estates so as not to disturb people sleeping. 

In Queensland a woman’s application to home school her child with a learning disability was refused by the Department of Education because she didn’t provide a residential address. The woman had provided a town name, mobile phone number and postal address. She wanted to keep her home address private as she and her children had moved to escape domestic violence. She wanted to keep her family safe from her former partner who had successfully located her in the past.  

With help from the Cairns Community Legal Centre, the woman asked the Queensland Civil and Administrative Tribunal to review the Department’s refusal decision. The Tribunal approved her home schooling application, relying heavily on the Queensland Human Rights Act. The Tribunal referred to relevant rights including the child’s right to protection in their best interests, to access education appropriate to their needs, and the family’s right to privacy. The Tribunal interpreted the education legislation in a way that was compatible with these rights as required by the Human Rights Act – allowing her to home school her child without revealing their home address. &�Բ�����;

These two cases out of countless others that show how Human Rights Acts help to improve our lives – and why we need one at the national level applying to Australian Government bodies. 

So why don’t we have an Australian Human Rights Act? 

Australia is unique as being the only Western democracy without a national Human Rights Act or similar law. 

There have been various attempts to establish one, most recently under the Rudd Government. 

The Rudd Government set up a national consultation on human rights in 2009 led by Father Frank Brennan – a Catholic priest, lawyer and academic - who was a self-declared “fence sitter” on the best way to protect rights in Australia. 

Following widespread national consultations and reviewing all the evidence, his committee made strong recommendations for human rights reform including for an Australian Human Rights Act. 

But the Human Rights Act recommendation wasn’t implemented. Instead, the Rudd Government merely adopted an enhanced version of human rights scrutiny of new laws – a step up from the scrutiny system Alan Missen helped to create in 1980’s.  

As my friend Phil Lynch described it at the time, it was like getting the icing but not the cake. 

Why didn’t we get the cake? 

There were many reasons, including where the government was in its downward political cycle.  

But it’s worth pointing out that many of the key opponents to a Human Rights Act in 2009 have changed their thinking, softened their positions or invoked human rights to protect their own interests. 

Influential media organisation News Limited opposed a Human Rights Act in 2009. But in 2019 after the federal police raided one of their journalist’s home and the ABC newsroom, Executive Chairman Michael Miller wrote: 

We are the only democracy we compare ourselves to that does not protect free speech and the freedom of the press through a charter or bill of rights. 

While a bill of rights or legislation to enshrine the principle of freedom of the press and free speech are good ambitions, they are a long way off and there is so much that can be done right now. 

Alongside other media leaders, he was of course right to point to the growing threats to press freedom in Australia – and to recognise the role that human rights protections can play in strengthening press freedom and democracy. 

When a police officer is considering executing a search warrant on a journalist for their public interest journalism exposing potential war crimes - or when a prosecutor is considering prosecuting a whistleblower for sharing information with the journalist about the potential war crimes - you want those public official to be required to properly consider and act compatibly with human rights including freedom of expression which protects press freedom. 

Former NSW Premier and Foreign Minister in the Rudd Government Bob Carr also opposed a Human Rights Act back in 2009. But he has changed his views, saying earlier this year in relation to a push for a NSW Human Rights Act “I would not oppose a state-based act and given the challenge for civil liberties, it justifies us considering one.” His shift was influenced by a “pile-up of national security legislation” which could give “police and security agencies a range of powers that could allow for abuse”. 

The Catholic Church and other religious conservatives opposed a Human Rights Act back in 2009. But they were later quick to invoke the rights protection of freedom of religion, including in the International Covenant on Civil and Political Rights, on issues like marriage equality or forcing priests to break the confessional seal by mandatorily reporting child abuse.  

As former Human Rights Commissioner, MP and marriage equality campaigner Tim Wilson said at the time, “Where this discussion around having an extra protection around religious freedom takes us is towards a charter or a bill of rights,” and “It’s an oddity to see many people who identify as conservative or socially conservative who have traditionally opposed a bill of rights or charter of rights now prosecuting this cause.” 

A Human Rights Act would better protect religious freedom in Australia – for the Catholic Church and for all religions. And it would provide a better way to balance the protection of religious freedom with the rights of others – including the right to equality – in a way that maximises the rights of all to the greatest possible extent. 

A Human Rights Act is something that parties across the political spectrum should support. 

Polling by Amnesty, the Human Rights Law Centre, the Brennan Inquiry and even the ANU back in the 90’s shows that there is consistently strong majority public support for a Human Rights Act. 

The Brennan Inquiry research also crushed the either or argument for human rights protection. It showed that people want both the Parliament and the courts to do a better job protecting their rights. 

There is a community campaign for a Human Rights Act backed by over 100 organisations – First Nations, faith-based, disability, migrant, homelessness, sexual assault, privacy organisations, unions and more. 

A Human Rights Act would also help to improve our lagging standards of human rights, democracy and civics education. It’s much easier to teach people about democracy and rights when you’re pointing to an Australian law which lists all of our rights in the one place, instead of a bunch of unenforceable international treaties. 

And finally, I firmly believe a Human Rights Act would help to bring us together as a nation around a shared set of values. 

What is it that unites us as Australians? How do we define what we stand for as a nation? 

Our today talks about our shared values as Australians. What are these values?  

The booklet says: Australians believe in shared values such as the dignity and freedom of each person, equal opportunity for men and women, and the Rule of Law. Australian citizenship is about living out these values in everyday life.  

It goes on to describe other “core” values including freedom of speech, freedom of association and freedom of religion. 

New citizens must make a pledge saying: 

I pledge my loyalty to Australia and its people, 
whose democratic beliefs I share, 
whose rights and liberties I respect, and 
whose laws I will uphold and obey.  

So it seems that human rights values are at the heart of what it means to be Australian. 

The problem is, we’re not properly living up to these values. 

Part of living up to human rights values is about protecting human rights in Australian law. 

 A Human Rights Act would be like a reverse citizenship pledge where Australian governments and parliaments legally promise to protect the human rights of all Australians. 

An Australian Human Rights Act is a long overdue missing part of the democratic foundations of this country. 

It would translate our values into legal protections to improve people’s lives.  

It would help make our society fairer for all. 

A full recording of Hugh’s speech can be found