Submission to National Human Rights Consultation (2009)

Legal

National Human Rights Consultation

��鱨վ
Submission

June 2009

Download Complete Submission and Appendices PDF [1.7 MB]

Download in word

1 Introduction
2 Summary
3 Recommendations

PART A: Which human rights should be protected and promoted in Australia?

4 Introduction
5 What are human rights?
6 Where do Australia’s human rights obligations come from?
7 What are Australia’s obligations under the major human rights treaties?

PART B: Are human rights currently sufficiently protected and promoted in Australia?

8 Introduction
9 The Commission’s experience: examples of insufficient human rights protection in Australia
10 Human rights treaties have not been adequately incorporated into Australian law
11 Australia’s Constitution does not fully protect human rights
- 11.1 Example: Australia’s Constitution does not protect racial equality – the Northern Territory Emergency Response
- 11.2 Example: Australia’s Constitution did not stop Parliament from making laws that authorised indefinite detention – the Al-Kateb case
12 Human rights can be overlooked in law and policy development processes
13 The common law does not properly protect human rights
14 Administrative decisions may breach human rights
- 14.1 Example: Right to life – the ‘Bali Nine’ and the death penalty
15 Australia does not always provide effective remedies for human rights breaches
16 The ��鱨վ’s human rights protection functions are limited
17 Anti-discrimination laws do not protect all human rights or prohibit all types of discrimination
- 17.1 Example: Discrimination on the grounds of criminal record
18 Resources for human rights education are seriously inadequate

PART C: How could Australia better protect and promote human rights?

19 Introduction: five major reforms to improve human rights protection in Australia
20 A Human Rights Act for Australia
21 An Equality Act for Australia
22 Australia’s Constitution should be amended to protect and promote human rights
23 Enhance human rights education in Australia
24 Enhance the role of the ��鱨վ

Appendix 1: Recommendations

Appendix 2: Further specific measures that would better protect human rights in
Australia

Appendix 3: Statement of Constitutional Validity of an Australian Human Rights Act

Appendix 4: What legal mechanisms protecting human rights exist in other
jurisdictions?

Appendix 5: Australian Human Rights
Commission activities during the National Human Rights Consultation

Appendix 6: Summary of Commission
workshops for children and young people

1 Introduction

The ��鱨վ (the Commission) welcomes the
opportunity to make this submission to the National Human Rights Consultation
(the Consultation).
The Commission is Australia’s national human rights institution, with
23 years of experience promoting and protecting human rights in Australia.
The Consultation provides the first ever Australia-wide consultation about
protecting and promoting human rights. This broad-based consultation process is
a good example of participative democracy – people throughout Australia
have been given an opportunity to tell the Australian Government how they want
their human rights protected.
The Commission acknowledges that there is a significant divergence of views
about the appropriate mechanisms for protecting human rights in Australia. The
Consultation Committee has been asked to ‘consult broadly’, to
‘seek out the wide range of views held by the community about the
protection and promotion of human rights’ and to ‘provide an
assessment of the level of community support for each option it
��Գپ��ھ��’.
Genuine and broad-based support for the better protection of human rights in
Australia is the first step towards creating a vibrant human rights culture
across the country. Consequently, the Commission sees this consultation process
as critical in moving towards enhanced human rights protections for all people
in Australia.
The Commission’s long experience working on human rights issues places
it in a unique position to offer recommendations about the most appropriate
mechanisms for better protecting human rights in Australia.
The Commission has consulted directly with Australians about their human
rights concerns for over two decades. This includes, for example, people from
vulnerable communities including Aboriginal and Torres Strait Islander peoples,
people with a disability and people who are homeless. It also includes
‘ordinary’ Australians from a broad cross-section of the community,
including women from all walks of life and people who live in rural and remote
Australia.
Overwhelmingly, the Commission hears that Australians care about their
fundamental human rights and think that there should be better protection of
these rights.
In light of all the Commission’s experience and after careful
consideration, the Commission has come to the view that a better developed
culture of respect for human rights is essential to improved human rights
protection in Australia. The Commission believes that a number of measures must
be taken to achieve this cultural change – and that the centre-piece of
these measures should be a Human Rights Act which requires each of the three
branches of government to integrate consideration of human rights into its
everyday work.
Australia played a significant role in drafting the Universal Declaration
of Human Rights in the 1940s. Now, over 60 years later, it is time to make
these human rights real for all people in Australia. It is time to bring human
rights home.

2 Summary

Australia’s strong traditions of liberal democracy, an independent
judiciary and a robust media have been sufficient to protect the rights and
freedoms of most people in Australia, most of the time. However, not all people
in Australia can be confident of enjoying this protection in respect of all
aspects of their lives all of the time.
Australia needs a system of government that makes sure that all people, no matter who they are, what they do, or where they live, have a safety
net to protect their fundamental human rights.
All people in Australia should be able to name the human rights that the
Australian Government has pledged to protect; and they should understand their
responsibility to respect the rights of others.
A stronger human rights culture will build respect for the human dignity,
freedom and equality of all people in Australia.
This submission addresses the following key questions.

Part A
– Which human rights should be protected and promoted in
Australia?

The Commission believes that Australia should protect and promote all human
rights in the international human rights treaties to which Australia is a party
and the international human rights declarations Australia supports.
Many of the human rights in international instruments the Australian
Government has agreed to uphold have not yet been implemented in Australia. This
should change. Australia should live up to its international commitments by
ensuring that human rights standards are brought into domestic
law.

Part B - Are human rights currently sufficiently protected
and promoted in Australia?

In the Commission’s view, human rights are not sufficiently protected
and promoted in Australia at present. Most of the international human rights
instruments that Australia has promised to uphold are not recognised in
Australian law. There is no single place in Australian law where people can find
a clear statement of the rights which are recognised by that law.
Furthermore:
- the Australian Constitution does not fully protect human rights
- Parliament can make laws that breach human rights without providing explicit
  justification
- human rights can be overlooked in law and policy development processes
- the common law does not adequately protect human rights
- administrative decisions may breach human rights
- Australia does not always provide effective remedies for human rights
  breaches
- the ��鱨վ’s human rights protection
  functions are limited and its funding base is inadequate
- anti-discrimination laws do not protect all human rights or prohibit all
  types of discrimination
- resources for human rights education are seriously inadequate.

Part C - How could Australia better protect and
promote human rights?

A good system of human rights protection involves consideration of human
rights at all levels, and by all branches of government, with the aim of
preventing human rights violations. It also involves providing enforceable
remedies for people whose human rights are breached.
The building blocks of such a system include:
- a Parliament that considers the human rights implications of all new
  laws
- Australian Government decision-makers who respect human rights when
  implementing laws, developing policy and delivering public services
- Australian courts that consider human rights when making decisions
- the right to challenge government decisions which breach the human rights of
  individuals
- all people in Australia being aware of their human rights and their
  responsibility to respect the rights of others.
The Commission believes that the following key measures would help to create
a better system of human rights protection in Australia:
- a national Human Rights Act
- strengthened and streamlined federal anti-discrimination laws which extend
  the grounds of prohibited discrimination and promote equality
- constitutional reform to
  - recognise Indigenous peoples in the preamble to the Australian
    Constitution
  - remove racially discriminatory provisions from the Australian
    Constitution
  - replace discriminatory provisions with a guarantee of equality and
    non-discrimination
- a significantly enhanced national program of human rights education
- enhancing the role of the ��鱨վ to support the
  better promotion and protection of human rights, and ensuring adequate funding
  for the Commission to fulfil that role.
In making the key recommendation that a national Human Rights Act should be
adopted, the Commission respectfully acknowledges the range of views about the
best way to protect and promote human rights in Australia. Alternative arguments
include, but are not limited to:
- the argument for a constitutionally entrenched bill of rights
- the argument for a stronger form of statutory human rights protection
- the argument that our current system of government provides adequate
  protection for human rights and that no specific human rights law is necessary
  or desirable.
The Commission has carefully considered these alternatives and has engaged
in many discussions about the pros and cons of the various models. Ultimately,
the Commission has come to the view that the best way to protect and promote
human rights is through a national Human Rights Act, similar to the model used
in the United Kingdom, New Zealand, Victoria and the Australian Capital
Territory.
The Commission believes that such a Human Rights Act would ensure that
relevant human rights are considered every time a government law, policy or
other decision is made. In this way, a Human Rights Act would help promote the
development of a culture of respect for human rights, thus helping to prevent
human rights breaches before they occur, and introduce greater transparency and
accountability into our system of government.

A Human Rights Act
would be an exercise of parliamentary supremacy

A national Human Rights Act should make sure that Australian Government
decision-making respects human rights, while ensuring that parliamentary
supremacy is preserved.
Enacting a Human Rights Act would, in itself, be fundamentally democratic.
It would be Parliament deciding how it believes human rights should be
protected, promoted and respected in Australia. It would be Parliament deciding
how its own processes and those of the executive and the courts should be
altered to achieve that human rights protection.

A Human Rights
Act should bring human rights into parliamentary law-making processes

A Human Rights Act should require the federal Parliament to consider human
rights when it makes new laws:
- each bill introduced into Parliament should be accompanied by a human rights
  compatibility statement
- a parliamentary Human Rights Committee should be established to review the
  compatibility of each bill with the human rights set out in the Human Rights
  Act
- Parliament should be required to publicly explain a decision to adopt a law
  that is inconsistent with the Human Rights Act.

A Human
Rights Act should bring human rights into government decision-making
processes

A Human Rights Act should require the Australian Government to respect human
rights when developing policy, making decisions and delivering services:
- all Cabinet submissions should be accompanied by a Human Rights Impact
  Assessment
- all federal public authorities should respect the human rights set out in
  the Human Rights Act by
  - considering and respecting human rights when they make decisions
    and set policies
  - preparing internal Human Rights Action Plans
  - reporting annually on compliance with the Human Rights Act
  - ensuring that public servants receive adequate human rights
    training.
It should be unlawful for a public authority to:
- act in a way that is incompatible with human rights
- fail to give proper consideration to human rights in decision-making.

A Human Rights Act should bring human rights into the
courts

Federal courts and tribunals should be required to interpret legislation, as
far as it is possible to do so consistent with the statutory purpose, in a
manner that is consistent with the human rights in the Human Rights Act.
There should be a mechanism to alert Parliament when a court finds that a
law cannot be interpreted consistently with human rights. It would then be up to
Parliament to consider the future of that law. The courts would not have the
power to invalidate legislation.

A Human Rights Act should
provide remedies for breaches of human rights

A Human Rights Act should provide ways for individuals whose human rights
have been breached to seek remedies. These remedies should include:
- internal complaint handling mechanisms within federal public
  authorities
- conciliation of complaints by the ��鱨վ
- a cause of action in the courts
- the right to seek reparations, including compensation where necessary and
  appropriate.

A Human Rights Act should be accompanied
by a national Equality Act

Australia has a thirty year history of anti-discrimination legislation.
However, there remain key grounds of discrimination which are not prohibited in
federal anti-discrimination laws, for example discrimination on the basis of
sexuality. Further, current anti-discrimination laws are inconsistent in their
approach.
Australia’s federal anti-discrimination laws should be modernised and
harmonised. In principle the Commission supports the enactment of a single
Equality Act. However, due to the complexity of this task, there should be an
extensive inquiry about how best to provide statutory protection of equality in
a manner that minimises concerns that a single Act will lose the focus on
discrimination for particular groups within society. Special purpose
Commissioners should be retained.

A Human Rights Act should be
accompanied by constitutional protection of equality for all people in
Australia

Although this submission focuses on a Human Rights Act, such legislation
alone will not be enough to fully protect and promote human rights in
Australia.
The Australian Constitution continues to discriminate on the basis of race.
This is unacceptable. The Australian Government should initiate a process of
constitutional reform to ensure the constitutional protection of equality and
non-discrimination, as soon as possible.

A Human Rights Act
should be accompanied by a strong human rights education program

For Australia to develop a robust human rights culture, all people in
Australia need to better understand their human rights and their responsibility
to respect the rights of others. This includes parliamentarians, court
officials, public servants, private sector workers, students in both schools and
universities and members of the general public.
Currently, human rights education efforts are ad hoc and inadequate. There
is an urgent need for a properly resourced national human rights education
program.

The role of the ��鱨վ
should be enhanced

The ��鱨վ has over two decades of expertise in
the protection and promotion of human rights in Australia. If Australia adopts a
Human Rights Act, the Commission is the appropriate body to assist with the
Act’s implementation and to monitor its effectiveness. In particular, the
Commission should be charged with investigating and conciliating a broader range
of human rights complaints.
However, regardless of whether Australia adopts a Human Rights Act, there is
a range of ways in which, if properly resourced, the Commission’s
functions could be strengthened to ensure better protection and promotion of
human rights. Strengthening the Commission would also lead to an enhanced
ability to address systemic discrimination and build substantive equality.
The Commission at present is not adequately funded. It needs to be properly
resourced to carry out its existing functions and any additional functions would
need to be accompanied by adequate funding.

A Human Rights Act
will not work in isolation of other measures

None of these measures will work in isolation. For there to be a real and
lasting improvement to human rights protection in Australia, all of these
reforms should be implemented.
The cumulative impact of these reforms will be the development of a stronger
human rights culture in Australia. This will lead to a fairer Australia, where
the human dignity, freedom and equality of all people are better respected.

3 Recommendations

The ��鱨վ makes the following key
recommendations to the Consultation:
1. The Australian Parliament
  should enact a national Human Rights Act.
2. The Australian Government should refer to the Australian Law Reform
  Commission for inquiry and report the question of how best to strengthen,
  simplify and streamline federal anti-discrimination laws.
3. The Australian Government should begin a process of constitutional reform
  to protect the principle of equality for all people in Australia.
4. The Australian Government should resource a significantly enhanced
  nation-wide human rights education program.
5. The Australian Government should enhance the powers, functions and funding
  of the ��鱨վ, particularly if a Human Rights Act is
  adopted. Any new functions should be accompanied by appropriate funding.
Further recommendations are made throughout this submission. A full list of
recommendations is provided in Appendix 1.

PART
A: Which human rights should be protected and promoted in
Australia?

4 Introduction

The Consultation Committee has focused on three key questions. The first
asks which human rights (including corresponding responsibilities) should be
protected and promoted in Australia.
The Commission’s answer to that question is that Australia should
protect and promote all human rights in the international human rights treaties
to which Australia is a party and the international human rights declarations
Australia supports.
Many of the human rights in international instruments the Australian
Government has agreed to uphold have not yet been incorporated into Australian
law. This should change. Australia should live up to its commitments by ensuring
that the human rights standards to which it has agreed internationally are
implemented domestically.
This section provides a fuller answer to the Consultation Committee’s
first question by providing brief background on: what human rights and
responsibilities are; where human rights come from; and Australia’s
international human rights obligations.

5 What
are human rights?

5.1 Human
rights are core human values

Human rights are the basic standards of treatment that all people are
entitled to, simply because they are human. They are based on the fundamental
belief that all human beings have inherent dignity and worth.
Human rights are based on core values like freedom, equality, dignity and
respect. They are about living a life free from fear, harassment and
discrimination. They protect people’s freedom to make choices about their
own lives, and they promote equal opportunities for all people to develop to
their full potential.
Equality is one of the most fundamental values underpinning human rights.
Equality is a fundamental right in itself – all people have a right to be
equal before the law and to be protected from discrimination on any ground such
as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other
status.^[1] In addition, all people are entitled to enjoy all of their other human rights
without
discrimination.^[2]

5.2 Human
rights are universal and inalienable

Human rights are universal – they apply to everyone, everywhere, every
day. All people are entitled to enjoy the same basic rights regardless of who
they are, what they look like, where they come from or what they believe
in.
The international community has long recognised that the enjoyment of human
rights and fundamental freedoms is an essential element of a peaceful society.
As acknowledged by the Universal Declaration of Human Rights (the
Universal Declaration), the ‘recognition of the inherent dignity and of
the equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the
�ɴǰ��’.^[3]

5.3 Human
rights are indivisible and interdependent

Human rights are often divided into two broad categories – civil and
political rights, and economic, social and cultural rights. However, in practice
this is an artificial distinction.
In reality, human rights are indivisible and interdependent. The realisation
of all human rights is necessary for an individual to live with dignity and to
enjoy equality. Many civil and political rights cannot be realised unless
economic, social and cultural rights are also secured.
For example, if a person does not enjoy their economic right to adequate
food, their civil right to life will be undermined. Or, if a person does not
enjoy their economic right to adequate housing, they might have difficulty
enjoying various civil and political rights including the right to privacy and
the right to vote.
In the Commission’s experience, many of the most pressing human rights
concerns facing people in Australia relate to economic, social and cultural
rights. These include access to adequate health care, education and housing. And
the restriction of these rights is often linked to civil and political rights
like the right to non-discrimination.
The need for better protection to ensure the progressive realisation of
economic, social and cultural rights in particular is discussed in more detail
in section 20.5 of this submission.

5.4 Human
rights come with responsibilities

It is important to recognise that, just as all people are entitled to enjoy
all human rights, all people also have responsibilities to respect the rights of
others.
This is recognised in the Universal Declaration, which calls on every
individual in society to promote respect for human rights and
freedoms.^[4] It is also recognised in
key human rights treaties, which note that individuals have duties to other
individuals and to their community, and have a responsibility to strive for the
promotion and observance of human rights.^[5]
These responsibilities are not binding legal obligations on individuals.
Nonetheless, respecting the rights of others is a fundamental civic duty. It is
important to promote the awareness and exercise of these responsibilities in
Australia.

6 Where
do Australia’s human rights obligations come from?

Australia as a nation state has a broad range of international human rights
obligations. These obligations exist because Australian Governments have, over
the past sixty years, voluntarily agreed to become a party to various
international human rights instruments, as outlined below.

6.1 Seven
major human rights treaties

Australia is a party to seven of the major international human rights
treaties, as
follows:^[6]

Major human rights treaties	Australia adopted
International Convention on the Elimination of All Forms of Racial Discrimination (CERD)^[7]	1975
International Covenant on Economic, Social and Cultural Rights (ICESCR)^[8]	1976
International Covenant on Civil and Political Rights (ICCPR)^[9]	1980
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)^[10]	1983
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)^[11]	1989
Convention on the Rights of the Child (CRC)^[12]	1991
Convention on the Rights of Persons with Disabilities (Disability Convention)^[13]	2008

The two core treaties, adopted by the United Nations (UN) General Assembly
in 1966, are the ICCPR and the ICESCR.
The ICCPR protects a broad range of civil and political rights. Many of
these aim to ensure that all people are able to participate in public and
political affairs – for example, the right to vote and to run for
election, and freedom of speech, association and assembly. Other rights aim to
protect people’s physical liberty and safety – for example, the
right to life and to be free from torture, freedom of movement, freedom from
arbitrary detention, and the right to a fair trial.
The ICESCR creates obligations on government to progressively realise a
diverse range of economic, social and cultural rights. Many of these relate to
the basic necessities people need in order to lead a healthy and dignified life
– for example, the right to adequate shelter, food and clothing and the
right to adequate health care. Others aim to ensure that all people can develop
to their full potential and have access to economic opportunities – for
example, the rights to a basic education, to work, and to fair and safe
conditions at work.

6.2 Other
human rights treaties

Australia is also a party to a number of other international treaties
relating to human rights, including the
following:

Other human rights treaties	Australia adopted
Convention on the Prevention and Punishment of the Crime of Genocide^[14]	1949
Convention relating to the Status of Refugees^[15]	1954
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery^[16]	1958
Protocol relating to the Status of Refugees^[17]	1973
Convention relating to the Status of Stateless Persons^[18]	1973
Convention on the Reduction of Statelessness^[19]	1973
Convention concerning Discrimination in respect of Employment and Occupation (ILO No.111)^[20]	1973
Optional Protocol to the International Covenant on Civil and Political Rights^[21]	1991
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty^[22]	1991
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict^[23]	2006
Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography^[24]	2007
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women^[25]	2008

Australia has signed but not yet ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or
Punishment.^[26]
There are some international human rights agreements that Australia has not
yet ratified, including the following:
- Optional Protocol to the Convention on the Rights of Persons with
  Disabilities^[27]
- Optional Protocol to the International Covenant on Economic, Social and
  Cultural Rights^[28]
- International Labor Organisation Convention
  169.^[29]

6.3 International
human rights declarations

Australia has expressed support for a number of international declarations
relating to human rights.
Unlike an international treaty, a declaration does not create binding legal
obligations. However, declarations do carry significant political and moral
weight because they are adopted through agreement by the international
community. They therefore act as key standard-setting documents. Or, in some
cases, they codify existing standards.

(a) The Universal
Declaration of Human Rights

The most widely supported international human rights declaration is the
Universal Declaration, which was adopted by the UN General Assembly in
1948.^[30] Australia played a key
role in drafting the declaration.
The Universal Declaration has had a profound influence on the development of
international human rights law. It is globally accepted as a statement of
fundamental rights which should be enjoyed by all human beings – including
civil, political, economic, social and cultural rights. Some people argue that
the Universal Declaration has become so accepted by the international community
over the past sixty years that it has now become a part of international
customary law, binding on all
states.^[31]
Under the Universal Declaration, every individual and organ of society is
called on to promote respect for human rights through teaching and education,
and through the adoption of national and international measures aimed at
securing the recognition of the rights in the
declaration.^[32]

(b) The United Nations
Declaration on the Rights of Indigenous Peoples

Another particularly important international declaration is the United
Nations Declaration on the Rights of Indigenous Peoples (Declaration
on the Rights of Indigenous Peoples), which was adopted by the UN General
Assembly on 13 September
2007.^[33] Under the previous federal government, Australia voted against the adoption of
the declaration. On 3 April 2009, the current federal government reversed this
position and made a formal statement in support of the
declaration.^[34]
The declaration does not ‘create’ new rights. Rather, it
elaborates existing human rights as they apply to Indigenous peoples. It affirms
that:

Indigenous peoples have the right to the full enjoyment, as a
collective or as individuals, of all human rights and fundamental freedoms as
recognized in the Charter of the United Nations, the Universal Declaration of
Human Rights and international human rights
law.^[35]

(c) Other human rights
declarations

Australia also supports a range of other international declarations relating
to human rights, including the following:
- Declaration on the Elimination of All Forms of Intolerance and of
  Discrimination Based on Religion or Belief ^[36]
- Declaration on the Rights of Mentally Retarded
  Persons^[37]
- Declaration on the Rights of Persons Belonging to National or Ethnic,
  Religious and Linguistic
  Minorities.^[38]

7 What
are Australia’s obligations under the major human rights
treaties?

The human rights set out in an international
treaty do not automatically become part of Australian law because the Australian
Government becomes a party to that treaty. However, by becoming a party, the
Australian Government makes a commitment to the international community –
and is thereafter bound by international law – to protect the treaty
rights in Australian law and practice.
The major international human rights treaties require the Australian
Government to take a range of steps to respect, protect, fulfil and promote
human rights.^[39] An overview of the
key steps is set out below.

7.1 Adopt
laws that protect and promote human rights

All of the human rights treaties require Australia to take concrete
measures, including changing or adopting laws, to implement the terms of the
treaty domestically.^[40]
For example, in the case of the ICCPR, Australia is obliged to ‘adopt
such laws or other measures as may be necessary to give effect to the
rights’ recognised in the
Covenant.^[41]
The UN Human Rights Committee has said this means
that:

...unless Covenant rights are already protected by their
domestic laws or practices, States Parties are required on ratification to make
such changes to domestic laws and practices as are necessary to ensure their
conformity with the Covenant. Where there are inconsistencies between domestic
law and the Covenant, article 2 requires that the domestic law or practice be
changed to meet the standards imposed by the Covenant's substantive
guarantees.^[42]

This obligation to implement domestic protection under the ICCPR is
unqualified and took effect as soon as Australia became a party. The UN Human
Rights Committee has said that ‘[a] failure to comply with this obligation
cannot be justified by reference to political, social, cultural or economic
considerations within the
��ٲ��ٱ�’.^[43]
The obligation to ensure that human rights are respected and protected
domestically is primarily the responsibility of the federal government. It is
well established that in federal nations like Australia, this obligation
includes ensuring protections also apply at the state and territory level. For
example, Article 50 of the ICCPR states that ‘[t]he provisions of the
present Covenant shall extend to all parts of federal States without any
limitations or
��泦��پ��ǲԲ�’.^[44]

7.2 Take
administrative, financial, educational and other measures to protect and promote
human rights

In addition to adopting laws that protect and promote human rights, the
Australian Government is obliged to implement all other appropriate measures
required to give full effect to the rights recognised in the human rights
treaties.^[45]
For example, in the case of the ICESCR, Australia is obliged to implement
the Covenant rights using ‘all appropriate means’ including
legislative, administrative, financial, educational and social
measures.^[46]
The ICESCR is slightly different to the other human rights treaties, in that
the obligation to implement the rights is expressed in terms of
‘p��ǲ��
��𲹱��پ��ǲ�’.^[47] This allows
for the full realisation of the rights over a period of time and allows for
resource constraints to be taken into account. However, it still requires the
taking of ‘deliberate, concrete and targeted’ steps towards
realising the Covenant rights using all appropriate
means.^[48] The UN Committee on
Economic, Social and Cultural Rights has also made clear that the ICESCR does
impose minimum ‘core obligations’ in relation to the rights
recognised in the Covenant. In relation to the right to health, for example,
this requires access to health facilities, goods and services on a
non-discriminatory basis; access to minimum essential food which is
nutritionally adequate and safe; and access to basic shelter, housing and
sanitation and an adequate supply of safe and potable
water.^[49]

7.3 Implement
human rights without discrimination

Australia must ensure that it implements all of the rights contained in the
human rights treaties without
discrimination.^[50]
For example, the Australian Government must ensure that all children within
Australia’s jurisdiction can enjoy the rights in the
CRC:

...without discrimination of any kind, irrespective of the
child’s or his or her parent’s or legal guardian’s race,
colour, sex, language, religion, political or other opinion, national, ethnic or
social origin, property, disability, birth or other
status.^[51]

7.4 Provide
effective remedies for breaches of human rights

The
human rights treaties either explicitly or implicitly require Australia to
ensure that a person has access to effective remedies, including judicial
remedies, if their rights are
breached.^[52]
According to the UN Human Rights Committee, an ‘effective
remedy’ requires reparation to the person whose rights have been violated.
Reparations can ‘involve restitution, rehabilitation and measures of
satisfaction, such as public apologies, public memorials, guarantees of
non-repetition and changes in relevant laws and
��پ��’.^[53]
In the case of the ICESCR, the UN Committee on Economic, Social and Cultural
Rights has noted that although administrative remedies can sometimes be enough,
‘whenever a Covenant right cannot be made fully effective without some
role for the judiciary, judicial remedies are
�Ա𳦱��’.^[54]

7.5 Report
to international treaty committees on Australia’s progress

Every two to five years (depending on the treaty), Australia must report to
the UN committee charged with monitoring each major human rights
treaty.^[55]
In those reports, the Australian Government should explain what it has done
to implement the relevant treaty and what progress has been made in the
enjoyment of the rights under the
treaty.^[56] The reports should
include an update on any recent developments in Australian law or
practice.^[57] Reports should also
respond to issues raised by the relevant UN committee in its concluding
observations on Australia’s previous
report.^[58]

Recommendation
1: Australia should promote and protect all human rights in the
international human rights treaties to which Australia is a party and the
international human rights declarations Australia supports.

PART
B: Are human rights currently sufficiently protected and promoted in Australia?

8 Introduction

The second key question asked by the Consultation Committee is whether human
rights are currently sufficiently protected and promoted in Australia.
The Commission’s experience has persuaded it that the answer to this
question is no. While Australia’s laws and democratic institutions provide
an important level of respect for fundamental rights and freedoms, the
protection of human rights in Australia is piecemeal, with systemic weaknesses
and significant gaps.
Many Australians are lucky enough to enjoy most of their human rights
without interference, most of the time. However, there are appreciable numbers
of people in Australia whose rights are infringed on a daily basis. And there is
always potential for people to move from ‘lucky’ to
‘u�Ա��ܳ��’.
For more than twenty years the Commission has heard from people all around
Australia about situations where their human rights have not been properly
protected, and the impacts these experiences have had on their lives and
livelihoods.
This section of the submission provides a brief overview of some of those
human rights problems. It then goes on to discuss the underlying causes of those
problems – the gaps and systemic weaknesses in Australia’s promotion
and protection of human rights.
The gaps and weaknesses in human rights protection in Australia include the
following:
- international human rights treaties have not been adequately incorporated
  into Australian law
- Australia’s Constitution does not fully protect human rights
- human rights can be overlooked in law and policy development processes
- the common law does not properly protect human rights
- administrative decisions may breach human rights
- Australia does not always provide effective remedies for human rights
  breaches
- the ��鱨վ’s human rights protection
  functions are limited and its funding base is inadequate
- anti-discrimination laws do not protect all human rights or prohibit all
  types of discrimination
- resources for human rights education are seriously inadequate.

9 The
Commission’s experience: examples of insufficient human rights protection
in Australia

For almost 23 years, the Commission has worked towards ensuring that the
human rights of people in Australia are promoted and protected. This work has
covered a vast array of issues, and has often been carried out in conjunction
with stakeholders including government, NGOs, educational institutions,
community groups, business and the Australian public. The Commission has
examined numerous laws and policies for their compliance with Australia’s
human rights obligations, conducted nation-wide inquiries into issues of
critical concern, listened to the stories of countless Australians, and
investigated thousands of individual complaints about human rights
breaches.
On a daily basis, the Commission hears from people in Australia who feel
that their human rights have been breached. In many cases the Commission is not
able to offer an effective solution, because its statutory powers are
limited.
It is often the most vulnerable members of society who are most at risk of
falling through the gaps in Australia’s human rights protection. The
following is a very brief snapshot of just some of the ways in which human
rights are insufficiently promoted and protected in Australia.
- Aboriginal and Torres Strait Islander peoples: Aboriginal and Torres
  Strait Islander peoples (Indigenous
  peoples)^[59] continue to face enormous challenges to enjoying their human rights. Compared to
  non-Indigenous Australians, they experience poorer educational outcomes, higher
  rates of unemployment, lower income levels and lower rates of home ownership;
  while at the same time experiencing higher levels of family violence and child
  abuse, and overrepresentation in
  prisons.^[60]
- Homelessness: Every night more than 100 000 people in Australia are
  homeless. One in every two people requesting accommodation from a homeless
  service is turned away.^[61] More
  than 40% of people who are homeless in Australia are younger than
  25.^[62] Indigenous peoples are
  particularly vulnerable to homelessness because of their high levels of
  economic, social and cultural
  disadvantage.^[63]
- Domestic violence: As many as one in three Australian women are
  affected by domestic and family
  violence.^[64] Nearly one in five
  Australian women has experienced sexual violence since the age of
  15.^[65] Domestic violence has been
  identified as the leading contributor to preventable death, disability and
  illness in women aged 15 to 44 in
  Victoria.^[66] Further, domestic
  violence is the most common reason cited by individuals seeking assistance with
  Australian housing services.^[67] A
  high proportion of women with a disability experience domestic
  violence.^[68]
- Gender inequality: Women experience lower levels of workforce
  participation, take on greater shares of caring responsibilities, and are
  generally paid less for the same work than
  men.^[69] In the World Economic
  Forum’s Global Gender Gap Index, Australia is ranked number one (with
  other countries) for educational attainment, but number 41 for labour force
  participation.^[70] Australian women
  who work fulltime earn, on average, 16% less than
  men.^[71] Women are also more likely
  to be engaged in low paid, casual and part-time
  work.^[72] These factors contribute
  to a significant gender gap in retirement
  savings.^[73]
- ��鱨վ and young people: Young people are often
  ‘moved-on’ from public places where they gather, under laws which
  give police broad powers to ‘move-on’ or detain people in public
  spaces.^[74] These powers
  disproportionately impact on young people, especially Indigenous and homeless
  youth. Many children in Australia are subjected to child abuse and neglect or
  are exposed to domestic
  violence.^[75] Others are not able to access adequate educational opportunities, particularly
  in rural and remote
  areas.^[76]
- People with disability: People with disability continue to face
  higher barriers to participation and employment than many other groups in
  Australian society.^[77] People with
  disability represent a significant proportion of Australia's working age
  population (16.6%), yet they participate in the workforce at lower rates, they
  are less likely to be employed when they do attempt to participate, and they
  will earn less if they do get a
  job.^[78] Some people with disability
  face challenges to enjoying their right to vote, given the lack of electronic
  voting for people who are blind or visually
  impaired.^[79]
- People in prison or detention: Some prisoners in Australia face
  difficult conditions due to overcrowding, as well as inadequate health and
  mental health
  care.^[80] UN treaty bodies have raised concerns that children are sometimes detained in
  adult correctional facilities.^[81] Australia’s mandatory immigration detention law remains in place, and some
  immigration detainees face prolonged and uncertain periods in detention in
  violation of the right to be free from arbitrary detention. In addition, some
  children are still held in Australia’s immigration detention
  facilities.^[82]
- People in rural and remote communities: People living in some remote
  and rural areas in Australia face significant challenges to enjoying their human
  rights, particularly the rights to education and health care, due to lack of
  access to adequate services and facilities. Some communities have little access
  to essential support services such as mental health care, accommodation
  assistance for people who are homeless, and alcohol and drug rehabilitation
  facilities. Access to public buildings for people with a disability is also a
  significant challenge in some rural
  areas.^[83]
- People who are gay, lesbian, bisexual, transgender or intersex
  (GLBTI): There is no federal law specifically prohibiting discrimination on
  the grounds of sexuality, sex identity or gender identity. Many GLBTI people in
  Australia still experience significant levels of violence, harassment, bullying
  and discrimination in the workplace and the broader community. Same-sex couples
  do not enjoy equality of rights regarding relationship recognition, including
  civil marriage rights. Some people who are sex and gender diverse face
  difficulties obtaining official documents that accurately reflect their sex or
  gender.^[84]
- People with mental illness: One in five Australians will be affected
  by a mental illness during their lifetime. Many people in Australia with mental
  illness are not able to access prompt and adequate psychological or psychiatric
  care; some have difficulty getting necessary medication; and others face
  challenges accessing adequate accommodation support and welfare benefits. They
  and their families or carers often report being treated with a lack of respect
  and dignity when they seek
  assistance.^[85]
- People from culturally and linguistically diverse backgrounds: Many
  people in Australia face experiences of discrimination, vilification or violence
  because of their ethnic, racial, cultural or linguistic
  background.^[86] Over the past few
  years this has been an increasing issue for Arab and Muslim Australians in
  particular, some of whom have been subjected to discrimination, harassment or
  violence.^[87] Discrimination against
  Jewish people also remains a problem in
  Australia.^[88]
There are many more examples of systemic human rights problems in Australia
than the ones discussed here. Some further examples are discussed as case
studies in sections 11 to 18 below; others are addressed in further detail in
Appendix 2. Undoubtedly, the Consultation Committee’s public consultation
sessions will have revealed many more stories of individual and systemic human
rights concerns.

10 Human
rights treaties have not been adequately incorporated into Australian
law

While some human rights enjoy legal protection in Australia, many aspects of
the major human rights treaties have not been incorporated into
Australia’s legal system. The major human rights treaties that Australia
has agreed to uphold (as discussed in Part A) are not adequately protected in
Australian law.
Some aspects of the right to equality and non-discrimination (as set out in
the ICCPR, CERD, CEDAW, ILO No.111 and the Disability Convention) are
implemented through the four federal anti-discrimination laws – the Racial Discrimination Act 1975 (Cth) (Race Discrimination Act), the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act), the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act)
and the Age Discrimination Act 2004 (Cth) (Age Discrimination
Act).^[89] However, as discussed in
section 21 of this submission, those laws do not fully protect the right to
equality.^[90]
The rights contained in a range of treaties and declarations are recognised
under the Human Rights and Equal Opportunity Commission Act 1986 (Cth)
(the HREOC Act), either as schedules to
it^[91] or as ‘relevant
international instruments’ declared under section 47 of the HREOC
Act.^[92] However, this does not make
those treaties part of Australian
law.^[93] It does mean that the
Commission has jurisdiction to exercise its human rights functions with regard
to those treaty rights, but the Commission cannot make binding recommendations
and cannot enforce remedies for breaches of the rights. Two major treaties
– the ICESCR and the CAT – are not scheduled to the HREOC Act or
declared to be ‘relevant international ��Բ��ٰ��ܳ��Գٲ�’. Nor are they
otherwise fully incorporated into Australian
law.^[94]
The UN treaty bodies charged with monitoring implementation of the ICCPR,
ICESCR, CRC and CAT have each concluded that those treaties have not been
adequately incorporated into Australia’s legal
system.^[95] In many cases this means that a person in Australia who feels that the
government has breached their rights under one of those treaties is left without
an enforceable remedy.
In 2000, the UN Committee on Economic, Social and Cultural Rights expressed
regret that ‘because the Covenant has not been entrenched as law in the
domestic legal order, its provisions cannot be invoked before a court of
law’, and strongly recommended that Australia ‘incorporate the
Covenant in its legislation, in order to ensure the applicability of the
provisions of the Covenant in the domestic
��ǳܰ��ٲ�’.^[96]
In 2009, the same Committee expressed regret that their 2000 recommendation
had not been implemented, and called for ‘comprehensive legislation giving
effect to all economic, social and cultural rights uniformly across all
��ܰ��徱��پ��ǲԲ�’.^[97]
In 2000, the UN Human Rights Committee raised concerns that, in the absence
of a constitutional bill of rights or a constitutional provision giving effect
to the ICCPR, there are gaps in Australia’s protection of the ICCPR rights
and areas where people are not able to access an effective remedy for a rights
violation.^[98]
In 2009, the same Committee reiterated its concerns and recommended:

The State party should: a) enact comprehensive legislation giving
de-facto effect to all the Covenant provisions uniformly across all
jurisdictions in the Federation; b) establish a mechanism to consistently ensure
the compatibility of domestic law with the Covenant; c) provide effective
judicial remedies for the protection of rights under the Covenant; and d)
organize training programmes for the Judiciary on the Covenant and the
jurisprudence of the Committee.^[99]

11 Australia’s
Constitution does not fully protect human rights

Contrary to the belief of many
Australians,^[100] the Australian Constitution does not include a bill of rights, and it offers
only limited protection for a small number of discrete human rights. None of the
international human rights treaties agreed to by the Australian Government have
been incorporated into the Constitution.
When the Australian Constitution was written, the drafters were more
concerned with the rights of the states than with the rights of individuals in
Australia. One of the key arguments against the inclusion of individual rights
in the Constitution at federation was that they would ‘usurp the power of
the States’.^[101] Further,
the drafters were also ‘concerned to maintain the power of colonies, once
they became the Australian states, to discriminate between people on the ground
of their
��’.^[102]
At the Constitutional Conventions in the 1890s, there were no Indigenous
people, women or working men as delegates. Those who drafted the Constitution
were confident that ‘the protections to individual rights provided by the
traditions of acting as honourable men were quite sufficient for a civilised
��ǳ��ٲ�’.^[103]
As a result, the Australian Constitution provides only limited safeguards
for individual rights and freedoms. These include:
- the right to compensation on just terms in the event of a compulsory
  acquisition of property by the
  Commonwealth^[104]
- the right to trial by jury for a federal indictable
  offence^[105]
- the right to challenge the lawfulness of decisions of the Australian
  Government in the High Court^[106]
- a prohibition on making federal laws that establish a religion, impose a
  religious observance or prohibit the free exercise of any
  religion^[107]
- a prohibition on making federal laws that discriminate against a person
  because of the state in which they
  live.^[108]
The High Court has found that some rights are implied in the text of the
Constitution. This includes freedom of expression in relation to public and
political affairs, commonly referred to as ‘freedom of political
��ǳ��ܲԾ��پ��ǲ�’.^[109] This
right is directed at ensuring that people are free to discover and debate
matters which enable them to exercise a free and informed choice as
voters.^[110]
The High Court has rejected suggestions that other basic rights, like the
right to equality, are implied by the text of the
Constitution.^[111] Even for those
rights that are protected by the Constitution, either expressly or by
implication, the Australian judiciary has generally interpreted them
narrowly.^[112] The High Court has not supported the proposition that, in cases of ambiguity,
the Constitution should be interpreted consistently with human
rights.^[113]
Thus, there are many fundamental human rights that the Australian
Constitution does not protect – the right to life, the right to equality
and non-discrimination, the right to be free from arbitrary detention, freedom
of assembly, and the right to be free from torture and cruel or inhuman
treatment – to name just a
few.^[114]
In combination, these factors mean that the Australian Constitution offers
very limited protection for human rights, and very limited constraints on the
ability of the federal Parliament to pass laws that breach human
rights.

11.1 Example:
Australia’s Constitution does not protect racial equality – the
Northern Territory Emergency Response

The UN Committee on the Elimination of Racial Discrimination has expressed
concern that there is no entrenched guarantee against racial discrimination in
Australia.^[115]
While the Race Discrimination Act provides some protection against racial
discrimination, the Australian Constitution does not include protection for the
right to racial equality. This means the federal Parliament can override the
legislative protection offered by the Race Discrimination Act and adopt laws
that discriminate on the basis of race.
The federal Parliament did this in 2007, when it suspended the operation of
the Race Discrimination Act in order to pass the Northern Territory Emergency
Response (NTER) legislation. The NTER legislation introduced measures to address
child sexual abuse and family violence in 73 prescribed Indigenous communities
in the Northern Territory.
The Commission does not dispute that the Australian Government has an
obligation to promote and protect the right of Indigenous peoples to be free
from family violence and child
abuse.^[116] The Commission has
consistently supported those aspects of the
NTER.^[117] However, the Commission
does not accept that to take the urgent action necessary to protect the rights
of children and families, it is necessary to discriminate on the basis of
race.
The NTER legislation measures that discriminate or allow discrimination on
the basis of race include:
- suspending the application of the Race Discrimination Act and allowing
  officials to act in a racially discriminatory way
- controlling how a person spends their money through income management
  measures, a significant interference with the right to privacy
- applying parts of the social security legislation retrospectively
- excluding some aspects of social security administrative decisions from
  review
- acquiring property on a different basis to other property holders in the
  Northern Territory.
The UN Human Rights Committee criticised the Northern Territory Emergency
Response as being inconsistent with Australia’s obligations under the
ICCPR, and expressed particular concern about the suspension of the Race
Discrimination Act and the lack of consultation with Indigenous peoples in
designing the NTER measures.^[118]

11.2 Example:
Australia’s Constitution did not stop Parliament from making laws that
authorised indefinite detention – the Al-Kateb case

In the 2004 case of Al-Kateb v Godwin, the High Court of Australia
was asked to decide whether the Migration Act 1958 (Cth) (Migration Act)
authorises the indefinite detention of an unlawful non-citizen when there is no
real prospect of his removal from
Australia.^[119] The Court
found that a law that resulted in a person being held in immigration detention
indefinitely was constitutionally valid.
Mr Al-Kateb was twenty four when he arrived in Australia by fishing boat,
without a valid visa. He was taken to Curtin Immigration Detention Centre in the
Western Australian desert. Mr Al-Kateb’s application for a protection visa
to stay in Australia was rejected. The Department of Immigration tried to remove
Mr Al-Kateb without success. Mr Al-Kateb was held in immigration detention for
years, with no idea when he would be freed.
In the High Court, Mr Al-Kateb argued that the Migration Act should be
interpreted consistently with Australia’s obligations under the ICCPR,
which protects the right to liberty and prohibits arbitrary
detention.^[120]
The majority of the High Court found that the words of the Migration Act
clearly required Mr Al-Kateb to be detained until he could be removed from
Australia, regardless of the fact that there was no reasonable prospect of this
happening in the foreseeable future. Because the majority decided the words were
unambiguous, they did not consider Mr Al-Kateb’s human rights. Justice
McHugh recognised that the situation was ‘tragic’ but
said:

It is not for courts ... to determine whether the course taken
by Parliament is unjust or contrary to basic human rights. The function of the
courts in this context is simply to determine whether the law of the Parliament
is within the powers conferred on it by the
Constitution.^[121]
According to Justice McHugh, the case illustrated that a judge ‘may be
called upon to reach legal conclusions that are applied with
“t��”
��ǲԲ��ܱ�Գ��’.^[122] This
observation could also be made about other cases – in the same year as the
Al-Kateb case, the High Court also upheld the legality of the
long-term detention of children and confirmed that immigration detention remains
lawful even if the conditions are harsh or
inhuman.^[123]

12 Human
rights can be overlooked in law and policy development processes

As mentioned above, the best system of human rights protection is one that
prevents breaches of human rights occurring in the first place. One of the key
weaknesses in Australia’s current system is that there are no formal
mechanisms to ensure that federal ministers, parliamentarians and government
departments assess the potential human rights implications of laws and policies
before they are adopted.
Parliament can pass laws that breach Australia’s international human
rights obligations without even considering those obligations during the
drafting process, and without public debate or explanation.
The Australian Government can also adopt and implement policy measures
without considering whether those measures promote and protect the human rights
Australia has agreed to uphold.
In recent years, these systemic weaknesses have allowed the adoption of laws
and policies that breach numerous human rights. For example, Australia has
adopted laws and measures that discriminate against Indigenous peoples in the
Northern Territory; laws allowing the indefinite detention of people seeking
asylum; laws discriminating against same-sex couples; and a raft of
counter-terrorism laws that infringe on fundamental freedoms.
There are various stages of the law- and policy-making process where human
rights may currently be overlooked, as discussed below.

12.1 Human
rights may be overlooked at the early stages of legislative
development

The Commonwealth Legislation Handbook (the Legislation
Handbook) describes the procedures for making federal
laws.^[124] It provides a ‘guide for departmental officers and focuses on matters
which require action by departmental
�Ǵڴھ��’.^[125]
The Legislation Handbook does not require ministers or their respective
departments to consider human rights in the law- and policy-making process. This
means that a new policy can be formulated and approved by a minister, and
legislation can be drafted without consideration as to whether it complies with
Australia’s human rights obligations.
The Legislation Handbook does state that the Attorney-General’s
Department should be ‘consulted on proposed provisions that may be
inconsistent with, or contrary to, an international instrument relating to human
��ٲ�’.^[126] However, since
ministers and departments are not required to consider human rights in the first
place, it is unclear how human rights issues will be identified and it is likely
that they will be overlooked in other than clear cases. Further, the Legislation
Handbook does not explain what should happen in the event that the
Attorney-General’s Department does confirm an inconsistency with human
rights.

12.2 Human
rights may be overlooked by Cabinet

The Legislation Handbook requires Cabinet approval for certain significant
policy proposals involving
legislation.^[127] However, the
Handbook ‘does not single out policy proposals with a rights impact for
Cabinet consideration’.^[128] Nor does it require Cabinet submissions to consider how proposals for new
legislation might impact on human rights.
The federal Cabinet Handbook provides further guidance for
departmental officers involved with Cabinet
submissions.^[129] However,
like the Legislation Handbook, this document does not contain any guidance on
how human rights should be considered in the preparation of Cabinet
submissions.

12.3 Human
rights may be overlooked when making subordinate legislation

The Legislation Handbook recommends that ‘rules which have a
significant impact on individual rights and liberties’ and
‘provisions conferring enforceable rights on citizens or
organisations’ should be implemented through primary legislation rather
than delegated (or subordinate)
legislation.^[130]
The Federal Executive Council Handbook, which sets out procedures for
making subordinate legislation, contains no specific guidance on how human
rights should be considered in the drafting and approval of subordinate
legislation.^[131]
Further, the Legislative Instruments Act 2003 (Cth) requires each
legislative instrument to be accompanied by an explanatory
statement.^[132] However, the list
of matters that must be addressed in this statement does not include the impact
of the legislative instrument on human rights.

12.4 Human
rights may be overlooked by parliamentary committees

Parliamentary committees scrutinise government activity including new bills,
existing laws, and issues of public administration and policy.
There are a number of parliamentary committees with special areas of
expertise.However, there is no specialist committee focused on
examining the human rights implications of proposed laws. Further, there is no
general requirement for other specialist committees to consider human rights
during their inquiries, unless their specific terms of reference require them to
do so. In practice, terms of reference rarely include human rights
considerations.
The Standing Committee on Regulations and Ordinances and the Scrutiny of
Bills Committee are governed by the Senate Standing Orders, which require the
Committees to consider whether regulations, ordinances or bills may
‘trespass unduly on personal rights and
��پ��’.^[133] However,
these Committees are given no guidance on which rights and liberties they should
consider, or how they should determine when those rights can be justifiably
limited.

12.5 Human
rights may be overlooked in parliamentary debate

Some opponents of stronger legal protections for human rights suggest that
robust parliamentary debate currently provides sufficient
protection.^[134] However, as
Professor Hilary Charlesworth has observed, this claim:

has little
empirical basis in Australian history: indeed the current operation of the
Commonwealth Parliament indicates the sharp diminution of the role of the
legislature in policy development
generally.^[135]
Bills are often debated and adopted by Parliament with little reference to
the potential impacts on people’s human rights. In some cases,
parliamentarians and the general public may be unaware of the human rights
obligations that could be undermined by the proposed legislation. In some cases,
parliamentarians may be aware, but are not required to explain or justify
publicly the limitations on rights. In other cases, bills are simply rushed
through without adequate time to consider or address the potential human rights
consequences.
Returning to the NTER legislation as an example, it is clear that Parliament
did not hold an informed and rigorous debate about the serious potential human
rights implications of the new legislation.
Alan Ramsey described the passage of the NTER legislation – which has
since had significant impacts on human rights – as follows:

In
the House, which met at 12.30pm, Malcolm Thomas Brough, 45, cabinet minister,
introduced a package of five bills totalling some 700 pages, including
explanatory memoranda. He began speaking at 12.30. He sat down at 1.51pm after
reading five speeches end on end, like sausages. It had taken him 10 minutes
short of two hours just to introduce his five bills. At 9.34 that night it was
all over.

That is, the people's house passed Brough's five bills of 600 pages of
legislative detail just nine hours after the Prime Minister's delegate
introduced them. Debate had lasted four hours and 16 minutes. Fourteen
politicians had spoken, including Brough a second time. Thus in a legislature of
150 MPs, only 13 were allowed only twice as long, collectively, to debate the
bills as it had taken the minister to read his five speeches introducing
them.^[136]
Similarly, over the past decade, numerous counter-terrorism laws were rushed
through Parliament without adequate consideration of, or debate about, their
potential impacts on fundamental rights and
freedoms.^[137]
Both the UN Human Rights Committee and the UN Committee against Torture have
since raised concerns about aspects of Australia’s counter-terrorism
laws.^[138] The impacts of these
laws are discussed further in the case study in section 13.3
below.

13 The
common law does not properly protect human rights

Some human rights are protected by established common law principles. Other
human rights have limited protection through certain principles of statutory
interpretation, as discussed below.
However, many of the human rights the Australian Government has agreed to
uphold are not protected at all by the common law. And the protection that does
exist is fragile. Parliament can adopt legislation that overrides the common law
at any time, without giving due consideration to the human rights implications
and without having to offer public justification.

13.1 The
common law offers some human rights protections

(a) Some human rights are recognised by the common
law

The common law recognises and protects some fundamental rights and freedoms.
For example, the right against self incrimination; aspects of the right to a
fair trial; prohibitions on trespass (which partially protect the right to
privacy); the right to sue for false imprisonment; a presumption of innocence in
criminal trials; and a presumption that the standard of proof in criminal cases
is beyond reasonable doubt.

(b) The development of the common law is influenced
by international human rights

It is possible for the common law to evolve over time to develop stronger
rights protections, as international human rights law can influence the
development of the common law. In Mabo (No 2), Justice Gerard
Brennan said that while the:

common law does not necessarily
conform with international law ... international law is a legitimate and
important influence on the development of the common law, especially when
international law declares the existence of universal human
rights.^[139]
However, this principle is subject to the somewhat ambiguous qualification
that the High Court:

is not free to adopt rules that accord with
contemporary notions of justice and human rights if their adoption would
fracture the skeleton of principle which gives the body of our law its shapes
and internal consistency.^[140]
Further, the common law cannot offer protection where common law rights have
been clearly restricted by legislation. Therefore, as the Hon Michael McHugh has
observed:

the development of the common law by an independent
judiciary by no means provides an adequate safeguard for human rights. It can
not provide the same level of protection as a national Bill of Rights can
do.^[141]

In Coco v The
Queen,^[142] the
majority of the High Court said that ‘courts should not impute to the
legislature an intention to interfere with fundamental rights. Such an intention
must be clearly manifested by unmistakable and unambiguous
��Բ��ܲ��’.^[143]
This common law principle of statutory interpretation is intended to make
sure that rights that are traditionally protected by the common law are not
overridden by legislation unless Parliament has clearly intended to do
so.^[144]

(d) Courts can interpret
ambiguous legislation consistently with human rights

A related common law principle of statutory interpretation is that where a
law is unclear, courts can give the law a meaning that would comply with
international law, so far as the language of the statute
permits.^[145]In particular, where
there is ambiguity, the court should prefer a construction that is consistent
with and advances Australia’s international treaty
obligations.^[146]
In addition, where the specific legislation gives effect to an international
treaty by adopting the words of the treaty, these provisions should be
interpreted using the international jurisprudence relevant to the treaty, unless
there is a clear contrary intention in the
legislation.^[147]

13.2 Common
law protections can be overridden at any time, without explanation

As discussed above, the common law offers a level of protection for some
basic rights and freedoms. Although this protection is not comprehensive or
systematic, the common law is often cited as one of the reasons why
Australia’s current system of human rights protection is sufficient.
This is simply not the case. Human rights protections offered by the common
law are extremely vulnerable. Parliament can pass a law that overrides common
law protections at any time, without having to consider the potential impacts on
human rights and without public justification. Parliament is restricted only by
the very limited protections offered by the Australian Constitution (as
discussed in section 11
above).^[148]

13.3 Example:
Australia’s counter-terrorism laws

Since the terrorist attacks in the United States on 11 September 2001, the
Australian Government has introduced more than 40 new counter-terrorism laws,
often without adequate consideration of, or debate about, their potential
impacts on human rights. Some aspects of these new laws have eroded common law
protections for fundamental rights and
freedoms.^[149]
For example, the right to personal liberty (freedom from arbitrary
detention) has been described as ‘the most elementary and important of all
common law ��ٲ�’.^[150] However, this right has been eroded by recent counter-terrorism laws which have
introduced novel ways for police and the Australian Security Intelligence
Organisation (ASIO) to detain people without trial. For example:
- Detention without charge: The Australian Federal Police (AFP) has the
  power to detain a suspect without charge for 24
  hours.^[151] After 24 hours the AFP
  can seek an order from a court to detain the suspect for a further 24 hours.
  These 24 hour caps do not include ‘dead time’, which can include
  time when the suspect is contacting a lawyer, taking meal breaks and
  sleeping.^[152] This means that, in
  practice, a person can be detained without charge for much longer periods. In
  2007, Dr Mohammed Haneef was detained for 12 days under this power.
- Restrictions on movement: The Anti-Terrorism Act (No. 2) 2005 (Cth) gave federal courts the power to issue control orders in response to a
  request from the AFP.^[153] Control
  orders can force a person to stay in a certain place at certain times, prevent
  them from going to certain places or talking to certain people, or require them
  to wear a tracking device. Depending on the severity of the restrictions
  imposed, a control order could effectively amount to home detention.
- Special powers of detention: The Australian Security Intelligence
  Organisation Legislation Amendment (Terrorism) Act 2003 (Cth) gave ASIO
  special powers to question, or question and detain, a person suspected of having
  information related to an anti-terrorism investigation, even if that person is
  not suspected of a terrorist
  offence.^[154]Under these powers,
  a person who is not suspected of a terrorism offence can be detained for up to
  seven days.^[155] The grounds for
  detention can be kept secret.^[156]
In 2009, the UN Human Rights Committee raised concerns that some provisions
of Australia’s counter-terrorism laws are incompatible with fundamental
rights protected by the
ICCPR.^[157] The UN Committee
against Torture has raised concerns about the new regime of preventative
detention orders and control
orders.^[158] Both committees have
criticised the increased powers given to
ASIO.^[159]

14 Administrative
decisions may breach human rights

Australian laws regularly authorise federal officials and ministers to make
administrative decisions that can have significant impacts on people’s
human rights. It would be reasonable to assume that, when making administrative
decisions, Australian officials will act in accordance with Australia’s
international human rights obligations.
However, while the High Court has held that the ratification of an
international treaty creates a legitimate expectation that administrative
decision-makers will act in conformity with the treaty, this expectation falls
short of a legal right for the person who is the subject of the decision, and
the decision-maker is not bound to comply with the
treaty.^[160]
Courts and tribunals can review administrative decisions to ensure the
decision-maker is acting fairly, within their powers and in accordance with the
law.^[161] However, there is no
general legal obligation upon a decision-maker to give proper consideration to
human rights when making a decision.
At the federal level, the Administrative
Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) sets out the
grounds for judicial review of administrative decisions. Failing to give proper
consideration to a relevant human right is not a ground of review under the ADJR
Act.^[162]

14.1 Example:
Right to life – the ‘Bali Nine’ and the death
penalty

In 2005, nine young Australians were arrested in Indonesia for their
involvement in a plan to smuggle heroin from Indonesia to Australia. Before
their arrest, the AFP provided information to the Indonesian authorities about
the young men and women who are now known as the ‘Bali Nine’. The
information was provided in accordance with guidelines which permit the AFP to
assist police in other countries, even in cases which may attract the death
penalty.
Representatives of four members of the Bali Nine brought an action against
the AFP. In Rush v Commissioner of Police, Justice Finn found there was
no cause of action against the AFP for exposing the members of the Bali Nine to
the death penalty.^[163] The
judgment confirmed that the AFP can lawfully provide ‘police to
police’ assistance in circumstances which could result in a person being
charged with an offence punishable by death. This is despite the fact that
Australia has abolished the death penalty domestically; is a party to the ICCPR,
which protects the right to life; and is a party to the Second Optional Protocol
to the ICCPR, which aims at the abolition of the death penalty
worldwide.^[164]
Three members of the Bali Nine are currently awaiting execution in
Indonesia.

15 Australia
does not always provide effective remedies for human rights breaches

As discussed in section 10 above, many aspects of the international human
rights treaties that Australia has agreed to uphold have not been adequately
incorporated into Australia’s legal system. In many cases this means that
a person in Australia who feels that the government has breached their rights
under one of those treaties is left without an effective remedy.
The Commission provides investigation and conciliation processes to resolve
complaints about certain human rights issues. However, the UN Human Rights
Committee has confirmed that these processes cannot be characterised as
‘effective remedies’ under the ICCPR because the Commission’s
recommendations are not
binding.^[165]
In the last decade, an increasing number of people have resorted to making
human rights complaints to UN treaty bodies because they could not get an
effective remedy within Australia. In a significant number of cases, treaty
bodies have found that Australia has breached the human rights of people within
its jurisdiction.^[166] These
include the following:
- In Brough v Australia, the UN Human Rights Committee found that the
  conditions of detention of an Aboriginal boy with a mild intellectual disability
  violated the right of persons deprived of their liberty to be treated with
  humanity and respect for their dignity, the right of juvenile offenders to be
  segregated from adults, and the right of all children to special protection
  without discrimination. The boy was held in solitary confinement in an adult
  prison, his clothes and blankets were removed from him, and he was exposed to
  prolonged periods of artificial light. While being detained in these conditions,
  he attempted suicide.^[167]
- In Young v Australia, the UN Human Rights Committee found that an
  Australian law discriminated against same-sex couples, in breach of the right to
  equality before the law. Mr Young had been in a relationship with Mr C for 38
  years. Mr C was a war veteran. When he passed away, Mr Young applied for a
  veteran’s pension under the Veterans’ Entitlements Act 1986 (Cth). The Department of Veterans’ Affairs denied his application on
  the basis that he did not fall within the definition of persons who could be a
  veteran’s ‘dependant’, which covered members of de facto
  couples but not same-sex
  couples.^[168]
- In A v Australia, the UN Human Rights Committee found that the
  immigration detention of a Cambodian man at the Port Hedland detention centre
  for more than four years violated his right to be free from arbitrary detention.
  The Committee also found that Mr A’s right to have the lawfulness of his
  detention reviewed by a court had been breached – although an Australian
  court had found his detention was lawful under the Migration Act, the court did
  not consider his rights under the ICCPR, including his right to be free from
  arbitrary detention.^[169]
- In Coleman v Australia, the UN Human Rights Committee found that
  Australia had violated the right to freedom of expression. Mr Coleman was fined
  for breaching a Queensland by-law which prohibited giving a public address at a
  particular pedestrian mall without a permit. He failed to pay the fine and was
  imprisoned.^[170]
In each of these cases, the person whose rights were breached could not
access an effective remedy within Australia – if they had been able to do
so, their complaint would not have been admissible to the UN treaty body.
However, even the views of the UN treaty bodies are not enforceable, and the
Australian Government has often rejected their conclusions and
recommendations.^[171] This means
that a person’s efforts to seek a remedy for a human rights breach may be
extremely time-consuming, expensive and ultimately fruitless.

16 The
��鱨վ’s human rights protection functions are
limited

The ��鱨վ is Australia’s national
independent human rights institution. The Commission’s ‘human
rights’ functions are defined in section 11 and Division 3 of Part II of
the HREOC Act.
Under section 11 of the HREOC Act, the Commission is given the following
functions:
- examine laws and proposed laws to assess whether they are consistent with
  human rights, and report the results of the examination to the Attorney-General
- inquire into acts and practices that may be inconsistent with or contrary to
  human rights
- promote an understanding and acceptance, and the public discussion, of human
  rights
- undertake research and educational programs to promote human rights, and
  co-ordinate other such programs undertaken on behalf of the Commonwealth
- report to the Attorney-General as to the laws that should be made by the
  Parliament, or action that should be taken by the Commonwealth, on matters
  relating to human rights
- report to the Attorney-General as to the action that needs to be taken by
  Australia in order to comply with the provisions of certain human rights
  instruments
- publish guidelines for the avoidance of acts or practices done by or on
  behalf of the Commonwealth that would breach human rights
- intervene, with the leave of the court, in proceedings that involve human
  rights issues
- do anything incidental or conducive to the performance of any other
  functions.
The Commission is empowered to undertake a broad range of work regarding the
promotion and protection of ‘human rights’, as defined in the HREOC
Act. However, in practice the Commission’s ability to properly
promote and protect human rights is limited for the reasons outlined below.
(These issues are discussed further in sections 20.15 and 25 of this submission,
which propose measures to enhance the role of the Commission.)

16.1 The
Commission has limited powers of pre-legislative scrutiny

The HREOC Act provides that the Commission has the power to examine proposed
laws when requested to do so by the
Minister.^[172] However, in
practice the Commission has never received such a request. The
Commission’s role in scrutinising the human rights compatibility of
proposed legislation is often confined to appearances before parliamentary
committees.

16.2 The
Commission’s functions are limited by a narrow definition of human rights

The Commission’s human rights functions are limited by the definition
of ‘human rights’ in the HREOC Act (which includes those rights set
out in the instruments scheduled to the Act and other designated ‘relevant
international
��Բ��ٰ��ܳ��Գٲ�’).^[173]
Under the HREOC Act ‘human rights’ means the rights and freedoms
in:
- the ICCPR
- the CRC
- the Declaration on the Rights of Mentally Retarded Persons
- the Declaration on the Rights of Disabled Persons
- the Declaration on the Elimination of all Forms of Intolerance and of
  Discrimination based on Religion or Belief
- the Disability
  Convention.^[174]
This definition does not include the rights protected by other international
treaties that Australia is a party to, including the ICESCR and the
CAT.^[175]
This means that the Commission cannot inquire into acts and practices that
may breach the rights set out in those instruments, nor can it review
legislation to assess its consistency with those rights, except to the extent
that those rights are also incorporated in other treaties within the
Commission’s statutory
mandate.^[176]

16.3 The
Commission has limited jurisdiction to investigate human rights
complaints

The Commission’s jurisdiction to investigate human rights complaints
is limited to acts or practices of the Commonwealth and does not apply to the
actions of the states or
territories.^[177] This restricts
the Commission’s capacity to investigate systemic human rights issues
across Australia.

16.4 The
Commission lacks adequate resources to fulfil its functions

Insufficient funding undermines the Commission’s capacity to fulfil
its statutory functions, including handling complaints of unlawful
discrimination and promoting public understanding and acceptance of human
rights. As outlined in further detail in section 24.8, the Commission has faced
significant budget cuts since 1996.

16.5 The
Commission cannot enforce its recommendations about human rights
complaints

The HREOC Act provides a right to lodge a complaint with the Commission in
relation to an act or practice by or on behalf of the Australian Government that
is alleged to breach a person’s human
rights.^[178]
If the Commission finds a breach of human rights, it can report to the
Attorney-General. This report can include recommendations for preventing a
repetition of the act or continuation of the practice, as well as the payment of
compensation.^[179] However, these
are not enforceable remedies – they are non-binding recommendations which
are not directly or indirectly enforceable by the courts.
This regime for addressing human rights complaints can be contrasted with
the regime for resolving complaints of unlawful discrimination. If an unlawful
discrimination complaint is terminated by the Commission, the complainant can
commence proceedings in the Federal Court or the Federal Magistrate’s
Court.

16.6 Commission
reports and recommendations can be ignored by government

The Commission can bring human rights concerns or breaches to the attention
of the Australian Government through tabling certain reports in Parliament, or
through other means.
The Australian Government is not, however, required to respond to a
Commission report which shows that a bill or a law is incompatible with human
rights, or to recommendations by the Commission that the government should
provide remedies to an individual victim of human rights violations. This
undermines the Commission’s ability to create a culture where the
government is accountable for the impact of its laws, policies and actions on
human rights.

16.7 Example:
The Commission’s ongoing efforts to end human rights violations in
Australia’s immigration detention system

Some of the obstacles faced by the Commission in holding the Australian
Government accountable in respect of its international human rights obligations
are illustrated by the Commission’s repeated efforts to address human
rights violations caused by Australia’s mandatory immigration detention
system.
The Commission has investigated numerous complaints of human rights breaches
in immigration detention over the past 13
years.^[180] In cases where the
Commission has found there was a breach, a report has been tabled in federal
Parliament setting out recommendations for redress. While the Australian
Government is required to table these reports, it is not required to respond. In
many cases, the Commission’s recommendations have been ignored.
More than a decade ago, the Commission conducted an inquiry into the
mandatory detention system, which resulted in the 1998 report, Those
who’ve come across the seas: Detention of unauthorised
arrivals.^[181] The Commission
found that Australia’s mandatory detention policy violated international
human rights standards, including the right not to be subjected to arbitrary
detention. The Commission made 94 recommendations about the use of, and
conditions in, detention and put forward an alternative detention model and a
range of community release options.
The Australian Government asserted that the mandatory detention policy did
not breach Australia’s human rights obligations, and did not consider
implementing the community release options. The government rejected the
Commission’s recommendations that the lawfulness of immigration detention,
as interpreted under international law, be subject to judicial review.
In 2004, the Commission released the report of its national inquiry into
children in immigration detention, A last
resort?.^[182] The inquiry found that Australia’s mandatory detention laws and practices
resulted in numerous and repeated breaches of the CRC. In 2005, the Migration
Act was amended to affirm the principle that children should only be detained as
a measure of last resort, and children were gradually released from immigration
detention centres (IDCs). However, while children are no longer held in IDCs,
some children are still held in other closed immigration detention facilities,
both on the mainland and on Christmas Island.
While there have been some key improvements to Australia’s immigration
detention system over the past few years, many of the Commission’s major
concerns remain, despite more than a decade of efforts to reform the system.
Throughout this decade many men, women and children have been detained for
prolonged periods of time. Australia’s mandatory detention law remains in
place; the lawfulness of immigration detention is not subject to judicial
review; there are no legislated standards for conditions in detention; and
offshore processing of asylum seekers continues on Christmas
Island.^[183] The UN treaty bodies
have made numerous criticisms about Australia’s mandatory detention system
and have urged its repeal.^[184]

17 Anti-discrimination
laws do not protect all human rights or prohibit all types of
discrimination

Australia has four federal anti-discrimination laws, which provide some
important protections against discrimination on the basis of race, sex,
disability and age.^[185]
However, as discussed in further detail in section 21 of this submission,
there are a number of significant limitations and deficiencies with these laws.
They fail to offer comprehensive protection against discrimination on the
grounds of race, sex, disability and age; they do not cover discrimination on a
broad range of other grounds; and they contain various inconsistencies.
In practice, this means that people are often left without an effective
remedy for a breach of their right to equality and
non-discrimination.

17.1 Example:
Discrimination on the grounds of criminal record

Unlike equivalent legislation in the states and territories, federal
anti-discrimination laws do not provide protection against discrimination on the
ground of a person’s criminal
record.^[186] While the Commission
can accept a complaint on this ground under the HREOC Act, it cannot provide an
enforceable remedy.
The Commission has received numerous complaints over the years from people
who have been refused employment on the basis of a prior criminal record, which
is not directly relevant to the job the person is applying for.
For example, in 1991, a man was convicted for receiving stolen goods. He
completed 200 hours of community service at a police academy in South Australia
(SA), after which he was employed by the SA Police as a grounds person at the
academy.
Ten years after his conviction, his position was made redundant and he was
moved to a security guard position with the Police Security Services Branch,
where he worked for three months. However, prior to being formally employed in
the role, the SA Police undertook a criminal record check, as part of its
standard employment procedures. This check revealed his 1991 conviction and he
was advised that he would not be offered the security guard position because of
that criminal record.
The man lodged a complaint with the Commission. The Commission found that he
had been discriminated against on the basis of his criminal record. There was
enough evidence available to the SA Police to demonstrate that the man possessed
the integrity and character required for the job, notwithstanding his criminal
record. In particular, he had provided ten years of service to the SA Police,
during which his employment and integrity had been highly praised.
The Commission made recommendations for remedies including compensation, but
these recommendations were not enforceable under Australian law. To date, the SA
Police has not informed the Commission that it has complied with any of the
recommendations.^[187]

18 Resources
for human rights education are seriously inadequate

One of the major gaps in the current protection of human rights in Australia
is that many people are not aware of what their human rights are, and what
courses of action are available to them if their rights are
breached.^[188] There is a need for
significantly enhanced human rights education in the community, in the public
sector, and in schools and universities.
The need for enhanced human rights education was highlighted by young people
in various parts of Australia during Commission workshops aimed at encouraging
broad public participation in the National Human Rights Consultation process.
(These workshops and the views expressed by young people are discussed further
in Appendix 5 and Appendix 6.)
The Commission has statutory functions relating to human rights education in
Australia. These include promoting understanding and public discussion of human
rights, and undertaking research and educational programs for the purpose of
promoting human rights.^[189] Over
the years the Commission has developed a wide range of education resources and
programs.
However, the Commission cannot continue to produce an adequate range of
materials or adequately distribute them under its current budget. This issue is
discussed further in section 24.8 of this submission.

PART
C: How could Australia better protect and promote human
rights?

19 Introduction:
five major reforms to improve human rights protection in Australia

There are a number of ways that human rights could be better promoted and
protected in Australia. Over the past 23 years, the Commission has recommended
numerous measures for improving human rights protections for specific,
vulnerable groups. Some of the major ongoing human rights issues are set out in
Appendix 2 to this submission.
It is clear from the Commission’s years of experience that, to prevent
human rights problems from arising, Australia needs to develop a culture of
greater respect for human rights.
A stronger human rights culture in Australia is unlikely to be achieved
through ad hoc, piecemeal reform. For all people in Australia to live in a
community that is truly inclusive and respectful of their rights, no matter who
they are or what their circumstances, there needs to be overarching, systemic
changes to the way government, at all levels, considers the human rights of all
people. There also needs to be greater awareness in the general community of the
human rights to which we are all entitled and the responsibilities that come
with them.
The Commission believes that a combination of the following five major
reforms would help to build a stronger culture of respect for human rights in
Australia:
- a national Human Rights Act
- stronger statutory protection of equality and non-discrimination
- a referendum to amend the Australian Constitution so that it recognises
  Aboriginal and Torres Strait Islander peoples; removes the existing racially
  discriminatory provisions; and protects equality for all people
- a significantly enhanced national program of human rights education
- expanded functions and better resourcing for the Commission, as
  Australia’s national human rights institution.
Any one of these reforms would, in some measure, improve the protection and
promotion of human rights in Australia. However, the Commission believes that
each of these reforms would complement and strengthen each other. Together they
would work to help Australia better live up to its international promises to
protect human rights.
This part of the Commission’s submission explains each one of these
five major reforms in further detail, with specific emphasis on the
Commission’s recommendation for a Human Rights Act for
Australia.

20 A
Human Rights Act for Australia

The Commission appreciates that the question of how Australia can best
protect human rights, and whether Australia should have a Human Rights Act is
the subject of much debate.
Some believe that only a constitutionally entrenched bill of rights can
properly protect human rights in Australia. Others believe that our current
democratic system already properly protects human rights and any interference
with that system could undermine our democracy.
At the end of this section (in section 20.16) the Commission specifically
responds to each of the primary arguments against a Human Rights Act.
In the main body of this section, the Commission explains why it believes
that a Human Rights Act could make a real difference to human rights protection
in Australia, and how it could be the catalyst for creating a stronger human
rights culture in the Australian Government and in the Australian
community.
In particular, the Commission explains how a Human Rights Act could improve
the enjoyment, protection and promotion of human rights by simultaneously
strengthening Australia’s human rights culture and Australia’s
democratic system of government.

20.1 Australia
should have a Human Rights Act

The Commission believes that a Human Rights Act would help to build a
culture that respects the human rights of all people in Australia, no matter who
they are.
When Australia signed up to the major international human rights treaties,
it made a commitment to ensure that Australia’s government would always
keep in mind the basic rights of every person – whether they were part of
the majority or a minority in the community.
If the federal Parliament passed a Human Rights Act, it would be a major
step towards fulfilling Australia’s commitment to protecting human
rights.
A Human Rights Act would be Parliament’s clear statement of the
fundamental rights and values to which Australia is committed. The Australian
Government has already made that statement to the international community; it is
now time to make it to the Australian community.
A Human Rights Act would set out the human rights that all people in
Australia are entitled to have protected, and explain that we are all
responsible for respecting the rights of others.
In this way, a Human Rights Act would be an extremely powerful tool for
furthering the type of human rights dialogue and education that occurred during
this Consultation process.
A Human Rights Act would also be Parliament’s commitment to a
democratic system that provides transparency and accountability in all
decision-making which might impact on human rights.
Thus, a Human Rights Act could help to create a stronger human rights
culture throughout government and the community by:
- requiring government officials to consider human rights at the early stages
  of the development of law and policy (which should help prevent human rights
  problems from arising)
- requiring Parliament to consider whether new legislation protects human
  rights, and if not, publicly explain any decision to create or maintain such
  legislation (which should help improve transparency and accountability in policy
  and law-making processes)
- requiring courts to interpret laws consistently with human rights and
  providing remedies where appropriate (while not giving courts the power to
  strike down legislation – Parliament would have the final say)
- requiring public authorities to consider and respect the human rights of the
  individuals with whom they are dealing when making decisions (which should
  discourage ‘one-size-fits all’ policies and encourage solutions
  appropriate to the diversity of the Australian community)
- providing solutions and remedies in the event that a public authority
  breaches human rights without legal authority (which might include an accessible
  alternative dispute resolution process, with the option to go to court if a
  complaint cannot be resolved)
- clearly setting out human rights and the system for protecting them (which
  means that people in Australia would be better informed about government
  decisions that affect their human rights, improving their capacity to actively
  participate in the governmental processes that impact upon them, thus enhancing
  our democracy).

Recommendation 2: The Australian
Parliament should enact a national Human Rights Act.

20.2 A
national Human Rights Act should be based on those in the UK, New Zealand,
Victoria and the ACT

The Commission believes that an adaptation of the model of human rights
legislation operating in the UK, New Zealand, Victoria and the ACT is the most
appropriate form of human rights protection for Australia at this
time.

(a) Why statutory human rights protection?

The Commission recognises that some people argue that Australia should have
a constitutionally entrenched bill of rights.
However, this option has been excluded from the Consultation
Committee’s terms of reference. In any event, the Commission is persuaded
that a statutory form of protection is the most appropriate for Australia at
this time, for reasons outlined below.
The Commission also notes that the Hon Michael McHugh recently suggested a
model of statutory protection based on the Canadian Bill of
Rights.^[190] This model would require federal laws to be read subject to the Human Rights Act
and allow courts to hold that state and territory laws are invalid if they are
inconsistent with it.^[191] The
model would, however, allow federal Parliament to expressly declare that a law
could operate notwithstanding the Human Rights Act. Parliament could do this at
the time the law was first introduced or in response to a court decision with
which it disagreed.
However, the Commission recognises that there is some community concern
about the potential role of the courts under a Human Rights Act or a
constitutionally entrenched bill of rights. It may be that this concern will
abate as Australia develops an improved human rights culture. Should it do so,
the question of comprehensive constitutional protection of human rights could
appropriately be revisited.
The Commission also recognises that many of the reforms to public
decision-making processes that it proposes could be implemented independently of
a Human Rights Act.
However, piecemeal reform risks replicating the current gaps in
Australia’s human rights protections. Further, a Human Rights Act would
have the overarching benefit of being both a clear statement of human rights all
people in Australia are entitled to, as well as a guide to the steps that should
be taken to ensure the protection and promotion of these rights.
Therefore, the Commission believes that Australia should have a Human Rights
Act based on the model described below, because:
- This model embeds human rights considerations into all stages –
  including very early stages – of public decision-making. This should help
  prevent human rights problems from occurring.
- This model creates the type of accountability and transparency in
  decision-making which would strengthen Australia’s democratic system of
  government and build upon our system of checks and balances.
- This model preserves parliamentary supremacy. It would be a positive action
  taken by Parliament to express its view on how human rights should be protected,
  and to create the system it believes would achieve that purpose.
- This model provides a clear statement to all people in Australia, and around
  the world, that Australia intends to live up to its international human rights
  commitments.
- There is precedent for this model in New Zealand, the UK, Victoria and the
  ACT, and the Consultation Committees in WA and Tasmania have both supported this
  model.

(b) The main features of the Human Rights Act
proposed by the Commission

The Human Rights Act model proposed by the Commission would:
- protect all people within Australia’s territory and all people subject
  to Australia’s jurisdiction
- protect rights recognised in international human rights treaties to which
  Australia is a party
- allow rights to be limited and balanced (with the exception of absolute
  rights) in accordance with strict criteria
- require the government to consider human rights at the early stages of the
  development of law and policy
- require parliamentary scrutiny of new legislation to ensure that it is
  compatible with human rights
- require legislation to be interpreted consistently with human rights
- require Parliament to be notified, and to publicly respond, if a law is
  found to be inconsistent with human rights
- require public authorities to act in a way that is compatible with human
  rights and to give proper consideration to human rights in decision-making
- provide for an effective remedy when a public authority breaches human
  rights.
The following sections describe each of these features in more detail and
explain why they are important for the creation of a strong human rights culture
in the Australian Government and the Australian community.

20.3 A
Human Rights Act should protect everyone in Australia, without
discrimination

Since human rights apply to all people without discrimination, it is
important to enact a Human Rights Act that protects all people in
Australia’s territory and all people subject to Australia’s
jurisdiction without discrimination.
A Human Rights Act would ideally create a uniform system of human rights
protection across Australia. However, Australia’s federal structure may
constrain the achievement of this goal.

(a) A Human Rights Act should protect every person
in Australia’s territory and jurisdiction

The Commission is aware of the concern that a Human Rights Act could have
the effect of granting extra rights to ‘minorities’ at the expense
of the ‘majority’.
This is why it is important to reinforce that a Human Rights Act should
protect all people within Australia’s territory and all people subject to
Australia’s jurisdiction without
discrimination.^[192]
Overwhelmingly, a Human Rights Act will benefit ordinary people, in their
everyday interaction with government, by creating a more transparent and
accountable decision-making system. While some individuals and groups may make
more use of the legislation than others, this would be because those individuals
and groups are in greater need of human rights protection than others –
take, for example, Indigenous peoples who suffer more disadvantage than many
other groups in Australia.
A Human Rights Act should protect individuals and groups, depending on the
nature of the rights
included.^[193]
A Human Rights Act should also protect the rights of citizens and
non-citizens. However it would need to recognise that some rights, such as the
right to vote, apply only to
citizens.^[194]
A Human Rights Act should not confer human rights on
corporations.

(b) Ideally, Australia should have uniform
protection of human rights

Under international human rights law, the
federal government has ultimate responsibility for ensuring that human rights
protections extend throughout the
country.^[195]
Ideally, human rights should be consistently protected by all federal, state
and territory governments in Australia.
As illustrated by the different discrimination laws in Australia (see
section 21), it is very difficult for people to understand what their rights are
and how they are protected if they are protected in different ways by the
federal, state and territory governments. Further, many of the human rights
issues that touch people’s everyday lives are affected by state and
territory laws and policy.
However, there are practical and political difficulties to achieving uniform
human rights protection across Australia.
It is constitutionally possible for a national Human Rights Act to bind the
states to some extent.
Pursuant to the external affairs
power,^[196] federal Parliament
could introduce a national system of human rights protection that binds federal,
state and territory governments. It is also constitutionally possible that a
national Human Rights Act may render inconsistent state laws
inoperative.^[197]
However, it might not be possible to extend all elements of a national Human
Rights Act to the states, as the Australian Government does not have the power
to make laws that would undermine the capacity of the states to
function.^[198]
Recognising this limitation, the federal government could introduce a Human
Rights Act that binds the states to the extent constitutionally possible. The
Australian Government could then encourage the states to enact their own
legislation in relation to the outstanding elements (for example, those
provisions about parliamentary processes).
An alternative approach would be to limit the operation of a national Human
Rights Act to federal laws and public authorities and encourage the states and
territories to enter into co-operative arrangements to implement Human Rights
Acts throughout Australia.
There is some prospect of success with this approach. The ACT and Victoria
have already introduced specific laws to protect human rights. Western Australia
and Tasmania have conducted inquiries into human rights protections which
recommended that these states introduce human rights
acts.^[199]
In the meantime, if a national Human Rights Act does in fact apply only to
federal laws and public authorities, it should clearly express an intention to
operate alongside state and territory human rights legislation. A similar
approach is taken in federal discrimination laws to preserve the operation of
state and territory anti-discrimination
laws.^[200]
As the Commission’s expertise lies in the federal jurisdiction, this
submission focuses on the potential beneficial impact of a national Human Rights
Act upon federal laws and policies, and the actions of federal public
authorities. However, the Commission recommends that the Consultation Committee
explore all options for uniform human rights protection across
Australia.

Recommendation 3: A Human Rights Act should
protect the human rights of all people within Australia’s territory and
all people subject to Australia’s jurisdiction.

Recommendation 4: The Australian Government should engage with the
states and territories with the objective of creating a uniform system of human
rights protection across Australia.

20.4 A
Human Rights Act should have a principled and inclusive preamble

While it may have limited legal significance, the preamble to a Human Rights
Act could send a strong symbolic message to the Australian community about the
importance of human rights.
A preamble to a Human Rights Act could articulate, in plain and simple
language, the importance of human rights for an inclusive, cohesive and
democratic society. It could set out the fundamental principles and values that
underpin the Act. And it could affirm that all people in Australia are entitled
to enjoy human rights, without discrimination.
A preamble should also specifically recognise the unique status of
Indigenous peoples as first peoples and acknowledge their human
rights.^[201]
By recognising Indigenous peoples in the preamble to a Human Rights Act, the
Australian Government would demonstrate a clear commitment to protecting their
human rights. This is appropriate given the significant and sustained breaches
of human rights that Indigenous peoples face.
A preamble should also highlight that it is the responsibility of government
to protect, respect and promote human rights, and the responsibility of every
person in Australia to respect the human rights of
others.^[202]

Recommendation
5: A Human Rights Act should include a preamble that:

specifically recognises the human rights of Indigenous peoples
highlights that it is the responsibility of government to protect, respect
and promote human rights, and the responsibility of every person in Australia to
respect the human rights of others.

20.5 A
Human Rights Act should protect civil, political, economic, social and cultural
rights

Since human rights are universal, indivisible and interdependent, it is
important for a Human Rights Act to protect all of the fundamental human rights
in the human rights treaties which bind Australia.
In particular, and at a minimum, a Human Rights Act should explicitly
recognise and protect the civil, political, economic, social and cultural rights
in the ICCPR and ICESCR.
To take advantage of developments in international human rights law and
ensure the protection of vulnerable groups, a Human Rights Act should include a
mechanism to permit the use of more specific treaties and declarations to
interpret and apply the basic civil, political, economic, social and cultural
rights to those groups. This would include the treaties and declarations
focussing on women, children, people with disability, different racial groups
and Indigenous peoples.
Further, vulnerable groups (including Indigenous peoples) should be
explicitly consulted in the drafting of a Human Rights Act.
Irrespective of which rights are explicitly mentioned in a Human Rights Act,
it should be made very clear that those rights are not exhaustive.
Further, the legislation should require periodic review of a Human Rights
Act, including review of whether the rights set out in the Act should be
expanded. This would make sure that the document stays current and relevant to
the community’s needs (see section 20.14).

(a) A Human Rights Act
should include economic, social and cultural rights

The Commission believes that a national Human Rights Act should explicitly
include economic, social and cultural rights, despite the fact that human rights
legislation in many other jurisdictions predominately protects civil and
political rights.
There are several reasons for this view.
First, human rights are universal, interdependent and indivisible. This
means that the full enjoyment of civil and political rights may be hampered if
economic, social and cultural rights are not also protected (see section
5.3).
Secondly, some of the most pressing human rights concerns facing people in
Australia involve economic, social and cultural rights. If economic, social and
cultural rights were included in a Human Rights Act, those concerns could be
better addressed.
Thirdly, the omission of economic, social and cultural rights from a Human
Rights Act would reinforce a commonly-held misconception that these rights are
somehow less important than civil and political rights. Including those rights
in a Human Rights Act would help guide and educate decision-makers on the
significance of these rights to the lives of people in Australia.
Finally, the independent human rights consultation committees in the ACT,
Tasmania and Western Australia all recommended that at least some economic,
social and cultural rights be included in state level human rights
acts.^[203] The UK Human Rights Act
includes the right to education, and the UK Joint Committee on Human Rights has
suggested that further economic, social and cultural rights should also be
protected.^[204]

(i) Economic, social and
cultural rights should be explicitly set out in a Human Rights Act

Some people argue that it is possible to protect economic, social and
cultural rights without explicitly listing them in a Human Rights Act. This is
because they can be protected indirectly through the interpretation of civil and
political rights.
For example, civil and political rights such as the right to equality and
the right to life, liberty and security of the person have been used in Canada
to protect key economic, social and cultural rights. This includes the right to
the highest attainable standard of physical and mental
health,^[205] and the right to
adequate housing.^[206]
However, the Commission believes that economic, social and cultural rights
should be explicitly set out in a national Human Rights Act. The Commission
shares the concern of the Western Australian Human Rights Act Consultation
Committee that an indirect approach to protecting economic, social and cultural
rights ‘would, at best, result in ad hoc and limited protection for some
of these ��ٲ�’.^[207]
The WA Committee further stated that it is ‘undesirable that the
protection of ESC rights should depend upon the occurrence of a breach of a
civil and political right in a context which also involves the enjoyment of an
ESC right’.^[208]

(ii) Courts would not obtain power to make decisions
about policy or resource allocation

Some people are concerned that explicit protection of economic, social and
cultural rights in a Human Rights Act might transfer power over resource
allocation and policy-making from Parliament to the courts.
The Commission believes that a Human Rights Act can be drafted to ensure
that courts take the principle of ‘p��ǲ�� realisation’ into
account when making decisions in relation to economic, social and cultural
rights.
For example, the South African Constitution explicitly protects economic,
social and cultural rights. In South Africa, the government is obliged to
‘take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation’ of the rights to health
care services, sufficient food and water, social security and adequate
housing.^[209]
In considering these rights, South African courts do not make policy.
Instead, the role of the courts is limited to assessing whether the measures
taken by the government are reasonable. The courts:

will not
enquire whether other more desirable or favourable measures could have been
adopted, or whether public money could have been better spent. ... It is
necessary to recognise that a wide range of possible measures could be adopted
by the state to meet its obligations. Many of these would meet the requirement
of reasonableness.^[210]
A Human Rights Act could be similarly drafted to avoid requiring courts to
make judgments that should properly be left to government. In particular, the
principle of ‘p��ǲ�� realisation’ should be a relevant factor
when assessing the reasonableness of limitations upon economic, social and
cultural rights. (For further discussion on a ‘reasonable limits’
provision in a Human Rights Act, see section 20.6 below.)
Further, it may be that different enforcement mechanisms are appropriate for
civil and political rights on the one hand, and economic, social and cultural
rights on the other. (See section 20.12 below.) However, this does not mean that
economic, social and cultural rights are incapable of enforcement or that they
should be excluded from a Human Rights Act.
In any event, under the Human Rights Act model proposed by the Commission,
federal Parliament would always have the final say with respect to resource
allocation (regardless of the nature of the right at stake).

(iii) A Human Rights Act
could initially set out core economic, social and cultural rights

In the event that the Consultation Committee is unsure about whether to
recommend inclusion of all economic, social and cultural rights in a Human
Rights Act, the Commission recommends against an ‘all or nothing
approach’. In those circumstances, the Commission encourages the
Consultation Committee to consider a minimum core of economic, social and
cultural rights for inclusion in a Human Rights Act.
For example, the UK Joint Committee on Human Rights recommended that a UK
Bill of Rights should contain rights to health, education, housing and an
adequate standard of living. Inclusion of these core rights was recommended
because they ‘touch the substance of people’s everyday
��’.^[211] The Joint
Committee further considered that this list should be reviewed after a period to
determine if further economic, social and cultural rights should be added.
In terms of which rights to include in a Human Rights Act, the Commission is
confident that people in Australia will tell the Consultation Committee about
the rights that ‘touch the substance’ of their everyday lives. In
the Commission’s experience, this includes fundamental economic, social
and cultural rights such as the right to an adequate standard of living,
education, housing and health. At the very least, such core economic, social and
cultural rights should be included in a Human Rights Act.
If only a limited number of economic, social and cultural rights are
protected initially, a Human Rights Act should be reviewed periodically to
assess of whether further rights should be included (see section
20.14).

(b) A Human Rights Act
should include mechanisms to incorporate the rights of specific groups in
Australia

As a statement of rights that all people in Australia are entitled to enjoy,
a Human Rights Act might initially include human rights sourced in the ICCPR and
ICESCR. These rights are typically expressed in general language, applying to
everyone.^[212]
Australia has also committed to international treaties and declarations
which protect the rights of women, children, people with disability, people of
different races and Indigenous
peoples.^[213]
These specific instruments often articulate the way in which general human
rights apply to people whose human rights are most at risk. They build upon the
general rights set out in the ICCPR and the ICESCR. For example, the CEDAW
builds upon the right to equality and non-discrimination as it applies to women
and the circumstances they face.
The Commission understands the concern that specific issues affecting
certain groups could be overlooked if a Human Rights Act does not include rights
as expressed in these instruments.
One way of addressing this is to expressly permit courts and decision-makers
to consider international law, including human rights materials that elaborate
the rights of specific groups of people, when interpreting the general civil,
political, economic, social and cultural rights set out in the Human Rights
Act.^[214]
A Human Rights Act need not attempt to exhaustively list which materials the
courts and decision-makers can consider. It could, however, draw attention to
human rights instruments that are of particular importance to people in
Australia.
This should include:
- international human rights treaties to which Australia is a party
- international human rights declarations that Australia supports, such as the
  Declaration on the Rights of Indigenous Peoples
- general comments and views of the UN treaty bodies
- judgments of domestic, foreign and international courts and tribunals
- customary international
  law.^[215]

This would help ensure that the development of Australian law reflects
international human rights law. It would also encourage courts and
decision-makers to interpret and apply the general human rights set out in a
Human Rights Act in a way that responds to the circumstances of certain
vulnerable groups.
For example, Indigenous peoples would particularly benefit from a Human
Rights Act that includes general rights of equality before the law,
non-discrimination, economic, social and cultural rights and the right to
self-determination. In applying general human rights to Indigenous peoples,
courts and decision-makers should be guided by the ‘minimum
standards’ affirmed by the Declaration on the Rights of Indigenous
Peoples and the protections against racial discrimination contained in
the CERD.

(i) Marginalised groups should be consulted in drafting
a Human Rights Act

The Commission recommends that special effort should be made to ensure that
Indigenous peoples, and members of other marginalised groups, are full and
effective participants in the development of a Human Rights Act. This would
provide an opportunity for people from vulnerable groups to articulate whether
specific protections should be included in a Human Rights Act, or whether they
are satisfied that general protections are sufficient to protect their
rights.^[216]
If a Human Rights Act initially only includes rights expressed in general
terms, a periodic review should include consideration of whether further,
specific protections for certain groups are necessary (see section 20.14).

(c) The human rights set
out in a Human Rights Act should not be exhaustive

The Commission understands the concern that setting out rights in a Human
Rights Act could cause rights to be limited. However, a Human Rights Act could
be amended by federal Parliament if necessary. For instance, if Australia
committed to the protection of new rights, these could readily be incorporated
into a Human Rights Act.
Further, a Human Rights Act should not be exhaustive of the rights that
people may have under domestic or international law. For example, the Victorian
Charter provides:

A right or freedom not included in this Charter
that arises or is recognised under any other law (including international law,
the common law, the Constitution of the Commonwealth and a law of the
Commonwealth) must not be taken to be abrogated or limited only because the
right or freedom is not included in this Charter or is only partly
included.^[217]
A similar provision should be included in a national Human Rights Act.

Recommendation 6: A Human Rights Act should protect civil,
political, economic, social and cultural rights.

Recommendation 7: A Human Rights Act should contain an interpretive
provision that expressly permits courts and other decision-makers to consider
international and comparative legal materials when applying the Human Rights
Act.

Recommendation 8: Marginalised groups, including Indigenous peoples,
should be specifically consulted in the development of a Human Rights Act.

Recommendation 9: The human rights set out in a Human Rights Act
should not be exhaustive.

20.6 A
Human Rights Act should allow justifiable limitations on rights

Most human rights are not absolute and circumstances may require that
different rights be balanced. For example, it may be necessary to balance the
right to freedom of expression with the right to privacy. In extraordinary
circumstances, it may also be permissible to suspend or restrict certain
rights.
A Human Rights Act should therefore provide clear guidance as to what rights
can be limited, when and how.

(a) A
Human Rights Act should include strict criteria and processes for limiting
rights

A Human Rights Act
should set out strict criteria for the limitation of human rights, taking into
account factors such as the nature of the right and considerations of
reasonableness and proportionality.
A Human Rights Act should also require Parliament to publicly explain how
any limitations it intends to impose upon human rights can be justified in a
free and democratic society. (See section 20.8.)
The Victorian and ACT models provide a useful starting point for developing
a ‘reasonable limits’ provision in a national Human Rights Act.
Section 7(2) of the Victorian Charter provides that:

A human
right may be subject under law only to such reasonable limits as can be
demonstrably justified in a free and democratic society based on human dignity,
equality and freedom, and taking into account all relevant factors including
–

(a) the nature of the right; and

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose
that the limitation seeks to achieve.

Section 28 of the ACT Human Rights Act contains a similar reasonable limits
provision.^[218] Both the ACT and
Victorian Acts also subject certain rights to specific internal
limitations.^[219]
According to the recent Victorian decision in Kracke, the requirement
that any limitation upon a human right be both ‘reasonable’ and
‘demonstrably justified’ imposes a ‘stringent standard of
justification’ on the
government.^[220]

(b) A Human Rights Act should distinguish between
rights that can and cannot be limited

A Human Rights Act should distinguish between rights that can be limited and
rights that are absolute under international law.
International human rights treaties include certain rights with internal
limitations. For example, article 19 of the ICCPR protects the right to freedom
of expression. However, this right:
carries with it special duties
and responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary:
- (a) For respect of the rights or reputations of others;
- (b) For the protection of national security or of public order (ordre
  public), or of public health or
  morals.^[221]
Other human rights are so fundamental that they should never be suspended or
‘derogated’ from, even in times of public emergency which threaten
the life of the nation. For example, the ICCPR provides that the following
rights are
‘n�ǲ�-��ǲ��’:^[222]
- the right to life
- freedom of thought, conscience and religion
- freedom from torture or cruel, inhuman or degrading treatment or punishment
- right to recognition everywhere as a person before the law
- the prohibition on the retrospective operation of criminal laws
- the right not to be imprisoned merely on the ground of inability to fulfil a
  contractual obligation
- the right not to be held in slavery or servitude.
Some of those ‘non-derogable’ rights have internal
limitations.^[223] For example,
article 18(3) of the ICCPR provides:

[f]reedom to manifest one's
religion or beliefs may be subject only to such limitations as are prescribed by
law and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others.
However, there are other rights which can never be limited, qualified or
derogated from. This includes the prohibition on torture, which is regarded as
an ‘absolute’ right.
A Human Rights Act could specifically exempt absolute rights from the
operation of a reasonable limits provision. This would clearly signal to
decision-makers that some rights are so fundamental that they should never be
limited.
Alternatively, a Human Rights Act could rely upon judicial interpretation of
the reasonable limits provision, with the expectation that the provision would
not apply to rights that are absolute under international
law.^[224] However, this second
approach would not explicitly recognise the special nature of absolute rights.
It would also suggest that absolute rights may be limited, rather than
recognising that certain rights are
non-negotiable.^[225]

(c) Applying a reasonable limits clause

Applying a ‘reasonable limits’ clause would not be a novel role
for Australian courts, which already assess the limitations placed on rights in
specific contexts.^[226] This is
also a role undertaken by courts in other
jurisdictions.^[227]
Further, Australian courts already apply a proportionality analysis in
relation to the constitutionally implied ‘freedom of political
communication’ and the guarantee that inter-state trade and commerce shall
be absolutely free.^[228]
Finally, it is important to remember that courts would be required to
interpret legislation in a way that is consistent with the purpose of the
legislation, and that courts would not be able to invalidate laws under a Human
Rights Act.

Recommendation 10: A Human Rights Act should
include a ‘reasonable limits’ provision. Human rights protected by a
Human Rights Act should only be subject to such reasonable limits, prescribed by
law, as can be demonstrably justified in a free and democratic society. Absolute
rights should be exempt from the operation of this provision.

20.7 A
Human Rights Act should ensure human rights are considered when law and policy
is developed

The Commission believes that many human rights problems could be avoided if
human rights were actively considered in the earliest stages of law- and
policy-making. In other words, human rights breaches may not occur if policy and
law makers were required to consider the potential human rights impact of
policies and laws before they finalised them.
The Commission therefore recommends that a Human Rights Act should require
that any policy submission put to federal Cabinet (including proposals for new
laws, amendments and policies) should be accompanied by a human rights impact
statement.
A human rights impact statement should include an assessment of whether a
proposed law or policy is consistent with the human rights set out in the Human
Rights Act. It should also draw Cabinet’s attention to any proposed
limitations on rights and justify those limitations in accordance with any
reasonable limits provision in the Human Rights Act.
Through these human rights impact statements, Cabinet would be alerted to
the potential human rights impact of proposed laws and policies and would be in
a better position to consider human rights in its deliberations.
The Australian Government should also set out these procedures in the
Cabinet Handbook to provide clear direction to ministers and departments.
Further, the Commonwealth Legislation Handbook should explicitly require
ministers and their departments to consider the human rights set out in the
Human Rights Act when developing new
laws.^[229]
Example: How could a Human Rights Act make a difference?

If human rights were taken into account during the development of
the Northern Territory Emergency Response, the government may have implemented
measures to protect women and children that did not discriminate on the basis of
race. The government may have respected the right of Indigenous peoples to
participate in decision-making in matters that affect their rights. This could
have led to a partnership approach to policy development.

Recommendation 11: Any policy submission put to federal Cabinet
(including proposals for new laws, amendments and policies) should be
accompanied by a human rights impact statement.

20.8 A
Human Rights Act should ensure human rights are considered before new laws are
passed

Sometimes, especially in times of perceived emergency or when acting under
significant time pressure, Parliament disregards or fails to fully consider the
human rights implications of new laws. This can result in the passing of laws
that have serious human rights implications – for example
counter-terrorism laws.
A Human Rights Act could help prevent human rights breaches by ensuring that
the human rights implications of new laws are openly and transparently assessed
and debated, in an informed manner, before the laws are enacted.
Pre-legislative human rights scrutiny should require Members of Parliament
to consider how legislation may affect human rights before the proposed
legislation is put to a vote. The human rights implications of any proposed
measure should be clearly identified. They could then be debated openly in
Parliament. And in the event that the executive or Parliament was intending to
limit the enjoyment of any human rights, this should be explicitly identified
and publicly justified and debated.
Pre-legislative scrutiny would also ensure that courts are better informed
of legislative intent.
Thus, pre-legislative scrutiny processes could increase accountability and
transparency – the public would be put on notice when their elected
representatives were considering measures that would limit human rights.
Pre-legislative scrutiny would also mean that all Members of Parliament,
including ministers, would have to become familiar with the potential impact of
new laws and policies on human rights. It would help create an awareness of, and
a culture of respect for, human rights within Parliament and across government
departments.
In the Commission’s view, a Human Rights Act should include the
following pre-legislative processes:
- every bill introduced into Parliament should be accompanied by a statement
  of human rights compatibility
- every bill should be scrutinised by a specialist parliamentary Human Rights
  Committee
- in the event that a bill bypasses those processes, the law should be
  automatically reviewed after a fixed period of time.
Example: How could a Human Rights Act make a
difference?

If a Human Rights Act had been in place in the past,
with stronger pre-legislative scrutiny processes, Parliament would have openly
debated whether:

a law requiring the mandatory detention of all ‘unlawful
non-citizens’ could be justified

a law permitting the indefinite detention of children and young people in
immigration detention could be justified

changes to workplace relations, taxation or social security laws adequately
took into account the particular needs of women

counter-terrorism laws allowing detention without charge impacted
inappropriately on the right to liberty and freedom from arbitrary
detention.

A Human Rights Act would have required Parliament to
justify any limitations to human rights imposed by such legislation, and
publicly explain why such limitations were reasonable. This would have stirred
active debate in Parliament and the media.

(a) A
statement of human rights compatibility should accompany bills and
regulations

A Human Rights Act could require the relevant minister or Member of
Parliament (in the case of a private member’s bill) to prepare a human
rights compatibility statement for each new bill. This statement would accompany
the bill when it was introduced into Parliament.
The Legislative Instruments Act 2003 (Cth) could also require that a
human rights compatibility statement accompany any new or amended regulation
tabled in Parliament.
The Member of Parliament who introduced the bill or regulation into
Parliament should be required to explain whether or not it is compatible with
human rights. The human rights compatibility statement should address, amongst
other things, any limitations on human rights that the proposed legislation or
regulation would impose. And if there were such limitations, they should be
justified in accordance with the reasonable limits provision in the Human Rights
Act.
Example: How could a Human Rights Act make a
difference?

The requirement to table a statement of compatibility in
Parliament could ensure that human rights considerations are an integral part of
the law-making process. For example, the Victorian Privacy Commissioner has
stated that:

The [Victorian] Charter’s presence and the requirement for a statement
of compatibility places a spotlight on privacy and encourages the public sector,
when developing and amending legislation, to turn its mind to broader privacy
rights as well as information privacy protected by the IPA [the Information
Privacy Act 2000]. This in turn encourages the sector to consult with [the
Office of the Victorian Privacy Commissioner] on privacy impacts at an earlier
phase in the legislative
process.^[230]

(b) A parliamentary
Human Rights Committee should examine the human rights implications of all
bills

Currently, the parliamentary committee system is
one of the most important mechanisms for the scrutiny of legislation in
Australia. As discussed above in section 20.8, there is no parliamentary
committee that is specifically charged with considering the human rights
implications of new laws.
A Human Rights Act could require a parliamentary committee to examine new
legislation, and provide advice to Parliament on any human rights implications.
This would reduce the likelihood of the introduction of laws that breach human
rights standards.
The Committee should be permanent and dedicated to conducting human rights
scrutiny. This would produce a better result than simply expanding the role of
existing legislative scrutiny committees, because it would enable the Committee
to build special expertise in analysing human rights issues.
The pre-legislative scrutiny conducted by the Committee should be a public
process, further increasing the transparency of public decision-making. The
Committee’s scrutiny process could also involve engagement with the public
and civil society, improving the ability of people in Australia to become
involved in democratic processes.
Experience in the UK and Victoria has shown that human rights committees
have had an important impact on parliamentary debate. In the UK, it has been
suggested that parliamentary debate on human rights issues is more informed and
sophisticated as a result of the work of the Joint Committee on Human
Rights.^[231] In Victoria, the pre-legislative scrutiny process has resulted in meaningful
exchanges been ministers and the Scrutiny of Acts and Regulations
Committee.^[232]

(i) A
parliamentary Human Rights Committee should have broad functions

The parliamentary Human Rights Committee should consider each bill
introduced into Parliament and inquire into whether the bill is consistent with
the Human Rights Act.
A Human Rights Act would guide the parliamentary committee on the rights
that it should consider when conducting these functions. It would also provide
guidance on how to assess whether a limitation upon a right could be
justified.
The Committee should report its findings to Parliament before Parliament is
due to vote on the bill in question.
The parliamentary Human Rights Committee could also inquire into any
questions referred to it by Parliament.
A parliamentary Human Rights Committee could adopt broad terms of reference
similar to those used in the UK, which enable the UK Committee to consider
‘matters relating to human rights in the United Kingdom (but excluding
consideration of individual
��)’.^[233] The UK
Committee undertakes a wide range of other functions including:
- examining existing laws on an ad hoc basis
- examining pre-legislative documents (for example, Green Papers)
- monitoring implementation of the human rights legislation
- monitoring the work of human rights commissions
- monitoring the government’s human rights
  policy.^[234]

(ii) A parliamentary Human
Rights Committee should be adequately resourced

The Committee should be provided with adequate resources and time to be able
to properly assess the human rights implications of proposed legislation. The
Commission acknowledges that the demands and complexities of legislative
programs can be difficult to manage. However, it is important that every effort
be made to ensure that all aspects of pre-legislative scrutiny are conducted
appropriately.

(iii) Other elements of a Human Rights Act would
complement the work of a parliamentary Human Rights Committee

The Commission acknowledges the view that human rights protections in
Australia could be improved by strengthening parliamentary committees, without a
Human Rights Act.^[235]
However, the Commission believes that parliamentary committees alone cannot
ensure comprehensive human rights
protection.^[236]
A Human Rights Act would provide guidance to the parliamentary committee as
to what rights it should consider, and a framework for assessing proposed
limitations upon rights.
Further, improving the way human rights are considered in the legislative
process is only one of many reforms required to develop a culture of respect for
human rights in government. All levels of government, including government
agencies and other public authorities, need to consider human rights in
decision-making. A Human Rights Act is a comprehensive way of ensuring that this
occurs.

(c) Parliament
should review legislation within a specified time if the pre-legislative
scrutiny process is bypassed

There may be instances where a bill must be expedited through Parliament,
giving insufficient time for full pre-legislative scrutiny. This should not
affect the validity, operation or enforcement of the legislation.
However, if Parliament enacts legislation without following the
pre-legislative scrutiny process, a Human Rights Act should require Parliament
to review that legislation after a fixed period of operation (for example, two
years). This would encourage public debate on the impacts of that legislation
upon human rights.

Recommendation 12: Each bill and
regulation introduced into the federal Parliament should be accompanied by a
human rights compatibility statement.

Recommendation 13: A parliamentary Human Rights Committee should be
established to review the compatibility of each bill with the human rights set
out in the Human Rights Act.

Recommendation 14: Parliament should be required to review legislation
within a specified time if the pre-legislative scrutiny process is bypassed.

20.9 A
Human Rights Act should ensure that courts and public authorities consider human
rights when interpreting and applying laws

In
the Commission’s view, it is important that public authorities consider
how their actions and decisions might impact on a person’s human rights.
It is also appropriate that courts interpret laws consistently with human
rights, provided the purpose of Parliament in enacting legislation is
respected.

(a) Public authorities and courts should interpret
laws consistently with human rights

A Human Rights Act could require courts and public authorities to interpret
federal legislation consistently with the rights protected by the Human Rights
Act.^[237]
The purpose of a provision of this kind would be to make sure that human
rights are considered in decision-making at all levels of government so that
human rights breaches are avoided to the maximum extent possible.
A Human Rights Act which included such an interpretive provision would
‘bring human rights immediately to the mind of everybody involved in
statutory interpretation, whether they be a judicial officer, government
official or legal
��پ��پ��ǲԱ��’.^[238]
A human rights interpretive provision would clarify and strengthen the
established common law presumption that Parliament does not intend to abrogate
fundamental rights and freedoms in the absence of a clear intention to the
contrary.^[239]
This principle of interpretation means that Parliament:

must
squarely confront what it is doing and accept the political cost. Fundamental
rights cannot be overridden by general or ambiguous words. This is because there
is too great a risk that the full implications of their unqualified meaning may
have passed unnoticed in the democratic process. In the absence of express
language or necessary implication to the contrary, the courts therefore presume
that even the most general words were intended to be subject to the basic rights
of the individual.^[240]

A Human Rights Act would strengthen the presumption by supplementing common
law fundamental freedoms with a specific list of rights that reflects
Australia’s international human rights
obligations.^[241]
Possible models for a human rights interpretive provision can be found in
the ACT Human Rights Act, Victorian Charter, NZ Bill of Rights Act and the UK
Human Rights Act.^[242] There is growing body of jurisprudence about how these principles should be
applied.^[243]
As is the case in other jurisdictions, the interpretive provision should
apply to both legislation and
regulations,^[244] regardless of
whether they were introduced before or after the introduction of the Human
Rights Act.^[245]

(b) The purpose of Parliament must be
respected

A human rights interpretive provision would
build upon what Australian courts already do – interpret and apply laws
enacted by Parliament. As Chief Justice Spigelman has observed, significant
areas of the law are now governed entirely by statute. As such, ‘the law
of statutory interpretation has become the most important single aspect of legal
��پ��’.^[246]
However, the Commission acknowledges the concern that a Human Rights Act may
give judges a licence to rewrite legislation and therefore trespass on
parliamentary supremacy.^[247]
To address this concern, a Human Rights Act should provide that legislation
may only be interpreted consistently with human rights, if that meaning is also
consistent with the purpose of the
legislation.^[248] The
pre-legislative scrutiny processes proposed by the Commission would result in
courts being better informed about the actual legislative intent.
An interpretive provision would ensure that courts do not cross the line
between legitimate judicial interpretation and improper judicial
law-making.^[249] It would preserve
the separation of powers and ensure that courts do not tread onto the territory
of legislators.
Eminent constitutional and human rights lawyers have confirmed that there is
no constitutional impediment to introducing such a provision in a national Human
Rights Act.^[250]
This type of provision would not limit Parliament’s power to make
laws, including laws that breach human rights. However, it would require
Parliament to be explicit about its intention to pass a law that is inconsistent
with human rights.
Similarly, if Parliament objected to the way legislation had been
interpreted by a court, Parliament could introduce amendments clarifying the
operation of the law.
In either case, the introduction of a new law or amendments which
deliberately limit the enjoyment of human rights would engage the
pre-legislative scrutiny process described in section 20.8. Parliament would be
required to justify a decision to enact legislative amendments which were
inconsistent with human rights. However, parliamentary supremacy would be
preserved.
Combined with the pre-legislative scrutiny process, the requirement that
Parliament clearly identify its legislative purpose would ensure that the public
is better informed about the actions of its elected representatives.
Example: How could a Human Rights Act make a
difference?

The interpretive provision in a Human Rights Act may
have made a difference to Mr Al-Kateb’s case (see section 11.2). A Human
Rights Act would have required the High Court to explore if there was a
possibility that the Migration Act could be interpreted consistently with the
purpose of the mandatory detention provisions and the human rights of Mr
Al-Kateb. The decision of the minority in Al-Kateb indicates that it was
possible to do so.^[251]

Recommendation 15: All federal legislation should be interpreted in a
way that is consistent with the rights identified in the Human Rights Act, so
far as it is possible to do so consistently with the purpose of that
legislation.

Recommendation 16: The obligation to interpret laws consistently with
human rights should apply to everybody interpreting and applying federal
legislation, including courts and public authorities.

20.10 A
Human Rights Act should ensure that Parliament is notified when laws are
inconsistent with human rights

Under the Human Rights Act model supported by the Commission, courts would
not have the power to invalidate laws that are inconsistent with human rights.
However, this does raise the question of what should happen if a court finds
it impossible to interpret a law consistently with human rights.
Where a statutory provision is inconsistent with a Human Rights Act, it
should continue to operate. This would ensure that parliamentary supremacy is
respected.
However, in the Commission’s view there should be some kind of process
to notify Parliament about the existence of a law that cannot be interpreted in
a way that is consistent with human rights.
The Commission believes that a notification process would encourage the
government to take responsibility for laws that breach human rights, and to look
for ways to achieve its policy objectives without breaching human rights.
If a Human Rights Act included a notification process, it would give
Parliament an opportunity to reconsider the legislation in question and to amend
it to ensure that it is consistent with human rights. Or, alternatively,
Parliament could choose to leave the legislation as it is.
Most importantly, no matter what Parliament decided to do about the law,
there would be greater transparency and accountability. Parliament would be
required to publicly explain its decision. Parliament would ultimately be
accountable to the Australian public for maintaining legislation that is
inconsistent with human rights.

(a) The UK, Victoria and the ACT use
‘declarations of compatibility’

In the UK, Victoria and the ACT, courts can issue a ‘declaration of
incompatibility’ if they are unable to interpret legislation in a way that
is compatible with human
rights.^[252] This declaration is
brought to the attention of Parliament.
A declaration of incompatibility does not affect the ‘validity,
operation or enforcement’ of the provision that is the subject of the
declaration.^[253] However, in
Victoria the minister responsible, and in the ACT the Attorney-General, is
required to respond to a declaration of incompatibility within six
months.^[254] A failure to comply
with this timetable does not affect the validity of the legislation.
So far, no declarations of incompatibility have been made in Victoria or the
ACT.
Seventeen declarations of incompatibility have been made in the
UK.^[255] In all 17 cases,
Parliament has taken legislative action to ensure the laws in question comply
with human rights.^[256]

(b) A Human Rights Act
could use an alternative notification process

Some people have raised doubts about the constitutional validity of a
‘declaration of incompatibility’ in the federal context. In
particular, former High Court Justice the Hon Michael McHugh has raised the
following questions:
- Does the question of whether a law is consistent with the Human Rights Act
  raise a ‘matter’ within the meaning of Ch III of the
  Constitution?
- Is issuing a declaration of incompatibility an exercise of federal judicial
  power? ^[257]

These questions warrant careful consideration in the design of a Human
Rights Act. However, such constitutional concerns could be addressed if courts
were taken out of the notification process.
A roundtable of Australia’s leading constitutional and human rights
lawyers, including the Hon Michael McHugh and the former Chief Justice of the
High Court, Sir Anthony Mason, suggested that one option could be to give an
independent body such as the ��鱨վ a role in the
notification process.
For example, if a court is unable to interpret legislation consistently with
the rights set out in a Human Rights Act, the Commission could notify the
Attorney-General of this finding.
If the Commission were to be given this role, it would not be empowered to
reopen or re-examine the case. Nor would it be empowered to affect the validity
or ongoing operation of the legislation in question in any way. The Commission
could simply draw the Attorney-General’s attention to the fact that a
court had not been able to interpret legislation consistently with human
rights.
The Commission could be empowered to do this of its own motion or at the
request of a party to the proceeding.
The Attorney-General could be required to table the notification in federal
Parliament and the government could be required to respond to the notification
within a defined period (for example, six months).

(c) Subordinate legislation could be invalidated by
courts

Subordinate
legislation is made by the executive, not Parliament, and does not attract the
same level of parliamentary scrutiny as primary legislation. For this reason,
‘[t]here is no threat to parliamentary sovereignty in the judiciary
invalidating delegated legislation that the primary legislator has not
��ܳٳ�ǰ��’.^[258]
Therefore, the Commission recommends that federal courts be empowered to
invalidate subordinate legislation which is inconsistent with the rights
protected by a Human Rights Act, unless the primary Act expressly authorises the
making of subordinate legislation that is inconsistent with human
rights.

Recommendation 17: If a federal court found that it
could not interpret a federal law in a way that was consistent with the rights
identified in the Human Rights Act, a statutory process should apply to bring
this finding to the attention of federal Parliament and require a government
response.

Recommendation 18: A Human Rights Act should give courts the power to
invalidate subordinate legislation.

20.11 A
Human Rights Act should require public authorities to respect human
rights

Public authorities such as Centrelink and Medicare make many of the
day-to-day government decisions which impact on the lives of people in
Australia. A Human Rights Act could help ensure that public authorities respect
human rights when making those decisions.
The Commission believes that imposing obligations on public authorities to
consider and respect human rights would have a strong and positive impact.
Public authorities would become more conscious of the impact their decisions
have on the rights of individuals and the need to respect those rights. This
greater awareness and understanding could prevent many human rights breaches
from occurring.
Experience in the UK has shown that ‘[h]uman rights principles can
help decision-makers and others see seemingly intractable problems in a new
��’.^[259] This is because a Human Rights Act would define human rights and provide a
framework to analyse, understand and ultimately resolve issues that may have at
first seemed to be
unresolvable.^[260]
This framework should improve public service delivery by leading to more
individualised solutions. This should reduce the level of complaints received
and increase the effectiveness of the service.
In this way, a Human Rights Act would positively impact on the lives of
people in Australia in their regular, day-to-day contact with government
departments and public services. It would strengthen Australia’s human
rights culture both in government and the general community.
The following sections explain the Commission’s view on who should be
included in the definition of a ‘public authority’; the obligations
a Human Rights Act might impose on public authorities; and the steps a public
authority could take to ensure they are adequately fulfilling their
responsibilities.

(a) A Human Rights Act should clearly define
‘public authority’

Generally speaking, a Human Rights Act should require that ministers,
departments, government agencies and any other organisations acting on behalf of
the government respect human rights when making decisions that impact on
individuals.
The definition of ‘public authority’ should be flexible enough
to accommodate changes to governance arrangements and clear enough to provide
certainty as to who must comply with a Human Rights
Act.^[261]
It is particularly important that the definition of ‘public
authority’ include private organisations when they are performing public
functions on behalf of government. This is because, increasingly, services
previously performed by government are being outsourced to corporations and
community organisations.^[262] Outsourcing should not deprive the users of that government service from the
right to be treated with respect and in accordance with human rights.
Furthermore, Australian public authorities (for example, the Australian
Federal Police or AusAid) should be required to comply with a Human Rights Act
when conducting operations
internationally.^[263]
However, the Parliament and federal courts should generally be excluded from
the definition of public authority, other than when acting in an administrative
capacity. This exclusion would preserve parliamentary supremacy and protect
against any interference with judicial power.
The definition of public authority should also exclude individuals or
organisations that are not performing public functions.

(b) A Human Rights Act should require public
authorities to consider and respect human rights

A Human Rights Act should ensure that public authorities respect human
rights in their actions and properly consider human rights when making
decisions.
To achieve this result, a Human Rights Act could make it unlawful for a
public authority to:
- act in a way that is incompatible with human rights (where an
  ‘act’ includes a failure, refusal or a proposal to
  act)^[264]
- fail to give proper consideration to human rights in
  decision-making.
For example, a Human Rights Act could make it unlawful for the Department of
Immigration and Citizenship to treat a person in immigration detention in a way
that breaches the right to be free from cruel, inhuman and degrading treatment.
When making decisions, a public authority would need to interpret and apply
laws and regulations in a way that is compatible with human rights. However,
this obligation would be subject to Parliament’s clear intention to the
contrary. In other words, a public authority’s actions or decisions would
not be unlawful if the legislation expressly required the authority to act in a
way that was inconsistent with human
rights.^[265]
The Commission acknowledges that these obligations may require some changes
to the policies and procedures of public authorities. To address this
operational concern, the obligations on public authorities under a Human Rights
Act could commence after a ‘lead-in’ period of one to two
years.

(c) Human rights should
be incorporated into public sector practice and procedures

If a Human Rights Act imposes obligations on public authorities, the public
sector could need to take steps to ensure that respect for human rights is
embedded into public sector practice and procedure.
Those steps could include:
- better education of the public sector about human rights and the obligations
  under a Human Rights Act
- requiring federal government departments and agencies to develop human
  rights action plans
- requiring federal government departments and agencies to conduct annual
  human rights audits and prepare annual reports on compliance with the Human
  Rights Act
- integrating respect for human rights into public sector values and codes of
  conduct
These initiatives are described more fully below.
It may not be appropriate for all of these mechanisms to be explicitly set
out in a Human Rights Act. Rather, these features could be integrated into the
practice and procedure of the public sector.
The Commission understands that some people are concerned that this could
lead to undue bureaucracy and expense for public authorities. However, most of
these measures should complement, or be incorporated into, the current practice
and procedure of the public service.
For example, the Australian Public Service has had the ‘Charter of
Public Service in a Culturally Diverse Society’ since
1998.^[266] This Charter recognises
that service delivery should be tailored to the different needs of different
groups of people and that this is ‘the foundation upon which to improve
effectiveness and
��ڴھ��Գ��’.^[267]
A national Human Rights Act would similarly be about ensuring that
government properly considers the needs of all members of Australia’s
increasingly diverse population. In human rights terms, this means that no
person should apply blanket policies without proper regard to the particular
circumstances of an individual user of public services. Greater personalisation
of the public sector means better public service, leading to better policy
outcomes.
Example: How could a Human Rights Act make a
difference?

A Human Rights Act would lead to improvements in the
practice and procedures of public authorities.

Example one: In Victoria, a local service provider for people with disability
implemented a new system in which its routine assessment of client needs
included explicit consideration of their human rights through the use of a
mandatory Human Rights Checklist. Any issues identified by staff were then
referred to an internal Human Rights Committee for review, with the Committee
making recommendations to the person’s case manager. Through the
implementation of these new processes, the service provider became aware of a
number of people with intellectual disabilities whose ability to exercise their
right to vote had been restricted. The service took immediate steps to support
them to make individual decisions about how they would
vote.^[268]

Example two: A nursing home in the UK had a practice of routinely placing
residents in special ‘tilt-back’ wheelchairs, regardless of whether
they could walk or not. As a consequence, residents who were able to walk
unaided were stopped from doing so. This had a severe impact on their ability to
make choices about everyday activities, as well as their capacity to feed
themselves and use the bathroom. A consultant pointed out to staff that their
failure to consider the different circumstances of individual residents was
contrary to human rights principles. She drew particular attention to the right
to respect for private life, which emphasises the importance of dignity and
autonomy, and the right not to be treated in a degrading way. This
‘one-size-fits-all’ practice was stopped. Residents who could walk
were taken out of the chairs and encouraged to maintain their walking
skills.^[269]

(i) Better education about
human rights and the obligations under a Human Rights Act

Public servants, parliamentarians and their staff, courts and tribunals, the
legal profession, and any private bodies which perform public functions on
behalf of the government should receive specialised human rights education and
training about a Human Rights Act. In the early years of the Act’s
operation, education and training should be a whole-of-government initiative,
supported by specific departmental projects. Further, there should be support
for training in private organisations acting as ‘public
��ܳٳ�ǰ��پ��’.
In Victoria, for example, the newly-established Human Rights Unit of the
Department of Justice developed and delivered a whole-of-government human rights
education strategy during 2007, including:
- Legal and Legislative Policy Officer Training delivered to over 500
  participants
- the Human Rights Implementation Program, a train-the-trainer course
  delivered to over 300 service delivery staff across
  government.^[270]

These whole-of-government initiatives were complemented by initiatives at
the departmental level, including:
- training courses for staff
- changes to the induction and performance management
  programs
- online learning modules and other internal communication strategies such as
  newsletters, displays and a Human Rights
  Week.^[271]
These complementary initiatives continued into 2008. As the different
departments became more familiar with the Victorian Charter, they generally
provided a greater level of support to private bodies acting as public
authorities.^[272]

(ii) Human rights action
plans for federal departments and agencies

Federal government departments and agencies should be required to prepare
internal human rights action plans specifying how they intend to fulfil their
obligations under the Human Rights Act. These action plans would assist
departments and agencies to embed the consideration of human rights into their
policies, procedure and practice.
The human rights action plans should become the assessment and reporting
framework for audits and annual reports on compliance with human rights.

(iii) A Human Rights Act
could require annual reports and human rights audits

A Human Rights Act could require federal government departments and
agencies to conduct an annual human rights audit and to report on their
compliance with the Act.
The annual reports could include:
- details about the measures undertaken to comply with the Human Rights Act,
  including an assessment of the department or agency’s performance against
  its human rights action plan
- human rights education or training that the department or agency has
  undertaken and the impact of that training on staff
- details about complaints under the Human Rights Act involving the department
  or agency, including information on the status of those complaints or how those
  complaints were resolved.
Government departments and agencies could also be subject to an external
audit to determine the extent to which their practices and procedures are
compatible with human rights.

(iv) Human
rights could be incorporated into public service values and codes of conduct

The responsibility of public servants to respect and promote human rights in
the performance of their duties should be articulated in the Australian Public
Service Values and Code of Conduct.
For example, the Public Administration Act 2004 (Vic) includes the
following public sector value:

human rights—public officials
should respect and promote the human rights set out in the Charter of Human
Rights and Responsibilities by—

(i) making decisions and providing advice consistent with human rights;
and

(ii) actively implementing, promoting and supporting human
rights.^[273]

The Act also provides that public sector body heads (including heads
of departments) must establish employment processes that will ensure that
‘human rights as set out in the Charter of Human Rights and
Responsibilities are
�ܱ��’.^[274]
Setting out similar requirements in the Australian Public Service Values and
Code of Conduct could help to integrate respect for human rights into the
culture of the Australian public
service.^[275]

Recommendation
19: The definition of ‘public authority’ in a Human Rights Act
should include private organisations when they are performing public functions
on behalf of government.

Recommendation 20: Parliament and courts should be excluded from the
definition of ‘public authority’ except when acting in an
administrative capacity.

Recommendation 21: A Human Rights Act should make it unlawful for a
public authority to:

act in a way that is incompatible with human rights
fail to give proper consideration to human rights in
decision-making.

Recommendation 22: All federal government
agencies should take steps to ensure they respect the human rights set out in
the Human Rights Act by:

engaging in human rights training and education programs
preparing internal human rights action plans
reporting annually on compliance with the Human Rights
Act.

Recommendation 23: The Australian Public Service Values
and Code of Conduct should articulate the responsibility of the public sector to
respect human rights.

20.12 A
Human Rights Act should provide a cause of action and enforceable remedies if
public authorities breach human rights

As discussed above, the integration of human rights considerations into the
decision-making processes of public authorities should make public servants more
aware of the impacts of their decisions, and therefore help to prevent human
rights breaches.
However, sometimes better processes and education will not be enough, and
breaches of human rights may occur.
In those circumstances a Human Rights Act should provide a cause of action
and the possibility of enforceable remedies. This should, in itself, help to
build a stronger human rights culture both in the community and in government.
This would convey to the community that the Australian Government takes its
human rights obligations seriously. It would empower individuals to assert their
rights. It would also be a signal to public authorities that there will be
consequences for breaches of human rights.

(a) A
Human Rights Act should provide an independent cause of action

A Human Rights Act should provide an independent cause of action for victims
of a breach of human rights committed by a public authority.
The Commission understands the concern that a Human Rights Act may lead to
increased litigation.
However, an accessible alternative dispute resolution (ADR) process would
reduce the impact of a Human Rights Act on the judicial system.
Litigation need not be the only – or indeed, the first – port of
call for people who want to make a complaint alleging a breach of human rights.
The current anti-discrimination jurisdiction recognises the potential of ADR
to resolve disputes between complainants and public authorities in a quick,
cost-efficient and effective
manner.^[276]
Following this model, a Human Rights Act could require a person to attempt
to resolve a human rights complaint through the investigation and conciliation
processes provided by the Commission.
Any ADR process under a Human Rights Act should be properly funded,
accessible and affordable.
Where a complaint cannot be resolved through conciliation, complainants
should be entitled to pursue their claim in the Federal Court of Australia or
the Federal Magistrates Court.

(b) A
Human Rights Act should allow an independent cause of action for all rights in
the Act

The Commission believes that economic, social and cultural rights should be
given the same status and protection as civil and political rights under
Australian law. This is consistent with Australia’s international
obligations.
In the Commission’s view, an independent cause of action should be
available for a person to seek a remedy for a breach of human rights,
irrespective of the type of right breached. That is, independent causes of
action should not be limited to breaches of civil and political rights. This
approach recognises that human rights are indivisible and must be treated
equally, on the same footing, and with the same emphasis.
It also recognises that economic, social and cultural rights can be legally
enforced.^[277] Indeed,
‘[e]vidence shows that ... the adjudication of ESC rights across the world
has, in fact, been
�ɾ��𲹻�’.^[278] In
particular, significant jurisprudence has been developed in South Africa
regarding the economic, social and cultural rights protected by the South
African Bill of Rights.^[279]

(i) Court access could be limited to breaches of civil
and political rights

As discussed in section 20.5, the Commission believes that the protection of
economic, social and cultural rights in a Human Rights Act would not permit
courts to interfere in resource allocation. However, the Commission acknowledges
that there are strong views that economic, social and cultural rights should not
be the subject of litigation.
There are options for ensuring that public authorities respect economic,
social and cultural rights without creating an independent cause of action
before the courts.
For example, a Human Rights Act could:
- restrict independent causes of action to matters involving civil and
  political rights
- provide access to ADR at the Commission in matters solely involving
  economic, social and cultural rights, but not allow for complaints to be heard
  by a court if they cannot be resolved.
Under the second of these options, if the Commission formed the view that a
public authority had solely breached an economic, social or cultural right, the
Commission could report to the Attorney-General recommending what action should
be taken, including changes to policy and procedure.
The Commission might also report to the Attorney-General if it had received
a series of complaints indicating the need for further consideration of certain
policy areas. The Commission has significant expertise in reporting to the
government about economic, social and cultural rights, as set out in more detail
in section 24.3.
The Attorney-General could be required to respond to such reports in
Parliament.

(ii) Even if there was no cause of action for
economic, social and cultural rights, other aspects of the Human Rights Act
should still apply

Even if a Human Rights Act did not create an independent cause of action for
breaches of economic, social and cultural rights, those rights should still be
considered in pre-legislative scrutiny processes.
Further, courts should still interpret legislation consistently with the
economic, social and cultural rights protected by the Human Rights Act.
Finally, a public authority should still be required to give proper
consideration to economic, social and cultural rights in decision-making, and
individuals should still be able to access existing administrative review
processes if a public authority breaches this obligation (see section 20.12
below).
While these options would not provide full protection of economic, social
and cultural rights, they would still promote greater scrutiny of the impact of
public authorities on the enjoyment of those rights than is currently in
place.

(c) A
Human Rights Act should provide a range of enforceable remedies against public
authorities

A public authority should be held accountable if
it breaches the human rights of an individual.
A Human Rights Act could provide that accountability by giving a person
access to enforceable remedies when a public authority breaches his or her human
rights under the Act.
A Human Rights Act should permit a court to make such orders as it considers
appropriate if a public authority has breached human rights, including orders
requiring action, injunctions and damages.

(i) Orders requiring action

A Human Rights Act should give courts the power to make an order requiring a
respondent to act to redress any loss or damage suffered by a person whose human
rights have been breached.
Courts should also have the power to direct a respondent not continue or
repeat conduct that has been found to breach human rights.
Such powers would be consistent with the powers of courts hearing federal
discrimination claims. Section 46PO(4) of the HREOC Act sets out a
non-exhaustive list of remedies that are available for a successful claim under
the Race Discrimination Act, the Sex Discrimination Act, the Disability
Discrimination Act or the Age Discrimination Act. These include orders
‘directing the respondent not to repeat or continue... unlawful
discrimination’ and ‘requiring a respondent to perform any
reasonable act or course of conduct to redress any loss or damage suffered by an
��Գ�’.
This may be an especially important remedy for the violation of economic,
social and cultural rights, particularly in the event that access to damages may
be limited with respect to those rights (as considered below).

(ii) Injunctions

A Human Rights Act should specifically permit courts to make an order for an
injunction in cases where a public authority is proposing to act inconsistently
with human rights.
For example, section 46PP of the HREOC Act empowers the Federal Court to
grant interim injunctions in respect of a complaint of unlawful discrimination
lodged with the Commission, upon an application from the Commission,a complainant, a respondent or an affected person. The purpose of such an
injunction is to maintain the status quo.

(iii) Damages

The right to claim monetary damages for a breach of human rights would send
an important message to public authorities, people in Australia and the
international community: Australia takes breaches of human rights by, or on
behalf of its government, seriously.
Thus, a Human Rights Act should empower a court to make an order for damages
where appropriate. If this was not included in the Human Rights Act, there is
some risk that the Act would itself violate Australia’s obligations under
article 2(3) of the ICCPR (see section 7.4). Further, it would suggest that the
Australian Government takes human rights claims less seriously than other legal
claims for which compensation is available.
While not the preferable course, a Human Rights Act could exclude or limit
damages awards in relation to claims for breaches of economic, social and
cultural rights in order to address concerns about judicial adjudication of
those rights.
Damages are currently available for breaches of rights protected by federal
discrimination laws.^[280]
Damages are available for a violation of the UK Human Rights Act but only if
this award is necessary to afford just satisfaction to the
complainant.^[281]
While the New Zealand Bill of Rights Act 1990 (NZ) does not make
specific provision for remedies, the NZ Court of Appeal has held that
compensation is available for breach of the human rights protected under that
Act.^[282]
Damages are not available under the ACT Human Rights Act or the Victorian
Charter.^[283]

(d) A
Human Rights Act may have an impact on administrative law claims

Australia already has administrative law mechanisms to review the actions
and decisions of public authorities. A Human Rights Act could impact on those
mechanisms by supplementing existing bases for challenging government
decisions.

(i) A
Human Rights Act may be relevant in merits review

The Administrative Appeals Tribunal and other federal administrative bodies
such as the Social Security Appeals Tribunal and the Refugee Review Tribunal can
review the merits of certain decisions made by public officials.
In contrast to judicial review where courts do not remake decisions, merits
review asks the reviewer to ‘stand in the shoes’ of the original
decision-maker. This allows tribunals to reconsider discretionary matters and
the merits of the original decision.
Thus, tribunals should be required to take human rights into account in the
same way as a primary decision-maker.

(ii) A Human Rights Act may be relevant in judicial
review

A person who believes that a statutory decision-maker did not give proper
consideration to a relevant human right, as required by a Human Rights Act,
could seek judicial review of the decision. Under existing grounds for review, a
person could argue that the decision-maker made a decision that was contrary to
law or was an improper exercise of power because of a failure to take into
account a relevant
consideration.^[284]
Remedies for successful judicial review include the power to set aside the
decision or refer the decision back to the decision-maker for further
consideration, but not
damages^[285]

(e) A
Human Rights Act should give standing to appropriate representative
organisations

Litigation is often expensive, time consuming, and, particularly for
unrepresented litigants, a confusing process.
One way to improve access to justice for victims of human rights violations
is to ensure that the standing rules in a Human Rights Act are broad.
Broad standing rules could enable an organisation or entity to bring an
action on behalf of an alleged victim of human rights violations in
circumstances where the victim does not have the capacity or resources to bring
such an action themselves.
The Australian Law Reform Commission has considered the issue of standing
rules and has recommended permitting appropriate organisations with a legitimate
interest in a particular subject matter to commence human rights proceedings,
particularly where the claim involves a systemic problem that affects a wide
class of persons.^[286]
The HREOC Act currently allows a person to bring a discrimination complaint
to the Commission on behalf of an aggrieved person. However, only the aggrieved
person can pursue the complaint in the courts, and the ability of representative
bodies to bring claims on behalf of members is very
limited.^[287] This presents an
unnecessary obstacle to justice and one which should not be replicated in a
Human Rights Act.

Recommendation 24: A Human Rights Act
should provide an independent cause of action against public authorities for a
breach of their obligations under the Human Rights Act.

Recommendation 25: A Human Rights Act should provide remedies for
breaches of civil and political rights and breaches of economic, social and
cultural rights.

Recommendation 26: A Human Rights Act should provide access to the
complaint handling section of the Commission for individuals alleging a breach
of the human rights set out in the Human Rights Act.

Recommendation 27: A Human Rights Act should permit a court to make
such orders as it considers appropriate if a public authority has breached human
rights, including orders requiring action, injunctions and damages where
necessary.

Recommendation 28: A Human Rights Act should include broad standing
provisions that enable claims to be brought on behalf of a person who is an
alleged victim of a breach of human rights.

20.13 A
Human Rights Act should improve community understanding of human
rights

A Human Rights Act could be a fundamental tool for better community
education on human rights.
A Human Rights Act could provide a clear focus for a human rights education
and community awareness program across Australia. It should be a clear statement
of Australian rights and values, and of how Parliament intends to protect those
rights and values.
A Human Rights Act could help people in Australia to identify their rights
and their responsibilities to respect the rights of others. It could also
explain what to do if these rights are not respected by public authorities.
To be an effective education tool, a Human Rights Act should be accessible
to all people in Australia. In particular, it should be:
- drafted using plain English
- made available in a range of formats and languages to ensure accessibility
  for people with disabilities, people whose first language is not English, and
  people of different age groups.
Further, the Australian Government should commit to building awareness of
the Act through:
- community engagement including public education campaigns, media and
  community training workshops
- incorporating human rights education into the core curricula taught in
  schools.
Information, education and awareness-raising campaigns about a Human Rights
Act should be delivered in a way that is culturally relevant to Indigenous
peoples and people from culturally and linguistically diverse backgrounds.
Particular attention should also be paid to human rights education in rural
and remote communities in Australia.
Example: How could a Human Rights Act make a
difference?

A Human Rights Act could raise awareness of human rights
and be used as an advocacy tool to ensure that public authorities respect human
rights.

Example one: In Victoria, a pregnant single mother of two children living in
community housing was given an eviction notice. The notice didn’t provide
any reasons for the eviction or allow her to address the landlord’s
concerns. The Victorian Charter was used to negotiate with the landlord to
prevent an eviction into homelessness. An alternative agreement was
reached.^[288]

Example two: Following the death of her mother, a woman found that she and
her children were not entitled to remain in her mother's public housing
property, because the lease had been in her mother's name. The children had
always lived in that house and had close contacts with the local community,
especially their school and nearby friends. There was a risk the woman would
lose custody of her children if they were required to leave the property and she
could not provide a home for them. A community legal centre helped the woman by
raising the right to protection of family life in submissions to the public
housing authority. The woman was given a lease over the
property.^[289]

Recommendation 29: A Human Rights Act should be clear, accessible and
accompanied by a broad community education program.

20.14 A
Human Rights Act should be periodically reviewed

A Human Rights Act should be subject to periodic independent reviews to
assess its impact and effectiveness.
Periodic review could ensure the continued relevance of a Human Rights Act
for an evolving Australia. It could draw the government’s attention to
necessary amendments and help prevent a Human Rights Act from becoming
‘frozen in time’.
Reviews could include consideration of whether further rights should be set
out in a Human Rights Act – especially in the event that it does not
initially protect economic, social and cultural rights, or specifically
articulate the rights of members of particularly vulnerable groups.
Reviews could also consider whether the causes of action and remedies under
a Human Rights Act provide effective redress for breaches of human rights.
Reviews might also consider whether further human rights education
initiatives are required to better implement the Human Rights Act.
These periodic reviews should involve widespread public consultation. In
particular, the consultation process should ensure that Indigenous peoples can
participate effectively.

Recommendation 30: The operation and
implementation of a Human Rights Act should be subject to periodic independent
review.

20.15 A
stronger role for the ��鱨վ would help implement a
Human Rights Act

As Australia’s national human rights institution, the Commission has
over two decades of experience in analysing, applying and promoting
international human rights standards in the Australian context. This makes the
Commission ideally placed to play a significant role in the implementation of a
Human Rights Act in Australia.

(a) The Commission could promote public awareness
and understanding of a Human Rights Act

The Commission’s current statutory functions include promoting
understanding, acceptance and public discussion of human rights in
Australia.^[290] The Commission has
substantial expertise and experience in this area and is ready to play a leading
role in engaging the Australian community on the content and effect of a Human
Rights Act.
The Commission’s role in this regard might include:
- undertaking research
- developing public education programs
- running community based workshops
- holding public forums
- developing materials for use in schools
- using innovative information and communications technology to promote
  awareness of a Human Rights Act.

(b) The Commission could scrutinise bills and laws
for human rights compatibility

Greater pre-legislative scrutiny is a critical tool for preventing breaches
of human rights. The Commission’s expertise means that it can play a
valuable role in scrutinising bills and laws for human rights compatibility.
However, as discussed in section 16.1, the Commission currently has limited
powers in relation to scrutiny of proposed laws. It also has limited powers to
progress recommendations about existing laws that are incompatible with human
rights.
Under a Human Rights Act, the Commission could be given an independent power
to examine whether laws and bills are compatible with the human rights protected
by the Act.
Such a power should be discretionary, not mandatory. It should be a
self-initiated power of the Commission (in other words it should not require the
invitation of the Attorney-General or any other party).
When the Commission undertook such an examination and provided a report to
the Attorney-General, the Attorney should be required to table the report in
Parliament within a fixed time period.
Importantly, the Attorney-General should also be required to table a
response setting out how the government intended to respond to the
Commission’s recommendations. This response should be tabled within a
fixed period, for example within six months of the initial report being
tabled.

(c) The Commission could investigate and conciliate
complaints under a Human Rights Act

The Consultation Committee’s Background Paper invites people to
consider whether the Commission’s jurisdiction should be expanded to
enable it to inquire into and conciliate a broader range of human rights
complaints.^[291]
The Commission currently handles complaints of human rights breaches, as
well as complaints of workplace discrimination and unlawful discrimination
contrary the four federal anti-discrimination
laws.^[292] The Commission’s
complaints procedure provides an accessible, cost-effective and efficient system
of alternative dispute resolution. During the 2007-2008 financial year, the
Commission’s Complaint Information Service handled 18 765 enquiries, and
finalised 1883 complaints in an average time of six
months.^[293]
If a Human Rights Act permitted complaints of alleged human rights breaches
to be made against public authorities, the Commission could be given
jurisdiction to investigate and conciliate those complaints.
The process for resolving complaints of alleged human rights violations
under a Human Rights Act could mirror the Commission’s current complaints
procedure in the unlawful discrimination jurisdiction.
Following this model, a Human Rights Act could require a person to lodge
their human rights complaint with the Commission. The Commission would
investigate the complaint and seek to resolve it through conciliation, thereby
avoiding unnecessary litigation. Where the Commission could not resolve a
complaint, the complainant could pursue their claim in the Federal Court or the
Federal Magistrates Court.

(d) The Commission could assist courts in cases
involving a Human Rights Act

The Commission can currently intervene, with the leave of the court, in
proceedings involving ‘human rights’, as defined in the HREOC
Act.^[294] The Commission and its
Commissioners can also intervene or act as amicus curiae in cases
involving discrimination
issues.^[295]
The special expertise the Commission has developed through performing its
current statutory intervention and amicus functions – in over 70
cases – places the Commission in a unique position to assist courts and
tribunals on the meaning, scope and application of human rights, including the
interpretation of international human rights jurisprudence.
Thus, under a Human Rights Act, the Commission could have the power to
intervene in court or tribunal proceedings involving the interpretation or
application of the Act.
This should be an automatic right of intervention – the Commission
should not be required to seek the leave of the court. This would be consistent
with the Victorian Charter, which grants the Victorian Equal Opportunity and
Human Rights Commission a right of
intervention.^[296]
Further, to allow the Commission a reasonable opportunity to consider
whether or not to intervene in relevant proceedings, a Human Rights Act should
require that the Commission receive formal notice of any court or tribunal
proceedings involving the interpretation or application of the Act.

(e) The Commission could notify the
Attorney-General about laws which are inconsistent with a Human Rights
Act

Under a Human Rights Act, the Commission could be empowered to notify the
Attorney-General if a court finds that it cannot interpret a law consistently
with the Human Rights Act.
This should be a discretionary power of the Commission, rather than a
mandatory function.
This notification process is discussed in further detail in section
20.10.

(f) The Commission could review policies and
practices of public authorities under a Human Rights Act

Under a Human Rights Act, the Commission could be empowered to review the
policies and practices of public authorities to assess their compatibility with
the Human Rights Act. This power should be exercisable on the Commission’s
own initiative, without an invitation from the relevant public authority. The
Commission should have the right to access any documents, witnesses or other
information necessary to conduct a proper review.
The Commission should also be empowered to make recommendations to the
public authority in question after conducting such a review. For instance, the
Commission might recommend changes to the policies or practices of a public
authority to make them compatible with the Human Rights Act.
Public authorities should be required to respond to the Commission’s
recommendations.

(g) The Commission could prepare an annual report
on the operation of a Human Rights Act

The Commission could conduct a general assessment of the overall impacts of
a Human Rights Act by preparing an annual report on the operation of the Act.
These reports could be fed into the periodic reviews of the Act (as discussed in
section 20.14).
The Commission’s reports might consider issues relating to the
implementation of the Act, compliance and non-compliance with the provisions of
the Act, and relevant court proceedings.
A Human Rights Act should not mandate the specific content of these annual
reports. There should be sufficient flexibility to allow the Commission to focus
on the most relevant aspects of the Act’s operation in any given
year.
The Attorney-General should be required to table the annual report in
federal Parliament within a fixed period after receiving it from the Commission.

(h) The Commission would need adequate funding to
fulfil any new responsibilities

The Commission could play an important role in promoting and implementing a
Human Rights Act. However, if the Commission was tasked with additional
functions under a Human Rights Act, the government would need to provide
sufficient resources to enable the Commission to properly fulfil those
functions.

Recommendation 31: The Commission should have the
following functions and powers under a Human Rights Act:

a function of promoting public awareness and understanding of the Human
Rights Act
a discretionary, self-initiated power to examine whether laws and bills are
compatible with the human rights protected by the Human Rights Act
a function of investigating and conciliating complaints of alleged
breaches of human rights by public authorities under the Human Rights Act
power to intervene, without seeking leave, in court or tribunal proceedings
involving the interpretation or application of the Human Rights Act
power to notify the Attorney-General, either of its own motion or at the
request of a party to the relevant proceedings, if a court finds that it cannot
interpret a law consistently with the Human Rights Act
a discretionary, self-initiated power to review the policies and practices
of public authorities to assess their compliance with the Human Rights Act
a function of preparing an annual report on the operation of the Human
Rights Act.

Recommendation 32: If the Commission is granted
new functions under a Human Rights Act, the Australian Government must ensure
that sufficient additional resources are provided to the Commission to enable it
to carry out those functions.

20.16 The
Commission’s response to arguments against a Human Rights Act

The Commission acknowledges that there are many
strongly-held views against a Human Rights Act. It has spent considerable time
considering those views.
The following sections respond to some of the more common arguments against
a Human Rights Act, and explain why the Commission believes that a Human Rights
Act would lead to better promotion and protection of human rights in Australia.

(a) There
is no historical basis for a Human Rights Act in Australia

It is frequently argued that there is no foundation in Australia’s
history for a Human Rights Act. The drafters of the Australian Constitution did
not see the need for a bill of rights for Australia. Nor have Australian voters
supported past attempts to insert guarantees of basic rights into the
Constitution and to extend existing constitutional rights to bind the
states.
However, it is important to recognise what have been described as ‘the
real motivations of the drafters’ in rejecting a bill of rights. The
drafters ‘were driven by a desire to maintain race-based
�徱��پ��Գ��پ��ǲԲ�’.^[297] In
particular, the drafters were intent on preserving the ability of the states to
discriminate on the grounds of race.
Racial discrimination is clearly unacceptable in Australia today, yet
Australia’s Constitution still contains racist provisions. Australia
should not bind itself to the outcome of this historical reasoning. Instead,
Australia should be guided by the international human rights standards that the
Australian Government has promised to promote and protect.
More recent history suggests that Australians do support statutory human
rights protection. Since 2003, independent inquiries in the ACT, Victoria,
Western Australia and Tasmania have consulted widely and reported broad public
support for human rights legislation.
For example, in the most recent inquiry, an independent opinion poll found
that 89% of Western Australians thought that their state should have a law that
aims to protect human rights.^[298]
Further, in February 2009, an independent Neilson poll commissioned by
Amnesty International Australia found that 81% of people surveyed would support
the introduction of a law to protect human rights in
Australia.^[299]

(b) There are already
sufficient human rights protections in Australia – ‘if it
ain’t broke, don’t fix it’

Many people in Australia enjoy a relatively high standard of living.
Australia is a great country to live in, for most of us, most of the time.
However, as detailed in section 9 and Appendix 2, the Commission’s
experience over the past 23 years confirms that human rights are not always
adequately protected and promoted in Australia. This applies to many groups in
the community, including Indigenous peoples, people seeking asylum, refugees,
women, people with disability, and people who are homeless, to name a few.
In addition, any one of us could move from a situation where our rights are
currently well protected to one where they are vulnerable. For example, any
person could suffer a car accident and end up in a wheelchair; we are all going
to get older; we may have a family member who suffers from a mental illness; and
with the global financial crisis, we are all more vulnerable to unemployment and
associated concerns about housing, education, transport and food.
For many people in Australia, the system is ‘broke’. It is time
to fix it.

(c) Human rights can be
best protected by relying on our democratic institutions

Australia is a robust democracy. However, as discussed in Part B, there are
numerous examples of laws and policies that have, despite this democratic
system, shown insufficient regard or respect for fundamental human rights.
These examples, and the human rights concerns discussed in Appendix 2,
suggest that politicians cannot always be counted on to pay sufficient regard to
the protection of the human rights of all people in Australia.
While the capacity to vote politicians out of power is a fundamental aspect
of Australia’s democracy, the majority view is not always aware of, or
sympathetic to international human rights standards.
Opponents of a Human Rights Act point to the achievements of Parliament in
addressing some human rights problems as evidence that Australia’s
democratic system currently protects human rights. There are certainly examples
of wrongs that Parliament has set right. Yet, change is often too slow.
For example, public pressure eventually led to the removal of many
asylum-seeking children from immigration detention centres – but only
after hundreds of children were held in detention centres for long periods of
time, during which the mental health of many children was severely damaged. Even
now, some children are still held in immigration detention facilities.
Similarly, last year the Australian Government amended more than 80 laws
which discriminated against people in same-sex relationships – but only
after thousands of people had suffered ongoing financial hardship just because
of the sex of the person they loved.
On the other hand, parliamentary processes can sometimes work swiftly and
without proper consideration of human rights. This was the case, for example,
with the Northern Territory Emergency Response legislation and the
counter-terrorism laws discussed in sections 11.1 and 13.3.
A Human Rights Act would lead to the routine and careful consideration of
human rights in the early stages of the law- and policy-making process. This
would help prevent human rights problems. It would also result in courts being
better informed about the legislative intent behind particular laws.
Further, in considering whether a law could be interpreted consistently with
human rights, courts could help reveal human rights impacts that were not at
first apparent or that only emerged in the application of the law to an
individual. This would give Parliament the opportunity to reconsider laws in a
fresh light. A Human Rights Act could therefore enhance the ability of
Australia’s democratic institutions to respond to human rights problems
when they do occur.

(d) A Human Rights Act
would be undemocratic

A common argument against a Human Rights Act is that it will shift power
from Parliament to unelected judges.
However, the Human Rights Act model suggested by the Commission would
maintain the supremacy of Parliament. It would be an ordinary Act passed by
Australia’s elected representatives, meaning that it would be a
fundamentally democratic document. Any power given to a court, or any other
body, would be voluntarily given by the Parliament itself. And Parliament would
be able to repeal, amend or override a Human Rights Act using its ordinary
legislative mechanisms.
A Human Rights Act would not upset the separation of powers, or politicise
the judiciary by permitting courts to ‘make’ policy.
Under a Human Rights Act, Australian courts would be doing the kind of work
they always do – interpreting laws, balancing competing issues and social
concerns, and making difficult decisions in complex matters.
The Human Rights Act model preferred by the Commission would not permit
courts to interpret legislation in a way that is inconsistent with the purpose
of Parliament (see section 20.9). And it would not permit courts to invalidate
laws made by Parliament.
If a court was unable to interpret legislation consistently with the rights
set out in the Human Rights Act, Parliament could be notified of this
inconsistency and be required to respond publicly.
The final decision on how to deal with that law would remain with the
elected Parliament. If Parliament chose to amend the law, this would not be the
result of ‘undemocratic’ interference or pressure from courts. This
would be democracy in action. For if Parliament decided not to amend a law that
was found to be inconsistent with human rights, it would have to justify that
decision to the public. The Australian people would have the ultimate say
– at the ballot box.
A Human Rights Act may also allow Parliament to limit rights in certain
situations. However, if that happened, Parliament would have to publicly justify
those limitations according to criteria that it decided upon in enacting the
Human Rights Act.
Rather than being undemocratic, a Human Rights Act would mean that the
public would be better informed about parliamentary decisions that affect their
human rights. This would promote greater accountability among politicians, and
strengthen Australia’s democratic system of government.

(e) Human rights are
vague and incapable of application by courts

It has been suggested that a Human Rights Acts would consist of vague
guarantees or values.
The Commission believes that a Human Rights Act should contain fundamental,
universal rights sourced in treaties to which Australia is already a party.
Those human rights have decades of history behind them, and the Australian
Government has voluntarily agreed to uphold those standards.
Because they are universal, these rights are frequently cast in general
terms. However, this does not mean that courts will be ‘taking leaps into
the dark ... they will be walking along judicially well-worn
�貹�ٳ��’.^[300] Courts will be
able to draw upon the considerable body of international and comparative
jurisprudence that has given content to human rights.

(f) The rights set out
in a Human Rights Act would become ‘frozen in time’

Another common argument against a Human Rights Act is that it would limit
rights to those included in the Act, and that it would become outdated and
inflexible.
However, a Human Rights Act could be amended by federal Parliament if
necessary. For instance, if Australia committed to the protection of new rights,
these could readily be incorporated into a Human Rights Act.
Further, a Human Rights Act could state that the rights in the Act are not
exhaustive. Rights recognised elsewhere in Australian or international law would
not be limited just because they are not included, or are not fully included, in
the Act. Rights may also be implemented through other legislation or policy.
Finally, periodic independent reviews of a Human Rights Act would guard
against rights becoming frozen in time.

(g) A
Human Rights Act would be a ‘lawyer’s picnic’

It has been argued that a Human Rights Act would lead to a
‘flood’ of litigation.
By embedding human rights considerations into government decision-making, a
Human Rights Act could actually prevent human rights problems from arising in
the first place, reducing the need to go to court.
A Human Rights Act is not about lawyers, judges or courts –
‘human rights can be about the way your government treats you, every
�岹��’.^[301] The biggest
impact of a Human Rights Act would be felt outside the courtroom, often by
people who cannot afford lawyers.
In fact, numerous case studies from the UK, the ACT and Victoria show that
ordinary people can benefit from Human Rights Act without having to go to
court.^[302]

(h) A Human Rights Act
would distance people from democratic processes

A related argument is that a Human Rights Act would diminish the ability of
people to participate in democratic processes, because it would lead to an
increased focus on litigation.
While virtually all new legislation has the potential to generate
litigation, it seems unlikely that a Human Rights Act would lead to
significantly increased litigation.
A Human Rights Act would actually enhance democratic processes – the
public would be informed of decisions by Parliament to limit human rights and of
the justifications behind those decisions. Armed with this information, the
public would be better prepared to participate in democratic processes.
A Human Rights Act would not prevent people from participating in political
campaigns. To the contrary, as a statement of the fundamental rights that
Parliament has agreed to protect and promote, a Human Rights Act could provide a
focus for advocacy and a standard to which government should be held
accountable.
Further, by creating greater transparency in law- and policy-making
processes (see section 20.8), a Human Rights Act would provide ordinary citizens
with greater information about the decisions being made by the Parliament and
executive.
Finally, a Human Rights Act would help to ensure that the needs of
individuals are considered by government. For example, the UK Human Rights Act
has improved:

the relationship between the citizen and the State, by
providing a framework for policy formulation which leads to better outcomes, and
ensuring that the needs of all members of the UK’s increasingly diverse
population are appropriately considered both by those formulating the policy and
by those putting it into effect. In particular, ... the Act has led to a shift
away from inflexible or blanket policies towards those which are capable of
adjustment to recognise the circumstances and characteristics of
individuals.^[303]
The Commission expects that a Human Rights Act would similarly improve the
relationship between people in Australia and the Australian Government, rather
than creating distance between them.

(i) A Human Rights Act
would only benefit vocal minorities

It is sometimes argued that a Human Rights Act is an attempt by minority
groups to impose their views on the majority.
On the contrary, a Human Rights Act would guarantee the rights of all people
in Australia.
It may be that, in practice, members of the ‘majority’ will have
limited need to access the causes of action available in a Human Rights Act.
However, the systems set up by the Act would ensure that the rights of all
people in Australia are respected. For example, a Human Rights Act would require
public authorities to respect the rights of individuals, no matter who they are.
And it would require the executive to consider the impact of new policy on
individuals, no matter who they are.
A Human Rights Act would also set up a safety net in case a member of the
‘majority’ should slip into a more vulnerable group – due to
unemployment, accident, age, family circumstances or any other reason.
A further argument is that Human Rights Acts in other jurisdictions have
only benefitted ‘villains’, ‘terrorists’ or
‘c��Բ��’.^[304] However, even ‘villains’, ‘terrorists’ and
‘criminals’ have human rights.
In any event, the 2006 review of the implementation of the UK Human Rights
Act found that the Act ‘has not seriously impeded the achievement of the
Government’s objectives on crime, terrorism or
��پ��ǲ�’.^[305]
Overwhelmingly, a Human Rights Act would benefit ordinary people, in their
everyday interaction with government.

(j) A
Human Rights Act would frustrate the business of government

Another argument is that a Human Rights Act could impede the ability of
Parliament to deal with pressing problems.
However, a Human Rights Act would not prevent Parliament from passing laws.
Nor would it allow courts to strike down laws. It would require Parliament to
consider human rights when making decisions and to publicly justify decisions to
limit rights. The Commission believes that this would be a good thing, even if
it came at the expense of speed.
It is sometimes argued that a Human Rights Act could place undue
bureaucratic burdens upon public authorities.
It is true that, initially, a Human Rights Act may create additional work
for public authorities. However, a Human Rights Act should work alongside
existing processes and structures so as to reduce administrative burdens. There
could also be a ‘lead-in’ period to allow time for public
authorities to adjust to a Human Rights Act.
Some public authorities may need to review and change their practices to
comply with the Human Rights Act. Yet, as Byrnes, Charlesworth and McKinnon have
observed, where the operations of public authorities do not conform to human
rights standards ‘there may be good reasons for insisting on the
��󲹲Բ��’.^[306]
By requiring public authorities to consider human rights in decision-making,
a Human Rights Act could actually lead to greater efficiency, more targeted
service delivery, and less time spent responding to complaints.

(k) A
Human Rights Act would stifle debate about contentious issues

It has been argued that a Human Rights Act would stifle debate about
important, and often contentious, matters. The Commission believes a Human
Rights Act would have the opposite effect.
In the Commission’s view, a Human Rights Act would encourage further
debate about contentious issues by requiring Parliament to openly consider the
human rights impacts of legislation. Under a Human Rights Act, Parliament
would still have the same power to make or change laws that it has now.

(l) A Bill of Rights
didn’t work in the USSR, Pakistan or Zimbabwe, why would a Human Rights
Act work here?

Opponents of a Human Rights Act have emphasised the failure of domestic
rights guarantees to prevent human rights abuses in certain countries, such as
the USSR, Nazi Germany, Pakistan or Zimbabwe.
No law operates independently of its social context. The failure to protect
rights in certain countries cannot be attributed to a human rights law or a bill
of rights – but rather to complex social and political factors, including
civil unrest and a lack of respect for the rule of law.
It has also been claimed that the US Bill of Rights did not stop Guantanamo
Bay. However, it is arguable that the US Government chose this detention site
precisely because it was attempting to avoid the reach of its constitutional
safeguards.^[307]
A Human Rights Act alone is not the solution to all human rights problems.
Where democratic institutions break down, human rights protections may be of
limited value. A Human Rights Act works best when it is embedded within
governance systems that respect the rule of law.
Australia has a healthy respect for the rule of law, but Australia’s
system of checks and balances has not always protected the human rights of all
people in Australia.
A Human Rights Act could build upon Australia’s existing protections.
It could enhance our democratic system of government by requiring greater
transparency in, and accountability for, decision-making by elected
representatives and public authorities.

21 An
Equality Act for Australia

21.1 Introduction

Discrimination has historically been a significant barrier to the exercise
and enjoyment of human rights in Australia. This Consultation provides a timely
opportunity to consider how to strengthen Australia’s anti-discrimination
laws in order to more effectively protect and promote the right to
equality.
The Consultation Committee’s Background Paper asks:
- Are there inconsistencies between existing anti-discrimination laws that
  should be addressed?
- Would it be simpler to make a complaint if there was one, streamlined
  Commonwealth anti-discrimination law to cover the four existing areas of
  unlawful discrimination, as well as any new areas of unlawful
  discrimination?^[308]

The Commission believes, in principle, that Australia’s current
federal anti-discrimination laws should be replaced by a single Equality Act,
which broadens the grounds on which discrimination is prohibited.
As a first step, the Australian Government should initiate a comprehensive
and independent national inquiry into the merits of a single Equality Act.
While the Commission believes that a national Human Rights Act is the key to
better protecting and promoting human rights in Australia, stronger
anti-discrimination legislation is necessary even if a Human Rights Act is
enacted. A Human Rights Act will perform a different and complementary role to
anti-discrimination laws.

21.2 Australia’s
anti-discrimination laws need to be overhauled

Australia’s anti-discrimination laws provide an important pillar of
legislative human rights protection. Nevertheless, a significant number of
limitations and deficiencies persist.
Australia’s anti-discrimination regime has developed in a piecemeal
fashion over several decades to cover particular attributes in particular
circumstances, often in response to new international treaty
obligations.^[309] This has
resulted in inconsistencies and has left gaps, as discussed below.

(a) Federal laws do not
cover some important areas of discrimination

The only types of discrimination proscribed under federal law are
discrimination on the grounds of race, sex, disability and age and related
characteristics.^[310]
Unlike equivalent legislation in the states and territories, as well as
overseas, federal anti-discrimination laws do not provide protection against
discrimination on the basis of attributes such as:
- religion^[311]
- political beliefs^[312]
- sexual
  orientation/preference^[313]
- sexuality/transgender^[314]
- trade union
  activities^[315]
- nationality^[316]
- occupation^[317]
- medical record^[318]
- criminal
  record.^[319]
This failure to proscribe discrimination on these grounds sends a poor
message to the Australian community that discrimination on such grounds is
acceptable. It also falls well short of implementing Australia’s
international
obligations.^[320]
In 2009, the UN Human Rights Committee stated that it was ‘concerned
that the rights to equality and non-discrimination are not comprehensively
protected in Australia in federal law’ and recommended that Australia
‘adopt Federal legislation, covering all grounds and areas of
discrimination to provide comprehensive protection for the rights to equality
and
�徱��Բ��پ��ǲ�’.^[321]
Similar concerns have been raised by the UN Committee on Economic, Social
and Cultural Rights, which recommended in 2009 that Australia ‘enact
federal legislation to comprehensively protect the rights to equality and
non-discrimination on all the prohibited
��ǳܲԻ��’.^[322]

(b) The protections
provided by federal laws are inadequate

There are many gaps in the protections provided by federal
anti-discrimination
laws.^[323]
For example, whilst purporting to prohibit discrimination on the basis of
sex, marital status, pregnancy, potential pregnancy and family responsibilities,
the Sex Discrimination Act has been recognised by the Senate Legal and
Constitutional Affairs Committee and the Australian Law Reform Commission as
falling well short of achieving comprehensive protection on these
grounds.^[324] The protection provided to men and women
varies.^[325] The protection against discrimination on the grounds of family responsibilities
(being limited to direct discrimination that results in dismissal from
employment) is minimal when compared to other areas of
discrimination.^[326] Students do
not have a remedy for sexual harassment if their harasser is a student or
teacher from a different school, and students under 16 do not have a remedy if
their harasser is a fellow
student.^[327] Likewise, the
protection afforded to contract workers and volunteers remains
unclear.^[328]
Similarly, the Race Discrimination Act does not provide protection against
discrimination and other unlawful conduct on the ground of religion.
Aside from gaps in protection, a number of practical obstacles further limit
the effectiveness of current federal anti-discrimination laws. For example, the
various tests for direct discrimination incorporate a requirement that an
applicant establish less favourable treatment compared with a hypothetical
‘comparator’. The practical application of the comparator, however,
has proved problematic due to difficulties in constructing the same or similar
circumstances for carrying out the
comparison.^[329] In particular, to
what extent should circumstances or characteristics related to the protected
attribute be included or excluded from the comparison, and to what extent can a
comparison be sensibly made where the relevant experience is unique to one group
only?^[330]
Practical difficulties also arise in relation to proving indirect
discrimination. Under the Disability Discrimination Act, for example, applicants
must establish that they have been required to comply with an unreasonable
requirement or condition with which they cannot comply, but with which a
substantially higher proportion of persons without their disability can comply.
This has raised difficulties and uncertainties where, for example, an applicant
can technically comply with the relevant requirement, but with additional
hardships not experienced by other persons without their
disability.^[331]
In addition, despite widely recognised difficulties in proving
discrimination,^[332] current
federal laws generally require the applicant to carry the onus of proof in
relation to all elements of
discrimination.^[333] This is
despite the reality that information relating to causation (such as the
respondent’s basis for treating the applicant in a particular way) is
typically within the control of the respondent, not the applicant.
Further, each of the laws establishes a proscriptive, negative-based
standard. Discriminatory conduct is prohibited, rather than
non-discriminatory or other positive conduct being required.^[334] Unlike
recent developments in the United Kingdom (discussed below), federal
anti-discrimination laws lack positive obligations to promote equality.
These gaps and limitations undermine Australia’s compliance with its
international obligations.

(c) There are
inconsistencies between current anti-discrimination laws

In addition to gaps within the laws themselves, there are various
idiosyncratic differences and inconsistencies between the four federal
anti-discrimination laws.
These inconsistencies make it hard for people to understand what their
rights are. They also complicate the process for legal advisers, judges,
advocates and those on whom the laws impose
obligations.^[335]
For example, each anti-discrimination Act adopts a different definition of
discrimination and includes different exceptions and defences. The areas of
public life sought to be regulated vary between the Acts, as does:
- the onus of proof in indirect discrimination
- the extent to which the Acts bind the Crown in right of the state
- the coverage provided to associates of persons with protected
  attributes
- the provisions relating to victimisation and vicarious and ancillary
  liability.
Even relatively simple aspects of the laws are inconsistent, such as the
meaning of ‘services’, or whether incitement to engage in
discrimination is a criminal offence.
Further, there are inconsistencies between the protections provided by
federal anti-discrimination laws and state and territory anti-discrimination
laws.

21.3 The
United Kingdom’s improvements to its equality laws

The recent experience of the UK provides valuable lessons for Australia.
Like Australia, anti-discrimination laws in the UK developed in a piecemeal
fashion over several decades. Also like Australia, each anti-discrimination law
borrowed heavily from its predecessors, but with differing peculiarities and
statutory language built up along the way.

(a) The United Kingdom’s review of equality
legislation

In 2005 the UK government made an election commitment to ‘modernise
and simplify equality
��𲵾��پ��ǲ�’.^[336] This
commitment set in motion ‘the most extensive review of equality in Britain
for over 30
��𲹰��’.^[337] The government commissioned an independent Equalities Review, aimed at
identifying the key social inequalities and barriers still facing UK society. It
also launched the Discrimination Law Review (DLR), tasked with ‘creating a
clearer and more streamlined equality legislation framework which produces
better outcomes for those who experience discrimination ... while reflecting
better regulation
��Գ��’.^[338]
The DLR identified a pressing need to simplify and streamline UK
anti-discrimination laws, noting:

Because the law has developed over
more than 40 years, different approaches have been taken at different times, and
the law is set out in many different places, in Acts of Parliament, regulations
and orders. There is widespread agreement that everyone who needs to understand
discrimination law will benefit from having it in a Single Equality Act which
simplifies the law as far as this can be
done.^[339]
The government further stated that its streamlining and simplification
reform proposals would be based on the following principles:
- existing protections should not be eroded
- common approaches should be adopted wherever practicable
- definitions, tests and exceptions should be practical and reflect the
  realities of people’s experience of discrimination and the way business
  operates
- British discrimination law should comply with the requirements of European
  law.^[340]

As a product of this ongoing process of reform, each of the separate
equality commissions have now been unified into a single Commission for Equality
and Human Rights, several new grounds of discrimination have been given
legislative protection and a range of positive duties aimed at combating
systemic discrimination have been imposed on public
authorities.^[341]
In addition, the government has committed itself to introducing a bill into
Parliament this year which will unify all UK anti-discrimination laws in a
single Equality Bill.^[342] The
bill is intended to strengthen existing legislative protections, simplify the
language of discrimination law and achieve uniform protection and provisions as
far as possible for all protected
grounds.^[343]

(b) Lessons from the
United Kingdom’s experience

A number of important lessons can be learned from the reform path followed
in the UK.
Take a measured approach to reforming
equality laws: Effective legislative reform of anti-discrimination laws is
complex. As the findings of the UK Equalities Review demonstrate, equality is a
complex social aim confounded by a myriad of complex
barriers.^[344] The DLR process has
already spanned over four years, yet a draft bill is still not completed. The
sheer volume of issues, possibilities, gaps and inconsistencies identified by
the DLR as warranting consideration and reform highlight the need for a measured
approach rather than a hasty legislative response.
Public consultation helps to reach the right
balance: The DLR process highlights the importance of adequate public
consultation. Anti-discrimination laws protect and impact on a wide variety of
social groups. The opportunity for input from all such groups is vital for
ensuring the achievement of an appropriate and workable legislative balance that
takes into account all competing needs and interests.
It is vital to have strong commitment from
government: Any review of anti-discrimination laws must be undertaken with a
firm government commitment to strengthening and improving those laws. As noted
above, the UK Government publicly committed that the review would not erode
existing protections.^[345] This
commitment was an essential reassurance to groups most vulnerable to
discrimination that hard-fought gains in legislative protection would not be
wound back under the guise of reform.
Any review must be comprehensive: As the
DLR has illustrated in the UK, each of the separate anti-discrimination laws
interacts with and informs the others. The same is true in Australia. The Senate
Standing Committee on Legal and Constitutional Affairs (Senate Standing
Committee) has recently conducted reviews of the Sex Discrimination Act as well
as a review of proposed changes to the Disability Discrimination Act and the Age
Discrimination Act.^[346] In 2004
the Productivity Commission also released its report of its review of the
Disability Discrimination
Act.^[347] The Commission welcomes
these initiatives. However, these reviews have highlighted the high level of
interactivity between our existing anti-discrimination laws. It is only through
reviewing all federal anti-discrimination laws together that the most effective
opportunities for harmonising provisions become truly apparent, as well as the
areas in which specifically tailored provisions are required.

21.4 Australia
should have a national inquiry into equality protection

The Commission is mindful that the Consultation Committee might feel
reluctant about recommending a further consultation process. However, the
Commission believes that a comprehensive inquiry into federal
anti-discrimination laws is an appropriate recommendation in light of the gaps
and flaws identified above and the importance of protecting the right to
equality.
Moreover, it is clearly beyond the scope of the present Consultation to
undertake the work required to effectively review Australia’s existing
anti-discrimination laws and offer an appropriate range of reform options. The
recent reviews of the Sex Discrimination Act and the Disability Discrimination
Act have already given a national inquiry an invaluable head-start. However, a
dedicated and comprehensive inquiry into all federal anti-discrimination laws is
required to properly finish the job.
The Commission recommends that a national inquiry on the protection of
equality in Australia should:
- identify and redress significant gaps within the existing federal
  anti-discrimination laws
- streamline statutory language and concepts
- initiate public discussion on whether additional grounds of discrimination
  warrant legislative protection
- lead the process of national harmonisation of federal, state and territory
  anti-discrimination laws
- consider other potential options for protecting and promoting the right to
  equality in Australia.

(a) The Australian Law
Reform Commission should conduct a national inquiry

In its recent review of the Sex Discrimination Act, the Senate Standing
Committee recommended that the ��鱨վ should
undertake a national inquiry to review Australia’s existing federal
anti-discrimination laws and consider the merits of a single Equality
Act.^[348]
While the Commission agrees with the Senate Standing Committee’s
recommendation that such a national inquiry needs to be undertaken, it does not
agree that the Commission is the most appropriate body to undertake that
inquiry.
First, the inquiry would inevitably need to examine the powers, functions
and institutional arrangements of the Commission itself.
Secondly, as the federal body responsible for receiving, investigating and
conciliating discrimination complaints, the Commission is an integral component
of the anti-discrimination regulatory system.
An independent body such as the Australian Law Reform Commission (ALRC)
would be a more appropriate choice as it would not be as vulnerable to
criticisms of having a vested interest in the outcome of the inquiry.
However, the Commission could assist such an inquiry by acting in an
advisory capacity. For example, the Commission could participate in an advisory
board to the ALRC, as it has done in other ALRC inquiries.

(b) A national inquiry should consider
harmonisation of federal and state anti-discrimination laws

The Commission notes that the Standing Committee of Attorneys-General has
already commenced a process for harmonising the federal and state
anti-discrimination jurisdictions generally. The Commission has previously
commented that there are obvious advantages to such harmonisation, provided that
it complies with certain guiding principles and does not erode existing
protections by adopting a ‘lowest common denominator’
approach.^[349]
A national review of Australia’s federal anti-discrimination laws
would provide an appropriate first step towards national harmonisation, by
formulating a ‘best practice’ model at the federal level to lead the
harmonisation process.

21.5 Australia
should have a single Equality Act

A key question for a national inquiry would inevitably be whether to unify
discrimination laws into a single Equality Act.
In its submission to the Senate Standing Committee’s review of the Sex
Discrimination Act, the Commission observed that there were potential concerns
with pursuing a single Equality Act. Those concerns include the consequences of
losing dedicated laws that have ‘represented important national statements
of the right to non-discrimination for particular groups within
��ǳ��ٲ�’.^[350]
The Senate Standing Committee similarly noted that certain submissions had
expressed concerns about a single Equality Act due to the ‘iconic
status’ of anti-discrimination laws for particular groups in the
community.^[351]
A national inquiry would provide an appropriate forum for these concerns to
be debated.^[352]
However, having had an opportunity to consider the issues further, the
Commission is increasingly of the view that a single Equality Act is the most
appropriate way to promote
equality.^[353]

(a) A single Equality
Act would simplify anti-discrimination law

A single Equality Act would consolidate the disparate anti-discrimination
laws into a single Act, with consistent drafting of definitions and key
concepts. It would also help to clarify that all forms of discrimination on all
relevant grounds have equal status.
Discrimination is a complex social phenomenon that cannot always be
categorised neatly into separate Acts. The current laws enable individuals to
identify more than one ground and/or Act in their discrimination complaint.
However, consolidating each of the grounds within one Act may assist victims of
intersectional discrimination to more easily conceptualise and articulate their
complaint by asserting each aspect of their discrimination with consistent
statutory language under the one Act.
While opinions differed in the UK as to the detail of the various DLR reform
proposals, the UK government reported that nearly all of the 4,226 submissions
to the DLR agreed with the overarching objective of streamlining the existing
anti-discrimination laws into a single Equality
Act.^[354] In addition to the
proposed amendments in the UK, a single Act omnibus model also already operates
in Canada and New Zealand, as well as in each of the Australian states and
territories.^[355] It therefore
offers a well tried and tested model for federal reform.

(b) Special purpose Commissioners should be
retained

To the extent that a single Equality Act might dilute the group-specific
focus of the current anti-discrimination laws, the Commission considers that
this underscores the importance of retaining the current statutory role of
special-purpose Commissioners within the Commission: the positions of Race, Sex,
Disability, and Aboriginal and Torres Strait Islander Social Justice
Commissioners.^[356] This would
help to ensure that the specific needs and interests of particular groups most
vulnerable to discrimination continue to be
represented.

Recommendation 33: The Australian Government
should refer to the Australian Law Reform Commission for inquiry and report the
question of how best to strengthen, simplify and streamline federal
anti-discrimination laws.

22 Australia’s
Constitution should be amended to protect and promote human rights

22.1 Introduction

The Commission believes that a statutory Human Rights Act, rather than a
constitutionally-entrenched bill of rights, is currently the best option for
human rights protection in Australia. However, certain reforms to the Australian
Constitution are long overdue.
Australia’s Constitution:
- does not recognise Indigenous peoples.
- permits laws to be made that discriminate on the basis of race.
The rights to equality and to be free from discrimination are so fundamental
to a fair society that the Australian Government should take steps towards
entrenching these rights in the Constitution.
In particular:
- Indigenous peoples should be recognised in the preamble to the Constitution
- section 25 should be removed from the Constitution
- the Constitution should be amended to guarantee racial equality and to
  proscribe discrimination on the ground of race
- there should be further dialogue about the need to amend the Constitution to
  guarantee a general right to equality and freedom from
  discrimination.

22.2 Recognise
Indigenous peoples in the preamble

The Constitution does not acknowledge Indigenous peoples as first peoples
and traditional owners of the land now known as Australia.
In fact, the Constitution makes no reference to Aboriginal and Torres Strait
Islander peoples at all.
There is enormous symbolic importance in recognising the rights and unique
status of Indigenous peoples in the preamble to the Constitution. It would go
some way towards redressing the historical exclusion of Indigenous peoples from
Australia’s foundational documents and national identity.
A new preamble would not have direct legal effect or give rise to
substantive rights or obligations. For this reason, it is of the utmost
importance that recognition of Indigenous peoples in the preamble to the
Constitution be in addition to, rather than instead of, other constitutional
reforms aimed at prohibiting discrimination.
A proposal for a new preamble to the Constitution was put to a referendum in
November 1999. The proposal included limited recognition of Indigenous peoples.
No state or territory recorded a majority vote in favour of the proposal, with
only 39.34% of the total Australian population voting in favour.
Part of the reason for the failure of this proposal was poor drafting and a
poor consultation process. Many Australians who support recognition of
Indigenous peoples in the preamble voted against the proposal because of
dissatisfaction with the language used.
A lesson from this failed attempt at constitutional change is that there
must be extensive, genuine engagement with Indigenous peoples and the broader
Australian community to determine the wording of any proposed preamble. A
failure to do so could undermine community support for constitutional change.

22.3 Remove
section 25 from the Constitution

Section 25 of the Constitution reflects a time when there were racist
restrictions on the right to vote. It provides that, for the purposes of
determining the composition of the House of Representatives:

...
if by the law of any State all persons of any race are disqualified from voting
at elections for the more numerous House of the Parliament of the State, then,
in reckoning the number of the people of the State or of the Commonwealth,
persons of that race resident in that State shall not be counted.
The section clearly recognises that states may exclude voters on racial
lines. As the Council for Aboriginal Reconciliation has stated, ‘[s]uch a
provision is inappropriate for any democratic nation, particularly one whose
people come from many different
back��ǳܲԻ��’.^[357] Similarly, the 1988 Constitutional Commission described section 25 as
‘odious’ and recommended that it be
repealed.^[358]
A constitutional provision that contemplates denial of the right to vote on
the basis of race has no place in an inclusive, multicultural Australia.
The Commission therefore believes that section 25 should be removed from the
Australian Constitution.

22.4 Protect
racial equality in the Constitution

The removal of section 25 should be accompanied by the insertion of a clause
to guarantee racial equality and to prohibit racial discrimination.
Neither a statutory Human Rights Act, nor an Equality Act (discussed in
sections 20 and 21 above) would prevent Parliament from introducing laws that
discriminate on the basis of race.
For example, the federal Parliament exercised its power to override the
operation of the Racial Discrimination Act when it passed the Northern Territory
Emergency Response legislation (see the case study in section 11.1 above).
Constitutional protection of racial equality would prevent legislative
protections against racial discrimination from being overridden or suspended by
Parliament. It would complement and strengthen the protections contained in a
Human Rights Act and federal anti-discrimination laws.
Constitutional reform to prohibit racial discrimination has been a constant
and prominent feature of debates about protecting the rights of Indigenous
peoples. For example, the Council for Aboriginal Reconciliation recommended in
its final report that ‘[t]he Commonwealth Parliament prepare legislation
for a referendum which seeks to ... introduce a new section making it unlawful
to adversely discriminate against any people on the grounds of
��’.^[359]
The Commission recommends constitutional reform to prevent discrimination
against Indigenous peoples, as discussed below.

(a) Section
51(xxvi) could be amended

Section 51(xxvi) of the Constitution authorises the Parliament to pass
legislation with respect to the ‘people of any race for whom it is deemed
necessary to make special ��ɲ�’.
The question of whether section 51 (xxvi) empowers the Parliament to enact
laws that are detrimental to Indigenous peoples is not considered fully
settled.^[360] However, Chief
Justice French has commented that the ‘weight of High Court authority
supports the view that s 51(xxvi) authorises both beneficial and adverse
��ɲ�’.^[361]
One option for protecting racial equality could be to amend section 51(xxvi)
to ensure that the Parliament could only make racially-specific laws ‘for
the benefit’ of the people of a particular race.
However, the question of what constituted a ‘benefit’ could be
subjective and controversial.
Further, Parliament could rely upon other powers to enact legislation that
discriminated on the basis of race, such as the ‘Territories power’
contained in section 122 of the
Constitution.^[362]

(b) It
would be better to add a new racial equality and non-discrimination clause

An alternative, and preferable, option is for the Constitution to be amended
to include a clause prohibiting discrimination on the basis of race. This would
mean that Parliament would not have the power to introduce laws that
discriminate on racial grounds.
A clause protecting racial equality and prohibiting discrimination on the
basis of race would be consistent with Australia’s international human
rights obligations. In 2005, the UN Committee on the Elimination of Racial
Discrimination expressed concern ‘about the absence of any entrenched
guarantee against racial discrimination that would override the law of the
Commonwealth’ and recommended that Australia ‘work towards the
inclusion of an entrenched guarantee against racial discrimination in its
domestic
��’.^[363]

22.5 Initiate
dialogue about general equality protection in the Constitution

The Commission believes that there should be a national dialogue about
whether to reform the Australian Constitution to include a general guarantee of
the right to equality (that is, to protect the right to equality for all people
in Australia, not just members of different racial groups).
There will need to be extensive community consultation and engagement in
order to build the understanding and awareness necessary for a proposal to amend
the Constitution to succeed at a referendum.
As the Australian Law Reform Commission has observed, there are
‘formidable obstacles to amending Australia’s Constitution. ...
Australia’s record of changing its Constitution through this process is
poor. Without support from both major political parties a referendum is likely
to fail’.^[364]
The Commission recognises that complex questions will need to be examined
before a proposal for constitutional protection of equality can be put to the
Australian people.
The Commission recommends that there be a national inquiry about the need
for constitutional protection of equality, to properly consider key questions
such as:
- the exact wording of a constitutional clause to protect the right to
  equality
- the extent to which specific grounds of protection should be listed
- whether the clause should include any possible limitations on the right to
  equality.

Recommendation 34: Indigenous peoples
should be recognised in the preamble to Australia’s Constitution.

Recommendation 35: The Australian Government should begin a process of
constitutional reform to protect the principle of equality for all people in
Australia:

section 25 should be removed from the Constitution
the Constitution should be amended to guarantee racial equality and
proscribe discrimination on the basis of race
there should be a comprehensive national inquiry considering:
- the exact wording of a constitutional clause to protect the right
  to equality
- the extent to which specific grounds of protection should be
  included
- whether the clause should include any possible
  limitation.

23 Enhance
human rights education in Australia

23.1 Introduction

Human rights education is fundamental to building a human rights culture
where the rights of all people in Australia are understood and respected.
As discussed above in section 20.13, a Human Rights Act should be
accompanied by a broad human rights education program aimed at the general
community, the public sector and educational institutions.
However, other forms of human rights education are also needed, including
programs aimed at:
- the broad community
- federal public servants and administrative decision makers
- schools and universities.

23.2 Australia
has an international obligation to provide human rights education

(a) Australia’s general obligation to provide
human rights education

Australia’s duty to provide human rights education is set out in
several international human rights
agreements.^[365]
The Universal Declaration states that ‘[e]ducation shall be directed
to ... the strengthening of respect for human rights and fundamental
�ڰ��ǳ��’.^[366]
Further, article 29 of the CRC requires Australia to direct children’s
education to:
- the development of respect for human rights and fundamental freedoms, and
  for the principles enshrined in the Charter of the United Nations
- the development of respect for the child's parents, his or her own cultural
  identity, language and values, for the national values of the country in which
  the child is living, the country from which he or she may originate, and for
  civilizations different from his or her own
- the preparation of the child for responsible life in a free society, in the
  spirit of understanding, peace, tolerance, equality of sexes, and friendship
  among all peoples, ethnic, national and religious groups and persons of
  indigenous origin.
In addition, the UN Human Rights Committee has said that Australia
should:

Consider adopting a comprehensive plan of action for human
rights education including training programmes for public officials, teachers,
judges, lawyers and police officers on rights protected under the Covenant and
the First Optional Protocol. Human rights education should be incorporated at
every level of general
education.^[367]

(b) The World Program of Human Rights
Education

Australia has also made commitments under the World Program for Human Rights
Education (WPHRE).
The WPHRE was initiated in January 2005 as a follow up to the United Nations
Decade for Human Rights Education (1995-2005). The Australian Government has
expressed broad support for this program.
The first phase of the WPHRE was extended to 2009 so that UN Member States
could have a four year period to report on progress in developing national
programs for human rights education. Reports for this period are due in
September 2009. A second phase of the World Programme begins on 1 January
2010.

23.3 Human
rights education in the community

As outlined in section 20.13, if Australia adopts a Human Rights Act, there
should be broad and accessible community education about human rights and the
operation of the Act.
However, community education about human rights is important regardless of
whether Australia adopts a Human Rights Act.
Broad education about human rights, and the relevance of human rights to
people’s lives, should lead to a culture of increased tolerance and
respect. Education should focus on ensuring that all people in Australia
understand their own rights and their responsibility to respect the rights of
others.
It is also important to develop specific human rights education initiatives
to address the needs of communities facing particular human rights issues. For
example, the Commission was funded in June 2007 by the Attorney-General’s
Department to develop and deliver training aimed at preventing family violence
in Indigenous communities. This initiative was to achieve one of the aims of the
Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities
and the COAG Communiqué of July 2006:

COAG has... agreed to
invest in community legal education to ensure Indigenous Australians are
informed about their legal rights, know how to access assistance and are
encouraged to report incidents of violence and
abuse.^[368]
In March, August and December 2008 the Commission delivered training to
Community Legal Educators across Australia. To date, approximately half of the
existing Family Violence Prevention Legal Services of Australia have had access
to this training.
The training program provides 40 hours of face to face training and resource
materials relevant to family violence and tailored to the legislation and
guidelines of each state and territory. The course examines the legislation
relevant to family violence including child abuse and child neglect, sexual
assault, physical assault and threatening and other violent behaviours. It
covers protocols and explanations from each state and territory on the Child
Protection Process, Family Violence Orders and duty of care and reporting
guidelines. The course also covers content about Australia’s justice
system and courts; Indigenous customary laws and practice; human rights
provisions relevant to violence prevention and community development theory and
practice.
The training program has been mapped against the Certificate III,
Certificate IV and the Diploma courses in National Indigenous Legal
Advocacy. The Commission is the copyright holder of these nationally
accredited courses. Upon successful completion of all training assessment tasks,
participants are issued with a certificate of completion which supports
applications for recognition of prior learning.
The two evaluations of the training program contain evidence of a high
degree of satisfaction with the quality of the training, the relevance of the
materials and the delivery of the course content.
Unfortunately the government funding was for a limited period and there are
no additional funds for the future. This means that the remaining Family
Violence Prevention Legal Services of Australia will not have access to the
training. In addition, there is evidence of a high degree of interest in the
training outside of this sector. The Commission has had requests for the
training from Indigenous Justice Groups, state government violence prevention
workers, paralegal employees, non-government organisations, training
institutions and government departments.
If the Commission received funding aimed at human rights education in
future, the Commission could deliver programs similar to that described above.

23.4 Human
rights education for federal public servants and administrative decision-makers

Education and training about human rights is also important for federal
public servants and administrative decision-makers regardless of whether or not
Australia adopts a Human Rights Act.
As outlined in section 20.11, experience in other jurisdictions demonstrates
that understanding about human rights leads to better public service delivery.
Importantly, this contributes to preventing breaches of human rights before they
occur.

23.5 Human
rights education in Australian schools

‘Human rights’ does not exist as a discrete subject in any state
or territory curricula. However, an understanding of rights and responsibilities
– and their relevance to young people as active citizens – is an
identified learning outcome in a range of secondary school subjects.
In schools, human rights is embedded in the ‘Civics and
Citizenship’ National Statements for Learning, which all states have
either added on to or used to underpin their Society and Environment curriculum
area. However, future funding for ‘Civics and Citizenship’ from the
Department of Education, Employment and Workplace Relations is unclear after
2009.
On 5 December 2008, the Melbourne Declaration of Educational Goals for Young
Australians was issued by all Australian Ministers for
Education.^[369] It includes a
commitment to supporting all young Australians to become active and informed
citizens, and it sets the direction for Australian schooling over the next ten
years.
The current transition towards a national curriculum includes key learning
areas of English, Maths, Science and History. Human rights content overlaps with
each of these areas, particularly History. Developed by the interim National
Curriculum Board, a framing paper on national curriculum in History notes the
links between History and Civics and Citizenship education, including the role
played by human rights principles and institutions.
Human rights also has a strong presence in all subjects within the key
learning areas of Society and Environment (for example, Geography and Legal
Studies), as well as in Career Education and Personal Development, Health and
Physical Education.
However, currently there is no coherent approach to the topic of
‘human rights’ throughout other curriculum in the states and
territories. Educators of all curriculum areas require professional support to
adequately teach the human rights content.
There are several human rights education centres at the university level.
However, none of these has a formally recognised national role other than the
National Centre for Human Rights Education (NCHRE). The NCHRE was established at
RMIT University in Melbourne and launched in December 2007.
There is currently no recognised ‘clearing house’ for human
rights education material in Australia. While there are numerous published
resources, there are no official distribution channels, and no support for the
professional development of educators.

(a) The
Commission’s education materials for Australian schools

The Commission has specific functions relating to human rights
education:
- to promote an understanding and acceptance, and the public discussion, of
  human rights in Australia
- to undertake research and educational programs for the purpose of promoting
  human rights.
The Commission has a strong track record of working with Australia’s
state and territory education departments, schools and community organisations
to promote an understanding of, and commitment to, human rights education.
The Commission has developed practical human rights education resources and
programs through its Human Rights Education Program. The program is guided by a
clear set of education principles and learning outcomes, and the approach
supports the goals and direction of the WPHRE.
The Human Rights Education Program includes a range of interactive,
resource-rich, web-based learning modules for use in the classroom with students
ranging in age from years 10 to 17. The Commission has linked these core human
rights education modules with curriculum frameworks from Education Departments
across each Australian state and territory. Links have been established in a
range of key learning areas: Studies of Society and Environment (especially
Aboriginal Studies and Australian Studies), English, Civics and
Citizenship/Discovering Democracy, Geography, History, and Drama.
The Commission's human rights education resources are available online at:
.
Unfortunately, the Commission’s current budget insufficient to allow
production of a full range of human rights education materials, or adequate
distribution and promotion of these materials.

(b) Ways to improve
human rights education in Australian schools

In order to fulfil the requirements of the WPHRE, the Commission recommends
that there be an audit (situational analysis) of all of the human rights
education initiatives (and curriculum links) that currently exist in Australian
education systems.
This situational analysis should be the precursor to developing a national
plan for human rights education.
Some of the areas that could be covered in a national plan for human rights
education include:
- consideration on how best to incorporate human rights education across the
  curriculum
- mechanisms to achieve pre-service and in-service human rights training and
  professional support for all teachers in Australian schools
- increased production, distribution and promotion of human rights education
  curriculum materials.

Recommendation 36: The
Australian Government should resource a significantly enhanced nation-wide human
rights education program.

24 Enhance
the role of the ��鱨վ

The Consultation Committee’s Background Paper acknowledges the role
played by the Commission in protecting and promoting human rights in Australia.
It invites people to consider the following questions:
- Should the jurisdiction of the Commission be expanded to enable it to
  inquire into and conciliate a broader range of human rights
  complaints?
  
  The Commission’s answer: Yes.
- Should the Commission have a greater role in scrutinising legislation for
  human rights compatibility?
  
  The Commission’s answer:
  Yes.
- How should the Australian Government respond to the Commission’s
  recommendations, such as those contained in Commission reports that are tabled
  in
  Parliament?^[370]
  
  The
  Commission’s answer: Formally and promptly.

The Commission has various statutory functions, set out in the HREOC Act,
and outlined in section 16 of this submission. They are wide ranging, and enable
the Commission to undertake a broad range of activities aimed at the promotion
and protection of human rights. However, the Commission’s ability to
promote and protect human rights is limited for the reasons discussed in section
16 of this submission.
As Australia’s national human rights institution, the Commission could
play a significant role in implementing and promoting a Human Rights Act, if one
was enacted. Section 20.15 of this submission discusses in detail the
Commission’s potential roles under a Human Rights Act, including:
- promoting public awareness and understanding of a Human Rights Act
- scrutinising bills and laws for compatibility with a Human Rights Act
- investigating and conciliating complaints under a Human Rights Act
- intervening in cases involving a Human Rights Act
- notifying the Attorney-General if a court finds that it cannot interpret a
  law consistently with the Human Rights Act
- reviewing policies and practices of public authorities under a Human Rights
  Act
- preparing an annual report on the operation of a Human Rights
  Act.
Regardless of whether Australia adopts a Human Rights Act, there is a strong
case for enhancing the functions and powers of the Australian Human Rights
Commission, as outlined below.

24.1 Empower
the Commission to scrutinise bills and laws for human rights
compatibility

Section 16 of this submission outlines the limitations of the
Commission’s current roles in scrutinising bills and laws for human rights
compatibility.
Currently the Commission can examine existing laws for their compatibility
with human rights (as defined in the HREOC
Act).^[371] However, the Australian
Government is not required to respond to a Commission report which shows that a
law is incompatible with human rights. Further, the Commission can only examine
bills at the Minister’s request. It has never been requested to do so.
As suggested in section 20.15, if Australia adopts a Human Rights Act, the
Commission should be given the power to examine whether bills and laws are
compatible with the human rights set out in the Human Rights Act.
The examination of laws before they are passed is a powerful tool for
preventing human rights breaches from occurring. The Commission should therefore
be given the power to examine bills for their compatibility with human rights
regardless of whether Australia has a Human Rights Act. This power should be
discretionary and self-initiated.
When the Commission examines a bill or a law and reports to Parliament, the
Attorney-General should be required to table both the Commission’s report,
as well as a government response, within a specified time period.

24.2 Empower
the Commission to intervene in cases that raise human rights issues

Section 20.15 of this submission outlines the Commission’s current
intervention and amicus roles, and suggests that the Commission should
have the power to intervene in court or tribunal proceedings involving the
interpretation or application of a Human Rights Act.
Regardless of whether Australia adopts a Human Rights Act, the Commission
should have the power to intervene, as of right, in all cases that raise
significant human rights issues.
This power would allow the Commission to bring its human rights expertise to
cases involving significant human rights issues. It would provide the Commission
with an important opportunity to inform and assist lawyers, judges and
complainants about the relevance of human rights to legal issues.

24.3 Empower
the Commission to consider a broader range of human rights

As discussed in section 16.2, the Commission’s human rights functions
are currently limited by the definition of ‘human rights’ in section
3 of the HREOC Act, which includes those rights set out in the instruments
scheduled to the HREOC Act and other designated ‘relevant international
��Բ��ٰ��ܳ��Գٲ�’.
If Australia adopts a Human Rights Act, the Commission should have the power
to conduct its functions with respect to all of the rights set out in that
Act.
However, regardless of whether Australia adopts a Human Rights Act, the
Commission believes that its jurisdiction should be expanded to cover the human
rights in the:
- ICESCR^[372]
- CAT
- Declaration on the Rights of Indigenous Peoples.
Australia is already a party to these treaties, and has expressed its
support for this declaration.
Section 47 of the HREOC Act enables the Attorney-General to declare an
instrument which has been ratified by Australia (or a declaration that has been
adopted by Australia) to be an international instrument relating to human rights
for the purposes of the HREOC Act.
The legal effect of declaring an instrument under section 47 is that the
rights contained within that instrument will then fall within the definition of
‘human rights’ in sections 3 and 46A of the HREOC Act, and the
Commission’s statutory ‘human rights’ functions can then be
exercised in relation to the rights contained in the declared instruments.
Declaring these additional instruments under the HREOC Act would mean that
the Commission could properly promote public awareness and understanding of the
rights contained in these instruments as well as inquire into, and help resolve,
a broader range of human rights complaints.
The Commission could play a significant role promoting economic, social and
cultural rights. This would be particularly important if these human rights were
excluded from court action under a Human Rights Act.
The Commission currently has the power to investigate and conciliate some
complaints of economic, social and cultural rights. The Commission can receive
complaints about breaches of the rights set out in the CRC, if the complaint is
against the Commonwealth or one of its agencies. The CRC includes a wide range
of economic, social and cultural rights.
Further, the Commission has extensive expertise in analysing and reporting
to Parliament about the protection and promotion of economic, social and
cultural rights. For example:
- The Aboriginal and Torres Strait Islander Social Justice Commissioner has
  powers to consider economic, social and cultural rights in the annual Social
  Justice Reports. These reports provide comprehensive analyses of the protection
  and promotion of the human rights of Indigenous peoples.
- A last resort?, the report of the National Inquiry into ��鱨վ in
  Immigration Detention included consideration of all of the economic, social and
  cultural rights contained in the
  CRC.^[373]
- The National Inquiry into Rural and Remote Education included detailed
  analysis of the protection of the right to education for children in rural and
  remote Australia.^[374]
Finally, the Commission has conducted comprehensive policy work on economic,
social and cultural rights such as the right to health in the Close the Gap
campaign. The Commission’s involvement in this campaign is described in
Appendix 2 to this submission.

24.4 Empower
the Commission to investigate human rights breaches wherever they
occur

Under the HREOC Act, the Commission has the power to inquire into acts and
practices that may be inconsistent with or contrary to human
rights.^[375]
On an initial reading, this appears to be quite a broad function, allowing
the Commission to conduct inquiries into a wide range of human rights issues in
Australia. However, because of the restrictive way this power is defined in the
HREOC Act, the Commission’s human rights inquiry function is effectively
limited to actions done by or on behalf of the federal
government.^[376]
This limits the Commission’s ability to conduct formal inquiries into
systemic and widespread human rights issues concerning state or territory laws
or bodies other than the federal government. For example, the Commission’s
jurisdiction does not extend to private employers, state laws and practices, or
other bodies that may be acting in breach of human rights.
This can be compared to the Commission’s power to inquire into
workplace discrimination matters, which extends to conducting inquiries into
systemic practices that may constitute discrimination, including the acts and
practices of state governments and private
companies.^[377]
The Commission believes that its formal inquiry function under the HREOC Act
should empower it to inquire into human rights issues or concerns, regardless of
where in Australia they occur and regardless of whether they occur under a
state, territory or federal law. This would allow the Commission to address a
broader range of systemic human rights issues across Australia.
Under this broader inquiry function, the Commission should retain its
current inquiry-related powers. These include the power to require the giving of
information, the production of documents and the examination of
witnesses.^[378]

24.5 Provide
enforceable remedies for complaints made under the HREOC Act

As outlined in section 16.5, currently there are no enforceable remedies for
complaints of human rights breaches made under the HREOC Act.
This means that a person who makes a complaint of unlawful discrimination
(for example discrimination on the basis of disability) against a federal
government agency can commence court proceedings and has access to an
enforceable remedy. However, a person who makes a complaint against the same
government agency, of a breach of a human right not covered by the
anti-discrimination laws (for example, the right to be free from cruel, inhuman
and degrading treatment or punishment), does not have access to an enforceable
remedy.
The protection of human rights would be significantly enhanced if there were
enforceable remedies for complaints made under the HREOC Act.
If a complaint under the HREOC Act cannot be conciliated, the complainant
should be able to commence proceedings in the Federal Court or the Federal
Magistrate’s Court.

24.6 Require
the government to respond to Commission recommendations

Currently, there is no obligation on the government to respond to Commission
reports that are tabled in Parliament, including those regarding:
- individual complaints
- inquiries into systemic human rights issues (for example A last
  resort?, the report of the National Inquiry into ��鱨վ in Immigration
  Detention)
- the annual Social Justice Report and Native Title Report.
Commission reports about individual complaints can include recommendations
for preventing repetition of an act or continuation of a practice, as well as
the payment of compensation or other
remedies.^[379] However, as
described above the Commission cannot enforce its recommendations, and the
Australian Government is not required to respond to them.
Similarly, the Australian Government is not required to respond to the
Commission’s other human rights recommendations.
The Commission believes that, at a minimum, the Australian Government should
be required to provide a response to the Commission’s individual complaint
reports indicating how the government intends to address the Commission’s
recommendations. This could be achieved by amending the HREOC Act to require
that the Attorney-General table a response to the Commission’s reports in
Parliament within a set period, for example six months after the report is
tabled.
In the case of other reports prepared by the Commission under one of its
statutory functions and subsequently tabled in federal Parliament, the
Attorney-General should be required to table a response in Parliament within a
set period of time, again possibly six months after the report is
tabled.^[380] For example, this
would include:
- the annual Social Justice Report and Native Title Report, prepared by the
  Aboriginal & Torres Strait Islander Social Justice Commissioner
- reports following National Inquiry processes
- reports prepared by the Commission and tabled in Parliament under any new
  statutory functions granted to the Commission under a Human Rights
  Act.
The government response should indicate how the government intends to
address the recommendations made by the Commission in its report.
The Senate Legal and Constitutional Committee has made recommendations to
this effect in previous inquiries. For example, in its 2000 inquiry into
progress towards reconciliation the Committee recommended that ‘the
Government should be required by statute to respond to the reports of the
Aboriginal and Torres Strait Islander Social Justice
��ǳ��ǲԱ��’.^[381]

24.7 Better
resource the Commission’s education work

As outlined in section 23, one of the major gaps in the protection of human
rights in Australia is that many people are currently unaware of what human
rights are and how they are (or are not) protected in Australia. There is a need
to build greater awareness through human rights education in schools,
universities and the broader community.
Regardless of whether Australia adopts a Human Rights Act, human rights
education in Australia should be significantly enhanced. The Australian
Government should invest adequate resources in ensuring that the Commission can
fully and effectively carry out its statutory human rights education functions.

24.8 Financially
support the Commission to properly carry out its functions

(a) The Commission does
not have adequate resources to fulfil its existing functions

The Commission currently has a broad range of statutory functions related to
promoting and protecting human rights in Australia, which it fulfils to the best
of its ability. In practice, however, the Commission’s capacity to fulfil
its statutory functions is often constrained by insufficient funding.
The Commission has been consistently underfunded over the past decade or
more. In 1996, the Commission’s funding was reduced by 40% (applied over a
four year period). The Commission had to close state and territory offices, and
the number of Commissioners was reduced from six to three. This has left
Commissioners doubling up on portfolios.
The Commission faced another significant budget cut in the 2008-2009
financial year. The Commission’s budget appropriation for the year was
$13.55 million, representing a 12.5% cut compared to the previous
year.^[382] To accommodate this
decrease, each of the units across the Commission was forced to reduce its
operating budget by 14.5%.^[383] In
the 2009-2010 financial year the Commission’s operating budget will be
discounted by 19% (from the base level of 2007-2008).

(b) If new functions
are added, new funding must be provided

Under current funding levels, the Commission is struggling to carry out its
existing functions. It does not have the capacity to undertake new functions in
addition to its existing ones. Therefore, if the Commission is granted new
functions (under a Human Rights Act or otherwise) the Australian Government will
need to ensure that sufficient additional resources are provided to the
Commission to enable it to carry out those functions.

Recommendation 37: The Australian Government should enhance
the powers, functions and funding of the ��鱨վ,
particularly if a Human Rights Act is adopted. Any new functions should be
accompanied by appropriate funding.

Recommendation 38: The Commission’s existing functions and
powers should be enhanced as follows:

The Commission’s power to examine bills for their compatibility with
human rights should be a discretionary, self-initiated power. When the
Commission examines a bill or law and reports to Parliament, the
Attorney-General should be required to table the Commission’s report as
well as a government response within a specified time period.
The Commission should have the power to intervene, as of right, in cases
that raise significant human rights issues.
The Attorney-General should give consideration to declaring the following
instruments under section 47(1) of the HREOC Act:
- ICESCR
- CAT
- Declaration on the Rights of Indigenous Peoples.
The Commission’s inquiry function under the HREOC Act should be
broadened to empower the Commission to inquire into human rights issues or
concerns regardless of where in Australia they occur, or whether they occur
under a state, territory or federal law.
For reports prepared by the Commission under one of its statutory functions
and subsequently tabled in federal Parliament, the Attorney-General should be
required to table a response in Parliament within a fixed period indicating how
the government intends to address the Commission’s recommendations. This
would include:
- reports prepared by the Commission after conducting an inquiry
  under section 11(1)(f) of the HREOC Act
- the annual Social Justice Report and Native Title Report, prepared
  by the Aboriginal & Torres Strait Islander Social Justice Commissioner
- reports prepared by the Commission and tabled in Parliament under
  any new statutory functions granted to the Commission under a Human Rights
  Act.

Recommendation 39: If a complaint under the
HREOC Act cannot be conciliated, the complainant should be able to commence
proceedings in the Federal Court or the Federal Magistrate’s Court.

Recommendation 40: The Australian Government should invest adequate
resources in ensuring that the Commission can fully and effectively carry out
its statutory education functions.

Recommendation 41: The Australian Government should provide adequate
resources in order to ensure that the Commission can fully and effectively carry
out its current statutory functions.

^[1] International Covenant on
Civil and Political Rights (ICCPR), 1966, art 26. At (viewed 22 May 2009).

^[2] ICCPR,
above, art 2(1); International Covenant on Economic, Social and Cultural
Rights (ICESCR), 1966, art 2(2). At (viewed 22 May 2009).

^[3] Universal Declaration of Human Rights (Universal Declaration), GA
Resolution 217A(III), UN Doc A/810 (1948), preamble. At (viewed 22 May 2009).

^[4] Universal
Declaration, above, preamble.

^[5] ICCPR, note 1,
preamble; ICESCR, note 2,
preamble.

^[6] Australia is
currently not a party to another major international human rights treaty, the International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families, 1990. At (viewed 29 May 2009).

^[7] International Convention on the Elimination of All Forms of Racial
Discrimination (CERD), 1965. At (viewed 29 May 2009).

^[8] ICESCR,
note 2.

^[9] ICCPR, note 1.

^[10] Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), 1979. At (viewed 29 May 2009).

^[11] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT), 1984. At (viewed 29 May 2009).

^[12] Convention on the Rights of the Child (CRC), 1989. At (viewed 29 May 2009).

^[13] Convention on the Rights of Persons with Disabilities (Disability
Convention), 2006. At (viewed 29 May 2009).

^[14] Convention on the Prevention and Punishment of the Crime of Genocide,
1948. At (viewed 29 May 2009).

^[15] Convention relating to the Status of Refugees (Refugee Convention), 1951.
At (viewed 29 May 2009).

^[16] Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery, 1956. At (viewed 29 May 2009).

^[17] Protocol relating to the Status of Refugees, 1967. At (viewed 29 May 2009).

^[18] Convention relating to the Status of Stateless Persons, 1954. At (viewed 29 May 2009).

^[19] Convention on the Reduction of Statelessness, 1961. At (viewed 29 May 2009).

^[20] Convention concerning Discrimination in respect of Employment and Occupation
(ILO No. 111), 1958. At (viewed 29 May 2009).

^[21] Optional Protocol to the International Covenant on Civil and Political
Rights, 1966. At (viewed 29 May 2009).

^[22] Second Optional Protocol to the International Covenant on Civil and Political
Rights, aiming at the abolition of the death penalty (Second Optional
Protocol to the ICCPR), 1989. At (viewed 29 May 2009).

^[23] Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict, 2000. At (viewed 29 May 2009).

^[24] Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography, 2000. At (viewed 29 May 2009).

^[25] Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women, 1999. At (viewed 29 May 2009).

^[26] Optional Protocol to the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (OPCAT), 2002. At (viewed 29 May 2009). The Australian Government signed OPCAT on 19 May 2009, but
has not yet acceded to it.

^[27] Optional Protocol to the Convention on the Rights of Persons with
Disabilities, 2006. At (viewed 29 May 2009).

^[28] Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights (OPICESCR), UN Doc A/RES/63/117 (2008). At (viewed 29 May 2009). The OPICESCR was adopted by the UN General Assembly on 10
December 2008, and is currently scheduled to open for signature on 24 September
2009.

^[29] International Labor
Organisation Convention 169, 1989. At (viewed 5 June).

^[30] Universal
Declaration, note 3.

^[31] See, for example, L Sohn, ‘T�� New International Law: Protection of the
Rights of Individuals Rather Than States’ (1982) 32 American University
Law Review 1, p 16.

^[32] Universal Declaration, note 3, preamble.

^[33] United Nations
Declaration on the Rights of Indigenous Peoples (Declaration on the Rights
of Indigenous Peoples), GA Resolution 61/295, UN Doc A/61/L.67 (2007). At (viewed 29 May 2009).

^[34] Minister for Families, Housing, Community Services and Indigenous Affairs, the
Hon J Macklin MP, Statement on the United Nations Declaration on the Rights
of Indigenous Peoples (Speech delivered at Parliament House, Canberra, 3
April 2009). At (viewed 29 May 2009).

^[35] Declaration on the Rights of Indigenous Peoples, note 33, art
1.

^[36] Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on Religion
or Belief, GA Resolution 36/55, UN Doc A/RES/36/55 (1981). At (viewed 29 May 2009).

^[37] Declaration on the Rights of Mentally Retarded Persons, GA Resolution
2856 (XXVI), UN Doc A/RES/26/2856 (1971). At (viewed 29 May 2009).

^[38] Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, GA Resolution 47/135, UN Doc
A/RES/47/135 (1992). At (viewed 29 May 2009).

^[39] For
the purposes of this submission, the phrase ‘the major international human
rights treaties’ refers to the ICCPR, ICESCR, CERD, CEDAW, CAT, CRC and
the Disability Convention.

^[40] ICCPR, note 1,
art 2; ICESCR, note 2, art 2; CERD, note 7, art 2; CEDAW, note 10, arts 2, 3; CAT, note 11, art 2; CRC, note 12, art 4;
Disability Convention, note 13, art
4.

^[41] ICCPR, above, art
2(2).

^[42] UN Human Rights
Committee, General Comment No 31: Nature of the General Legal Obligation
Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13
(2004), para 13. At (viewed 28 May 2009).

^[43] UN
Human Rights Committee, above, para
14.

^[44] See also ICESCR, note 2, art
2(1)(a).

^[45] ICCPR, note 1, art 2; ICESCR,
note 2, art 2;
CERD, note 7, art
2; CEDAW, note 10, art 2, 3; CAT, note 11, art 2; CRC, note 12, art 4; Disability
Convention, note 13, art
4.

^[46] ICESCR, note 2, art 2(1); UN
Committee on Economic, Social and Cultural Rights, General Comment 3: The
nature of States parties obligations (Art. 2, para. 1 of the Covenant), UN
Doc E/1991/23, annex III at 86 (1991), paras 3, 4, 7. At (viewed 29 May 2009).

^[47] ICESCR, note 2,
art 2(1); UN Committee on Economic, Social and Cultural Rights, above, para
9.

^[48] UN Committee on Economic,
Social and Cultural Rights, above, paras 2, 3,
7.

^[49] UN Committee on Economic,
Social and Cultural Rights, General Comment 14, UN Doc E/C.12/200/4
(2000), paras 43, 44.

^[50] ICCPR,
note 1, art 2(1);
ICESCR, note 2,
art 2(2); CRC, note 12, art
2(1).

^[51] CRC, above, art
2(1).

^[52] CERD, note 7, art 6; CAT, note 11, art 14;
CEDAW, note 10,
art 2(c); ICCPR, note 1, art 2(3); ICESCR, note 2, art 2(1); CRC, note 12, art 4;
Disability Convention, note 13, art 4; See also Committee on Economic,
Social and Cultural Rights, General Comment 3, note 46, para
5.

^[53] UN Human Rights
Committee, General Comment No 31, note 42, para
16.

^[54] UN Committee on
Economic, Social and Cultural Rights, General Comment No 9: The domestic
application of the Covenant, UN Doc E/C.12/1998/24,CESCR (1998), para 9. At (viewed 29 May 2009). See also UN Committee on Economic, Social and Cultural
Rights, General Comment 3, note 46, para
5.

^[55] State party reports are
required once every five years under the ICCPR, ICESCR and the CRC; once every
four years under CAT, CEDAW and the Disability Convention; and once every two
years under CERD.

^[56] See ICCPR,
note 1, art 40;
ICESCR, note 2,
art 16; CERD, note 7, art 9; CEDAW, note 10, art 18; CAT, note 11, art 19; CRC, note 12, art 44;
Disability Convention, note 13, art
35.

^[57] Inter-Committee
Technical Working Group, Harmonized guidelines on reporting under the
international human rights treaties, including guidelines on a common core
document and treaty-specific documents, UN Doc HRI/MC/2006/3 (2006), para
29. At (viewed 29 May 2009).

^[58] Inter-Committee Technical Working Group,
above.

^[59] The Commission
recognises the diversity of the cultures, languages, kinship structures and ways
of life of Aboriginal and Torres Strait Islander peoples. Aboriginal and Torres
Strait Islander peoples are primarily referred to as ‘Indigenous
peoples’ in this document. This is because the term carries a meaning in
international law. In particular, the use of ‘peoples’ with an
‘s’ (and not people singular) reflects the human rights
instruments that refer to the collective right of self-determination as one
enjoyed by ‘peoples’. For a more detailed explanation on the use of
terms see: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008 (2009). At http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/index.html (viewed 3 June 2009).

^[60] See
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Reports (1993-2008) at http://www.humanrights.gov.au/social_justice/sj_report/index.html (viewed 28 May 2009); Australian Bureau of Statistics and Australian Institute
of Health and Welfare, The Health and Welfare of Australia's Aboriginal and
Torres Strait Islander Peoples (2005) at (viewed 28 May 2009); Australian Institute of Health and Welfare, Australia's
Health No.11 (2008) at (viewed 28 May 2009).

^[61] Australian Institute of Health and Welfare, Demand for SAAP accommodation by
homeless people 2007-2008 Australia (2009). At (viewed 28 May 2009).

^[62] Australian Bureau of Statistics, Counting the Homeless 2006 (2008), p ix.
At (viewed 29 May 2009). See also Human Rights and Equal Opportunity Commission, Our Homeless ��鱨վ: Report of the National Inquiry into Homeless
��鱨վ (1989).

^[63] For
further discussion about homelessness as a human rights issue, see Human Rights
and Equal Opportunity Commission, Submission to the Green Paper on
Homelessness - Which Way Home? (4 July 2008) at http://humanrights.gov.au/legal/submissions/2008/20080704_homelessness.html (viewed 28 May 2009); Human Rights and Equal Opportunity Commission, Homelessness is a Human Rights Issue (2008) at http://humanrights.gov.au/human_rights/housing/homelessness_2008.html (viewed 28 May 2009).

^[64] J
Mouzos and T Makkai, Women’s Experiences of Male Violence: Findings
from the Australian Component of the International Violence Against Women Survey
(IVAWS) (2004), p 3. At (viewed 29 May 2009).

^[65] Australian Bureau of Statistics, Personal Safety Survey (Reissue) (2005),
p 11. At (viewed 29 May 2009).

^[66] VicHealth, The Health Costs of Violence: Measuring the burden of disease
caused by intimate partner violence (2004), p 11. At (viewed 29 May 2009).

^[67] Australian Institute of Health and Welfare, Homeless people in SAAP: SAAP
National Data Collection annual report 2006-07 Australia (2008), p 32. At (viewed 6 April 2009).

^[68] Women With Disabilities Australia, Forgotten Sisters: A Global Review of
Violence against Women with Disabilities (2007).

^[69] For further details,
see Human Rights and Equal Opportunity Commission, Gender equality: What
matters to Australian women and men – The Listening Tour Community Report (2008). At http://www.humanrights.gov.au/sex_discrimination/listeningtour/index.html (viewed 28 May 2009).

^[70] World
Economic Forum, The Global Gender Gap Report 2007 (2007), p 38. At (viewed 16 March 2009).

^[71] Australian Bureau of Statistics, Average Weekly Earnings, Australia, February 2008 (2008). At (viewed 1 June 2009).

^[72] Australian Bureau of Statistics, above.

^[73] See S Kelly, Entering
Retirement: the Financial Aspects (Paper for the Communicating the Gendered
Impact of Economic Policies: The Case of Women’s Retirement Incomes
Conference, Perth, 12 - 13 December 2006).

^[74] See, for example, Crime
Prevention Powers Act 1998 (ACT); Summary Offences Act 1953 (SA); Summary Offences Act 2005 (Qld); Police Powers and Responsibilities
Act 2000 (Qld).

^[75] See, for
example UN Committee on the Rights of the Child, Consideration of Reports
Submitted by States Parties Under Article 44 of the Convention, Concluding
Observations: Australia, UN Doc CRC/C/15/Add.268 (2005), pp 8 - 9. At (viewed 1 June 2009).

^[76] See Human Rights and Equal Opportunity Commission, National Inquiry into
Rural and Remote Education (2000). At http://www.humanrights.gov.au/Human_RightS/rural_education/index.html (viewed 1 June 2009).

^[77] Human
Rights and Equal Opportunity Commission, WORKability 2: SOLUTIONS Final
report of the National Inquiry into Employment and Disability (2006),
Executive Summary. At http://www.humanrights.gov.au/disability_rights/employment_inquiry/final/exec.htm (viewed 28 May 2009).

^[78] Human
Rights and Equal Opportunity Commission, above. See also Human Rights and Equal
Opportunity Commission, National Inquiry into Employment and Disability
Issues Paper 1: Employment and Disability – The Statistics (2005). At http://www.humanrights.gov.au/disability_rights/employment_inquiry/papers/issues1.htm (viewed 29 May 2009).

^[79] Joint Committee on
Electoral Matters, Report on the 2007 federal election electronic voting
trials, 2009. At (viewed 5 June 2009).

^[80] See,
for example, UN Committee against Torture, Concluding observations of the
Committee against Torture: Australia, UN Doc CAT/C/AUS/CO/3 (2008), para 23,
at (viewed 4 June 2009); UN Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural
Rights: Australia, UN Doc E/C.12/AUS/CO/4 (Advance Unedited Version) (2009),
paras 29-30, at (viewed 29 May 2009).

^[81] See,
for example, UN Committee on the Rights of the Child, Concluding
Observations: Australia (2005), note 75, paras 73 - 74.

^[82] For further discussion of
these issues, see ��鱨վ, 2008 Immigration
detention report: Summary of observations following visits to Australia’s
immigration detention facilities (2009) at http://humanrights.gov.au/human_rights/immigration/idc2008.html (viewed 4 June 2009); Human Rights and Equal Opportunity Commission, Submission to the Joint Standing Committee on Migration Inquiry into
Immigration Detention in Australia (4 August 2008) at http://www.humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html (viewed 4 June 2009).

^[83] See,
for example, Human Rights and Equal Opportunity Commission, Bush Talks (1999). At http://www.humanrights.gov.au/pdf/human_rights/bush_talks.pdf (viewed 29 May 2009).

^[84] For
further discussion of these issues, see Human Rights and Equal Opportunity
Commission, Stories of discrimination experienced by the gay, lesbian,
bisexual, transgender and intersex community (2007), at http://humanrights.gov.au/human_rights/gay_lesbian/stories.html (viewed 1 June 2009); ��鱨վ, Sex Files: the
legal recognition of sex in documents and government records, Concluding
Paper of the sex and gender diversity project (2009), at http://humanrights.gov.au/genderdiversity/sex_files2009.html (viewed 1 June 2009).

^[85] See,
for example, Human Rights and Equal Opportunity Commission, Not for service:
Experiences of injustice and despair in mental health care in Australia (2005). At http://www.humanrights.gov.au/disability_rights/notforservice/report/index.html (viewed 29 May 2009).

^[86] See,
for example, Human Rights and Equal Opportunity Commission, Voices of
Australia: 30 years of the Racial Discrimination Act: 1975-2005 (2005). At http://www.humanrights.gov.au/racial_discrimination/voices/index.html (viewed 29 May 2009).

^[87] See
Human Rights and Equal Opportunity Commission, Ismaع – Listen: National consultations on eliminating prejudice against Arab and
Muslim Australians (2004), at http://www.humanrights.gov.au/racial_discrimination/isma/index.html (viewed 29 May 2009); Human Rights and Equal Opportunity Commission, Living
Spirit: A dialogue on human rights and responsibilities, Report on Muslim
Women's Project 2006 (2008) at http://www.humanrights.gov.au/racial_discrimination/livingspirit/1.html#5_3 (viewed 1 June 2009).

^[88] J
Jones, 2008 Report on antisemitism in Australia (2008). At (viewed 9 June 2009).

^[89] Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Age
Discrimination Act 2004 (Cth).

^[90] See also UN Human Rights
Committee, Consideration of Reports Submitted by States Parties under Article
40 of the Covenant: Concluding Observations of the Human Rights Committee
– Australia (Advanced Unedited Version), UN Doc CCPR/C/AUS/CO/5
(2 April 2009), para 12, at (viewed 9 June 2009); UN Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), note 80, para 14.

^[91] The schedules to the HREOC
Act are ILO No. 111, the ICCPR, the Declaration of the Rights of the Child, the
Declaration on the Rights of Mentally Retarded Persons and the Declaration on
the Rights of Disabled
Persons.

^[92] Declarations have
been made in relation to the Disability Convention, the Convention on the Rights
of the Child and the Declaration on the Elimination of all Forms of Intolerance
and of Discrimination based on Religion or
Belief.

^[93] See Sales v
Minister for Immigration and Citizenship (2007) 99 ALD 523, 528 (Flick J)
and the authorities cited therein.

^[94] However, the Aboriginal and
Torres Strait Islander Social Justice Commissioner must ‘have regard
to’ other human rights instruments including the ICESCR: Human Rights
and Equal Opportunity Act 1986 (Cth), s 46C(4)(a). With regard to the CAT,
the Australian Government has recently announced that it will consider
introducing a new federal offence of torture. This will strengthen the limited
protection provided by the Crimes (Torture) Act 1988 (Cth).

^[95] UN Human Rights
Committee, Concluding Observations: Australia (2009), note 90, para 8; UN Committee on
Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), note 80, para 11; UN Committee on Economic, Social
and Cultural Rights, Concluding observations of the Committee on Economic,
Social and Cultural Rights: Australia, UN Doc E/C.12/1/Add.50 (2000), paras
14, 24, at

(viewed 23 April 2009); UN Committee on the Rights of the Child, Concluding
Observations: Australia (2005), note 75, paras 9 - 10; UN Committee against Torture, Concluding Observations: Australia (2008), note 80, para
9.

^[96] UN Committee on Economic,
Social and Cultural Rights, Concluding Observations: Australia (2000),
above, paras 14, 24.

^[97] UN
Committee on Economic, Social and Cultural Rights, Concluding Observations:
Australia (2009), note 80, para 11.

^[98] UN Human Rights Committee, Concluding observations of the Human Rights Committee: Australia, UN Doc
A/55/40 (2000), paras 498 - 528. At (viewed 2 June 2009).

^[99] UN
Human Rights Committee, Concluding Observations: Australia (2009), note 90, para 8.

^[100] See Roy Morgan Research, Anti-Terrorism Legislation Community Survey prepared for Amnesty
International Australia (2006), p 12. At (viewed 2 June 2009).

^[101] RCL Moffat, ‘Philosophical Foundations of the Australian Constitutional
Tradition’ (1965) 5 Sydney Law Review 85, p 86.

^[102] G Williams, Human
Rights under the Australian Constitution (2002), p
41.

^[103] H Charlesworth,
‘T�� Australian Reluctance about Rights’ (1993) 31 Osgoode Hall
Law Journal 195, p
210.

^[104] Australian
Constitution, s 51(xxxi).

^[105] Australian Constitution, s
80.

^[106] Australian
Constitution, s 75(v).

^[107] Australian Constitution, s
116.

^[108] Australian
Constitution, s 117.

^[109] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Levy v
Victoria (1997) 189 CLR 579.

^[110] Australian Capital
Television Pty Ltd, above,
187.

^[111] A substantive
doctrine of equality under the Constitution was proposed by Deane and
Toohey JJ in their dissenting judgment in Leeth v Commonwealth (1992) 174
CLR 455, 486 - 492 (Deane and Toohey JJ), but was rejected in the joint judgment
of Mason CJ, Dawson and McHugh JJ. It was also rejected by a majority of
the Court in Kruger v Commonwealth (1997) 190 CLR 1. The more limited
procedural doctrine of equality proposed by Gaudron J in Leeth may still
be open for argument.

^[112] Charlesworth, ‘T�� Australian Reluctance about Rights’, note 103, p 198; J Doyle
and B Wells, ‘How Far Can the Common Law go Towards Protecting Human
Rights?’ in P Alston (ed), Promoting Human Rights Through Bills of
Rights: Comparative Perspectives (1999) 17, p
61.

^[113] See, for example, Roach v Electoral Commissioner (2007) 233 CLR 162, 224 - 225 (Heydon J)
and the authorities cited therein. A contrary view has been expressed by Kirby
J: see, for example, Newcrest Mining (WA) Ltd v Commonwealth (1997) 190
CLR 513, 657 - 658 (Kirby
J).

^[114] See sections 21 and
22 of this submission for further discussion of the weaknesses of the Australian
Constitution in protecting racial equality and the right to equality more
generally.

^[115] UN Committee
on the Elimination of Racial Discrimination, Concluding Observations of the
Committee on the Elimination of Racial Discrimination: Australia, UN Doc
CERD/C/AUS/CO/14 (2005), para 9. At (viewed 23 April 2009).

^[116] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007 (2008), ch 3. At http://humanrights.gov.au/social_justice/sj_report/sjreport07/ (viewed 2 June 2009).

^[117] Human Rights and Equal Opportunity Commission, Submission to Senate Legal and
Constitutional Committee on the Northern Territory National Emergency Response
Legislation (10 August 2007). At http://www.humanrights.gov.au/legal/submissions/2007/NTNER_Measures20070810.html (viewed 9 June 2009).

^[118] UN
Human Rights Committee, Concluding Observations: Australia (2009), note 90, para 14.

^[119] Al-Kateb v Godwin (2004) 219 CLR 562.

^[120] ICCPR, note 1, art
9.

^[121] Al-Kateb v
Godwin (2004) 219 CLR 562, 595 (McHugh
J).

^[122] The Hon M McHugh AC, The need for agitators: the risk of stagnation (Paper presented to the
Sydney University Public Law Forum, Sydney, 12 October 2005), p 7. At (viewed 29 May 2009).

^[123] Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1; Behrooz v
Secretary, Department of Immigration and Multicultural and Indigenous
Affairs (2004) 219 CLR
486.

^[124] Department of the
Prime Minister and Cabinet, Commonwealth Legislation Handbook (1999,
updated as of May 2000). At (viewed 26 May 2009).

^[125] Department of the Prime Minister and Cabinet, Commonwealth Legislation
Handbook, above, para
1.1.

^[126] Department of the
Prime Minister and Cabinet, Commonwealth Legislation Handbook, above,
para 6.34.

^[127] Department of
the Prime Minister and Cabinet, Commonwealth Legislation Handbook, above,
para 4.5.

^[128] S Evans,
‘Improving Human Rights Analysis in the Legislative and Policy
Processes’ (2005) 29 Melbourne University Law Review 665, p 674.

^[129] Department of the Prime
Minister and Cabinet, Cabinet Handbook, (5^th ed, 1983, amended
as of March 2004). At (viewed 26 May 2009).

^[130] Department of the Prime Minister and Cabinet, Commonwealth Legislation
Handbook, note 124, para
1.12.

^[131] Department of the
Prime Minister and Cabinet, Federal Executive Council Handbook (2005). At (viewed 26 May 2009).

^[132] Legislative Instruments Act 2003 (Cth), s
26.

^[133] Senate Table Office, Standing Orders and other Orders of the Senate (2006), Standing Orders 23
and 24, pp 20 - 21. At (viewed 2 June 2009).

^[134] For
further discussion, see section 20.16 of this
submission.

^[135] H
Charlesworth, ‘Who wins under a Bill of Rights?’ (2006) 25 The
University of Queensland Law Journal 1, p 44.

^[136] A Ramsey, ‘No
opposition, no debate, no contest’, The Sydney Morning Herald, 11
August 2007. At (viewed 2 June 2009).

^[137] See
further ��鱨վ, A Human Rights Guide to
Australia’s Counter-Terrorism Laws (2008). At http://humanrights.gov.au/legal/publications/counter_terrorism_laws.html (viewed 10 June 2009).

^[138] UN Human Rights Committee, Concluding Observations: Australia (2009),
note 90, pp 3 -
4; UN Committee against Torture, Concluding Observations: Australia (2008), note 80,
p 3.

^[139] Mabo v Queensland
(No 2) (1991) 175 CLR 1, 42 (Brennan J) (Mabo (No 2)).

^[140] Mabo (No 2),
above, 29 (Brennan J).

^[141] The Hon M McHugh AC QC, Does Australia Need a Bill of Rights? (Speech
delivered at Law Week Oration, University of Melbourne, 15 May 2007). At (viewed 2 June 2009).

^[142] (1994) 179 CLR 427.

^[143] Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and
McHugh JJ).

^[144] See generally K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4, para 47
(French J), and the authorities cited
therein.

^[145] Jumbunna Coal
Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 363
(O’Connor J); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J); Kartinyeri v Commonwealth (1998) 195 CLR 337, 384 (Gummow and Hayne JJ).

^[146]Chu Kheng Lim v
Minster for Immigration, Local Government and Ethnic Affairs (1992)
176 CLR 1, 38 (Brennan, Deane and Dawson JJ).

^[147] See D Pearce and R
Geddes, Statutory Interpretation in Australia (6^th ed, 2006),
pp 38 - 39.

^[148] See further
Doyle and Wells, note 112, p 74.

^[149] See Australian Human
Rights Commission, A Human Rights Guide to Australia’s
Counter-Terrorism Laws, note 137.

^[150] Trobridge v Hardy (1955) 94 CLR 147, 152 (Fullagher
J).

^[151] Crimes Act
1914 (Cth), pt 1C, div
2.

^[152] Crimes Act 1914 (Cth), pt 1C, div 2. The provision for ‘dead time’ is found in ss
23CA(8)(m) and 23CB.

^[153] Criminal Code Act 1995 (Cth), schedule, div 104.

^[154] Australian Security
Intelligence Organisation Act 1979 (Cth), pt III, div 3.

^[155] Australian Security
Intelligence Organisation Act 1979 (Cth), s
34G(4).

^[156] Australian
Security Intelligence Organisation Act 1979 (Cth), s
34ZS.

^[157] UN Human Rights
Committee, Concluding Observations: Australia (2009), note 90, pp 3 - 4. See also Special
Rapporteur on the Promotion and Protection of Human Rights and Fundamental
Freedoms while Countering Terrorism, Australia: Study on Human Rights
Compliance while Countering Terrorism, UN Doc A/HRC/4/26/Add.3 (2006). At (viewed 2 June 2009).

^[158] UN
Committee against Torture, Concluding Observations: Australia (2008),
note 80, p
3.

^[159] UN Human Rights
Committee, Concluding Observations: Australia (2009), note 90, pp 3 - 4; UN Committee
against Torture, Concluding Observations: Australia (2008), note 80, p 3.

^[160] Minister for
Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273. The concept of
‘legitimate expectation’ has been questioned in subsequent cases,
but has not been reversed. See, for example, Re Minister for Immigration and
Multicultural Affairs; Ex parte Lam (2003) 214 CLR
1.

^[161] Section 75(v) of the
Australian Constitution guarantees the High Court’s jurisdiction to
judicially review the actions of a Commonwealth officer (including the actions
of a Minister). Section 39B of the Judiciary Act 1903 (Cth) gives the
Federal Court jurisdiction to review the lawfulness of federal executive
action.

^[162] Administrative
Decisions (Judicial Review) Act 1977 (Cth), s 5.

^[163] Rush v Commissioner
of Police [2006] FCA
12.

^[164] Second Optional
Protocol to the ICCPR, note 22.

^[165] UN Human Rights
Committee, C v Australia, Communication No. 900/1999, UN Doc
CCPR/C/76/D/900/1999 (2002), para 7.3. At (viewed 2 June 2009).

^[166] The
UN Human Rights Committee has found that Australia has breached the human rights
of those within its jurisdiction 17 times. The UN Committee on Elimination of
Racial Discrimination and the Committee against Torture have each made one
finding against Australia.

^[167] UN Human Rights
Committee, Brough v Australia, Communication No. 1184/2003, UN Doc
CCPR/C/86/D/1184/2003 (2006). At (viewed 1 June 2009).

^[168] UN
Human Rights Committee, Young v Australia, Communication No. 941/2000, UN
Doc CCPR/C/78/D/941/2000 (2003). At (viewed 1 June 2009).

^[169] UN
Human Rights Committee, A v Australia, Communication No. 560/1993, UN Doc
CCPR/C/59/D/560/1993 (1997). At (viewed 1 June 2009).

^[170] UN
Human Rights Committee, Coleman v Australia, Communication No. 1157/2003,
UN Doc CCPR/C/87/D/1157/2003 (2006). At (viewed 1 June 2009).

^[171] For
example, in the case of A v Australia, the Australian Government rejected
the Committee’s findings that Mr A’s detention was in contravention
of the ICCPR and that the review of the lawfulness of the detention by
Australian courts was inadequate. The Government also rejected the
Committee’s view that compensation should be paid to Mr A. See H
Charlesworth, Human rights: Australia versus the UN, Democratic Audit of
Australia, Discussion Paper 22/06 (2006). At (viewed 1 June 2009).

^[172] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s
11(1)(e).

^[173] Human Rights
and Equal Opportunity Commission Act 1986 (Cth), s
3.

^[174] The definition of
‘human rights’ in s 3 of the Human Rights and Equal Opportunity
Commission Act 1986 (Cth) makes reference to rights ‘recognised or
declared by any relevant international instrument’. While this appears to
give the definition a broad scope, the term ‘relevant international
instrument’ is defined later in s 3 to be ‘an international
instrument in respect of which a declaration under s 47 is in force’. To
date only the Declaration on the Elimination of all Forms of Intolerance and
of Discrimination based on Religion or Belief, the CRC, and the Disability
Convention have been the subject of a declaration under s
47.

^[175] There is one
exception to this. The Aboriginal and Torres Strait Islander Social Justice
Commission ‘must, as appropriate, have regard to’ the ICESCR and
‘such other instruments relating to human rights as the Commissioner
considers relevant’: Human Rights and Equal Opportunity Commission Act
1986 (Cth), ss 46C(4)(a),
46C(4)(b).

^[176] The Commission
has certain limited powers in relation to the examination of legislation or
proposed legislation that may be contrary to CEDAW by virtue of s 48 of the Sex
Discrimination Act.

^[177] However, the Commission may conduct inquiries into discrimination in employment,
including systemic discrimination. This function is not limited to employment by
the Commonwealth. It also applies to private workplaces and employment by States
and Territories. Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 31(b).

^[178] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 11(1)(f).
‘Human rights’ are defined in s 3 of the Human Rights and Equal
Opportunity Commission Act 1986 (Cth).

^[179] Human
Rights and Equal Opportunity Commission Act 1986 (Cth), ss 29(2)(b),
29(2)(c).

^[180] Reports of
complaints are available at http://www.humanrights.gov.au/legal/HREOCA_reports/index.html.

^[181] Human Rights and Equal Opportunity Commission, Those who’ve come across
the seas – Detention of unauthorised arrivals (1998). At http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf (viewed 2 June 2009).

^[182] Human Rights and Equal Opportunity Commission, A last resort? National
Inquiry into ��鱨վ in Immigration Detention (2004). At http://www.humanrights.gov.au/human_rights/children_detention_report/report/PDF/alr_complete.pdf (viewed 2 June 2009).

^[183] See
further ��鱨վ, 2008 Immigration detention
report, note 82; Human Rights and Equal Opportunity
Commission, Submission to the Joint Standing Committee on Migration Inquiry
into Immigration Detention in Australia, note 82.

^[184] See, for example, UN
Human Rights Committee, Concluding Observations: Australia (2009), note 90,
pp 7-8; Committee against Torture, Concluding Observations: Australia (2008), note 80,
pp 4, 8; Committee on the Rights of the Child, Concluding Observations:
Australia (2005), note 75, p
13.

^[185] Racial
Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Age Discrimination Act 2004 (Cth).

^[186] See Discrimination Act 1991 (ACT), s 7(1)(o); Anti-Discrimination Act 1998 (Tas), s 16(r); Anti-Discrimination Act (NT), s
19(1)(q).

^[187] Human Rights
and Equal Opportunity Commission, Report of an inquiry into a complaint by Mr
Frank Ottaviano of discrimination in employment on the basis of criminal record
against South Australia Police, Report No. 38 (2007). At http://www.humanrights.gov.au/legal/HREOCA_reports/hrc_report_38.html (viewed 2 June 2009).

^[188] For
example, Amnesty International Australia commissioned a nationwide poll of 1001
voters in 2006. Sixty one per cent of respondents said they thought Australia
had a bill or charter of rights. Thirteen percent said that Australia did not
have a bill or charter of rights. Twenty six percent could not say. See Roy
Morgan Research, note 100.

^[189] Human Rights and
Equal Opportunity Commission Act 1986 (Cth), ss 11(1)(g),
11(1)(h).

^[190] The Hon M
McHugh AC QC, A Human Rights Act, the courts and the Constitution (Paper
presented at the ��鱨վ, Sydney, 5 March 2009). At http://www.humanrights.gov.au/letstalkaboutrights/events/McHugh2009_paper.doc (viewed 4 June 2009). The Canadian Bill of Rights 1960 (Can), s 2 states:

Every law of Canada shall, unless it is expressly declared by an Act of the
Parliament of Canada that it shall operate notwithstanding the Canadian Bill
of Rights, be so construed and applied as not to abrogate, abridge or
infringe or to authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared
...

^[191] For example, in R
v Drybones [1970] SCR 282, the Supreme Court of Canada held that a law that
could not be sensibly construed so as not to abrogate the rights and freedoms
recognised in the Canadian Bill of Rights was inoperative to the extent
of the inconsistency, unless there was an express declaration that the law
operated notwithstanding the Canadian Bill of Rights. Pamela Tate SC has
raised concerns about the constitutional implications of introducing a
‘notwithstanding’ clause of this type in the Australian federal
context. See P Tate, Victoria’s Charter of Human Rights and
Responsibilities: A contribution to the Debate on a National Charter (Paper
presented the 2009 Commonwealth Law Conference, Hong Kong, 6 April
2009).

^[192] See ICCPR, note 1, art
2(1).

^[193] In particular, the
right to self-determination is a collective right, held by
‘peoples’: ICCPR, note 1, art 1; ICESCR, note 2, art
1.

^[194] ICCPR, note 1, art 25(b). See
also UN Human Rights Committee, General comment No 15: The position of aliens
under the Covenant (1986), reprinted in UN Doc HRI/GEN/1/Rev.9 (Vol I)
(2008), p 189. At (viewed 7 June 2009).

^[195] ICCPR, note 1,
art 50; ICESCR, note 2, art
28.

^[196] The Commonwealth can
introduce laws that protect human rights pursuant to s 51(xxix) of the
Australian Constitution (the external affairs power), which gives Parliament the
power to introduce laws that implement the terms of those international
agreements to which Australia is a party: Commonwealth v Tasmania (1983) .

^[197] Australian
Constitution, s 109.

^[198] Although the precise formulation of this rule is not entirely clear, it is
doubtful that the Commonwealth would be able to control the procedures by which
a state Parliament makes laws. See Austin v Commonwealth (2003) 215 CLR 185, pp 257 - 258 (Gaudron, Gummow and Hayne JJ); Re
Australian Education Union: ex parte Victoria (1995) 184 CLR 188, 231 (Mason
CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ); A Simpson, ‘State
Immunity from Commonwealth Laws: Austin v Commonwealth and Dilemmas of
Doctrinal Design’ (2004) 32 University of Western Australia Law Review 45, p 50.

^[199] Consultation Committee for a Proposed WA Human Rights Act, A WA Human Rights
Act: Report of the Consultation Committee for a Proposed WA Human Rights Act (2007), at (viewed 7 June 2009); Tasmania Law Reform Institute, A Charter of Rights for
Tasmania, Report No 10 (2007), at (viewed 7 June 2009).

^[200] See Racial Discrimination Act 1975 (Cth), s 6A(1); Sex Discrimination Act
1984 (Cth), ss 10(3),11(3); Disability Discrimination Act 1992 (Cth),
s 13(3); Age Discrimination Act 2004 (Cth), s 12(3).

^[201] See Charter of Human
Rights and Responsibilities Act 2006 (Vic), preamble; Human Rights
Act 2004 (ACT),
preamble.

^[202] See Charter
of Human Rights and Responsibilities Act 2006 (Vic), preamble; Human Rights Act 2004 (ACT),
preamble.

^[203] Consultation
Committee for a Proposed WA Human Rights Act, note 199, pp 76 - 77; Tasmania Law Reform
Institute, note 199, pp 169 - 170; ACT Bill of Rights
Consultative Committee, Towards an ACT Human Rights Act: Report of the ACT
Bill of Rights Consultative Committee (2003), p 100, at (viewed 7 June 2009).

^[204] Human Rights Act 1998 (UK), sch 1, pt II; Joint Committee on Human
Rights, A Bill of Rights for the UK? Twenty–ninth Report of Session
2007–08 (2008), p 56, at (viewed 7 June 2009).

^[205] In Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624, the
Supreme Court of Canada held that the State’s failure to provide
interpreters to people with a hearing impairment when they accessed health
services violated the right to equality contained in s 15(1) of the Charter
of Rights and
Freedoms.

^[206] In Victoria (City) v Adams, 2008 BCSC 1363, the Supreme Court of British
Columbia found that a bylaw that prohibited the erection of temporary shelter on
public property deprived people who are homeless of the right to life, liberty
and security of the person guaranteed by s 7 of the Charter of Rights and
Freedoms.

^[207] Consultation Committee for a Proposed WA Human Rights Act, note 199, p 86. See further, P
Macklem, Indigenous Difference and the Constitution of Canada (2002), p
243: Canadian ‘courts have generally been reluctant to invest civil and
political rights with much social [or] economic ...content’. See also A
Byrnes, H Charlesworth and G McKinnon, quoted in ACT Department of Justice and
Community Safety, Human Rights Act 2004: Twelve-Month Review – Report (2006), p 48: ‘Even in ... Canada where a Charter of Rights had long
been established, the record of the courts in protecting social, economic and
cultural rights through other rights ... has been mixed at
��’.

^[208] Consultation
Committee for a Proposed WA Human Rights Act, note 199, p
87.

^[209] Constitution of
the Republic of South Africa, 1996, ss 26 -
27.

^[210] South Africa v
Grootboom [2001] 1 SA 46, para
41.

^[211] Joint Committee on
Human Rights, A Bill of Rights for the UK?, note 204, p
56.

^[212] Although certain
rights are tailored, for example, to the circumstances of lawful aliens,
children, citizens, ethnic, religious or linguistic minorities and mothers:
ICCPR, note 1,
arts 13, 24, 25, 27; ICESCR, note 2, art
10.

^[213] CEDAW, note 10; CRC, note 12; Disability
Convention, note 13; CERD, note 7; Declaration on the Rights of Indigenous
Peoples, note 33.

^[214] Australian courts already have recourse to international human rights
jurisprudence in interpreting laws which give effect to Australia’s
international obligations. They may also have reference to it in the context of
applying the common law principle of statutory interpretation that, in the case
of ambiguity, courts should prefer an interpretation that is consistent with
Australia’s international obligations: Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 264 - 265 (Brennan J); Gerhardy v Brown (1985)
159 CLR 70, 124 (Brennan J); Qantas Airways Limited v Christie (1998) 193
CLR 280, 303 (McHugh J), 332 - 333 (Kirby J). It has been held that approach is
not confined in its application to ambiguous statutory provisions: X v
Commonwealth (1999) 200 CLR 177, 222 - 223 (Kirby J); Qantas Airways
Limited v Christie (1998) 193 CLR 280, 332 - 333 and footnotes 168 - 169
(Kirby J).

^[215] See, for
example, Charter of Human Rights and Responsibilities Act 2006 (Vic), s
32(2); Human Rights Act 2004 (ACT), s 31(1). See further Human Rights
Act 2004 (ACT), dictionary; Explanatory Statement to the Human Rights Bill
2003 (ACT), pp 5 - 6; Explanatory Memorandum to the Charter of Human Rights and
Responsibilities Bill 2006 (Vic), pp 23 - 24. See also other sources of
international law as outlined in the Statute of the International Court of
Justice, art 38.

^[216] For
further on a Human Rights Act and the rights of Aboriginal and Torres Strait
Islander peoples, see Aboriginal and Torres Strait Islander Commissioner, Social Justice Report 2008, note 59, ch
2.

^[217] Charter of Human
Rights and Responsibilities Act 2006 (Vic), s
5.

^[218] Human Rights Act
2004 (ACT), s 28.

^[219] For an analysis of internal limitations in the ACT Human Rights Act and
Victorian Charter, see C Evans and S Evans, Australian Bills of Rights: The
Law of the Victorian Charter and ACT Human Rights Act (2008), paras 5.20
– 5.22.

^[220] Kracke v
Mental Health Review Board [2009] VCAT 646, para 108, citing R v Oakes [1986] 1 SCR 103, para
67.

^[221] ICCPR, note 1, art
19(3).

^[222] ICCPR, above, art
4(2). The UN Human Rights Committee considers that there are elements of other
rights that may not lawfully be subject to derogation: UN Human Rights
Committee, General Comment No 29: States of Emergency (Article 4), UN Doc
CCPR/C/21/Rev.1/Add. 11 (2001), para 13. At (viewed 2 June 2009).

^[223] UN
Human Rights Committee, above, para
7.

^[224] J Debeljak,
‘Balancing Rights in a Democracy: the Problems with Limitations and
Overrides of Rights under the Victorian Charter of Human Rights and
Responsibilities Act 2006’ (2008) 32 Melbourne University Law
Review 422, p 434.

^[225] See further, Debeljak, above, p
435.

^[226] Bropho v Western
Australia [2008] FCAFC 100, para 83.

^[227] See Charter of Human
Rights and Responsibilities Act 2006 (Vic), s 7(2); Human Rights Act
2004 (ACT), s 28; New Zealand Bill of Rights Act 1990 (NZ), s
5; Constitution of the Republic of South Africa, 1996, s 36. See also R v Oakes [1986] 1 SCR 103.

^[228] P Tate,
‘Protecting Human Rights in a Federation’ (2008) 33 Monash
University Law Review 212, p 232. See also Evans and Evans, note 219, para
5.49.

^[229] Department of Prime
Minister and Cabinet, Commonwealth Legislation Handbook, note 124.

^[230] Victorian Equal
Opportunity and Human Rights Commission, Emerging Change: The 2008 report on
the operation of the Charter of Human Rights and Responsibilities (2009), p
30. At (viewed 7 June 2009).

^[231] M
Hunt, The UK Human Rights Act as a ‘parliamentary model’ of
rights protection: lessons for Australia (Speech delivered at the Australian
Human Rights Commission, Sydney, 17 February 2009). At http://www.humanrights.gov.au/letstalkaboutrights/events/Hunt_2009.html (viewed 7 June 2009).

^[232] Victorian Equal Opportunities and Human Rights Commission, Emerging
Change, note 230, p
71.

^[233] See, for example,
Joint Committee on Human Rights. At (viewed 2 June 2009).

^[234] UK
Department for Constitutional Affairs, Review of the Implementation of the
Human Rights Act (2006), p 21; Hunt, note 231.

^[235] See J Uhr, ‘Leap into lead on rights path’, The Canberra
Times, 13 May 2009. At (viewed 7 June 2009).

^[236] In
the UK, Parliament has passed laws that are incompatible with human rights
against the advice of the Joint Parliamentary Committee. The ability of courts
under the UK Human Rights Act to issue a declaration of incompatibility has
provided further opportunity for Parliament to publicly consider the human
rights impacts of laws. See Hunt, note 231.

^[237] See Kracke v Mental
Health Review Board [2009] VCAT 646, para 206 where Justice Bell said
‘[t]he subject of s 32(1) is everybody. It applies to the courts,
tribunals, government officials and public ��ܳٳ�ǰ��پ��’.

^[238] The Hon Kevin Bell, Enhancing Australian Democracy with a Bill of Rights (Paper presented to
the Australian Institute of Administrative Law (Victorian Chapter), 20 November
2008), p 3.

^[239] For
discussion of this presumption, see section 13.1 of this
submission.

^[240] R v
Secretary of State for the Home Department Ex Parte Simms [2000] 2 AC 115,
131 (Lord Hoffman) (Ex Parte Simms). This presumption ‘has been
described in the United Kingdom as an aspect of a “principle of
legality” governing the relationship between parliament, the executive and
the courts’: K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4, para 47 (French
CJ).

^[241] See Ex Parte
Simms, above, 131 (Lord Hoffman). Common law rights have never been
comprehensively defined. However, they are narrower than those protected by the
ICCPR and ICESCR. For further discussion of how the interpretive provision
extends beyond the existing common law statutory interpretation principles, see
Evans and Evans, note 219, paras 3.16 -
3.17.

^[242] Human Rights
Act 2004 (ACT), s 30; Charter of Human Rights and Responsibilities
Act 2006 (Vic), s 32(1); New Zealand Bill of Rights Act 1990 (NZ), s
6; Human Rights Act 1998 (UK), s 3.

^[243] For a discussion of the
application of the interpretive provision in the Victorian context, see Kracke v Mental Health Review Board [2009] VCAT 646; in the United
Kingdom, see Ghaidan v Godin-Mendoza [2004] 2 AC 557; and in New Zealand,
see R v Hansen [2007] 3 NZLR
1.

^[244] The interpretation of
federal legislative instruments is dealt with by common law principles and the Legislative Instruments Act 2003 (Cth), s 13. This Act could be amended
to make it clear that all legislative instruments should be interpreted
consistent with the interpretive provision in a Human Rights Act.

^[245] However, the
interpretive provision should not impose obligations on public authorities to
interpret legislation consistently with human rights where the act of
interpreting the legislation occurs before the Human Rights Act comes into
force. For a discussion of the retrospective application of the Victorian
Charter, see Kracke v Mental Health Review Board [2009] VCAT 646, paras
334 - 365.

^[246] The Hon Chief
Justice J Spigelman AC, The Application of Quasi-Constitutional Laws (Speech delivered at the 2008 McPherson Lecture Series, Brisbane, 11 March
2008), p 9. At (viewed 4 June 2009).

^[247] For
an example of such criticisms in relation to the UK interpretive provision, see
McHugh, A Human Rights Act, the courts and the Constitution, note 190, pp 20 - 23, 26
- 27.

^[248] Such a provision is
contained in Charter of Human Rights and Responsibilities Act 2006 (Vic),
s 32(1); Human Rights Act 2004 (ACT), s 30. The Commission envisages that
this interpretive provision would operate consistently with s 15AA of the Acts Interpretation Act 1901 (Cth), which states: ‘[i]n the
interpretation of a provision of an Act, a construction that would promote the
purpose or object underlying the Act (whether that purpose or object is
expressly stated in the Act or not) shall be preferred to a construction that
would not promote that purpose or
�ǲ��𳦳�’.

^[249] Chief
Justice Spigelman argues that the words ‘consistently with their
purpose’ in the Victorian Charter and the ACT Human Rights Act are words
of limitation which do not permit the courts in Victoria and the ACT to apply
the interpretive obligation as expansively as had occurred in the UK. See
Spigelman, note 246, p 32; McHugh, A Human Rights Act, the
courts and the Constitution, note 190, p
26.

^[250] Statement of
Constitutional Validity of an Australian Human Rights Act (22 April 2009)
(Reproduced as Appendix 3 of this submission). At http://www.humanrights.gov.au/letstalkaboutrights/roundtable.html (viewed 4 June 2009). In K-Generation [2009] HCA 4, para 46, French CJ
observed that statutory interpretation is ‘to be informed by the principle
that the parliament, whether of the State or the Commonwealth, did not intend
the statute to exceed constitutional limits. It should be interpreted, so far as
its words allow, to keep it within constitutional limits’. Any
interpretive provision included in a national Human Rights Act would therefore
be interpreted, as far as its words allowed, to keep it within constitutional
limits and not to infringe the separation of
powers.

^[251] Al-Kateb v
Godwin (2004) 219 CLR 562, 577 - 578 (Gleeson CJ), 607 - 609 (Gummow
J), 615 - 616 (Kirby J).

^[252] Human Rights Act 1998 (UK), ss 4, 36; Human Rights Act 2004 (ACT),
s 32. In Victoria, this is known as a ‘declaration of inconsistent
��Գٱ��ٲ��پ��ǲ�’: Charter of Human Rights and Responsibilities Act 2006 (Vic), s 36.

^[253] Charter of Human Rights and Responsibilities Act 2006 (Vic), s
36(5); Human Rights Act 2004 (ACT), s
32(3).

^[254] Charter of
Human Rights and Responsibilities Act 2006 (Vic), s 37; Human
Rights Act 2004 (ACT), s
33(3).

^[255] Twenty-six
declarations of incompatibility have been issued in the UK, but nine were
overturned on appeal. Statistic cited by Hunt, note 231.

^[256] Statistic cited by Hunt,
above.

^[257] McHugh, A Human
Rights Act, the courts and the Constitution, note 190.

^[258] ‘T�� Human Rights Act 2004 (ACT): A Significant, Yet
Incomplete, Step Toward the Domestic Protection and Promotion of Human
Rights’ (2004) 15 Public Law Review 169, p 175. See also D Meagher,
‘Taking Parliamentary Sovereignty Seriously within a Bill of Rights
Framework’ (2005) 10 Deakin Law Review 686.

^[259] The British
Institute of Human Rights, The Human Rights Act: Changing Lives (2008), p
5. At (viewed 7 June 2009).

^[260] Victorian Equal Opportunity and Human Rights Commission, The 2007 Report on
the Operation of the Charter of Human Rights and Responsibilities: First steps
forward (2008), p 6. At (viewed 4 June 2009).

^[261] For
definitions of ‘public authority’ in other jurisdictions, see Human Rights Act 2004 (ACT), s 40; Charter of Human Rights and
Responsibilities Act 2006 (Vic), s 4; Human Rights Act 1998 (UK), s
6.

^[262] These services include
those in the areas of welfare services, health care, and management of prisons
and other detention
facilities.

^[263] Regarding the
ICCPR, the UN Human Rights Committee has stated ‘it would be
unconscionable to so interpret the responsibility under article 2 of the
Covenant as to permit a State party to perpetrate violations of the Covenant on
the territory of another State, which violations it could not perpetrate on its
own territory’: UN Human Rights Committee, Delia Saldias de Lopez v
Uruguay, Communication No. 52/1979, UN Doc CCPR/C/OP/1 (1984), 88 at para
12.3. At (viewed 4 June 2009).

^[264] A
similar provision is included in Charter of Human Rights and Responsibilities
Act 2006 (Vic), s
3(1).

^[265] A similar provision
is included in Human Rights Act 2004 (ACT), s 40B(2); Charter
of Human Rights and Responsibilities Act 2006 (Vic), s 38(2).

^[266] Department of
Immigration and Multicultural Affairs, Charter of Public Service in a
Culturally Diverse Society (1998). At (viewed 9 June 2009).

^[267] M
Kalantis and B Cope, ‘T�� charter of public service in a culturally
diverse society, Australian Government’, New Learning. At

(viewed 7 June 2009).

^[268] Human Rights Law Resource Centre, Case Studies: How a Human Rights Act can
Promote Dignity and Address Disadvantage, section 1.12. At (viewed 26 May 2009).

^[269] The
British Institute of Human Rights, The Human Rights Act: Changing Lives (2^nd ed, 2008), p 15. At (viewed 7 June 2009).

^[270] Victorian Equal Opportunity and Human Rights Commission, First steps
forward, note 260, p
12.

^[271] Victorian Equal
Opportunity and Human Rights Commission, above, p
12.

^[272] Victorian Equal
Opportunity and Human Rights Commission, Emerging change, note 230, p
21.

^[273] Public
Administration Act 2004 (Vic), s
7(1)(g).

^[274] Public
Administration Act 2004 (Vic), s
8(ca).

^[275] Public Service
Act 1999 (Cth), ss 10,
13.

^[276] For information on
the complaints process, see ��鱨վ, Federal
Discrimination Law Online, ch 6. At http://www.humanrights.gov.au/legal/FDL/index.html (viewed 4 June 2009).

^[277] UN
Committee on Economic, Social and Cultural Rights, General comment No 9,
note 54, para
10.

^[278] International
Commission of Jurists, Courts and the Legal Enforcement of Economic, Social
and

Cultural Rights: Comparative experiences of justiciability (2008), p 99. At (viewed 4 June 2009).

^[279] For
a review of how courts around the world have adjudicated matters relating to
economic, social and cultural rights, see International Commission of Jurists,
above, ch 3.

^[280] Human
Rights and Equal Opportunity Commission Act 1986 (Cth), s 46P0(4)(d).
See also ��鱨վ, Federal Discrimination Law
Online, note 276, ch
7.

^[281] Human Rights Act
1998 (UK), s 8(3).

^[282] Simpson v Attorney-General (��Գ�’s case)
[1994] 3 NZLR 667.

^[283] Charter of Human Rights and Responsibilities Act 2006 (Vic), s 39(3); Human Rights Act 2004 (ACT), s 40C(4).

^[284] See Administrative
Decisions (Judicial Review) Act 1977 (Cth), ss 5, 6. It would
be possible, but not necessary, to include a specific ground of review relating
to a failure to take into account the human rights specified in a national Human
Rights Act.

^[285] Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 15, 15A,
16. Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) 20
FCR 104, 114 (Sweeney J), 126 (Morling J), 134 (Foster
J).

^[286] See Australian Law
Reform Commission, Beyond The Door-Keeper: Standing to sue for public
remedies, ALRC 87 (1996), at (viewed 5 June 2009); Australian Law Reform Commission, Standing in Public
Interest Litigation, ALRC 27 (1985), at (viewed 5 June 2009).

^[287] Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 46P(2),
46PO(1). See also Access for All Alliance (Hervey Bay) Inc v Hervey Bay City
Council (2007) 162 FCR
313.

^[288] Human Rights Law
Resource Centre, Case Studies, note 268, section 1.4.

^[289] Human Rights Law
Resource Centre, above, section 2.2.

^[290] Human Rights and
Equal Opportunity Commission Act 1986 (Cth), s
11(1)(g).

^[291] National
Human Rights Consultation Background Paper (2008), p 13. At (viewed 9 June 2009).

^[292] See
section 11(1)(f) and Part II, Divisions 3 and 4 of the HREOC Act regarding the
Commission’s human rights and discrimination in employment complaint
functions. See Part IIB of the HREOC Act regarding the Commission’s
unlawful discrimination complaint functions.

^[293] Human Rights and Equal
Opportunity Commission, Annual Report 2007-2008, ch 4. At http://www.humanrights.gov.au/about/publications/annual_reports/2007_2008/chap4.html#4_1 (viewed 9 June 2009).

^[294] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 11(1)(o),
s 3(1).

^[295] Racial
Discrimination Act 1975 (Cth), s 20(1)(e); Sex Discrimination Act
1984 (Cth), s 48(1)(gb); Disability Discrimination Act 1992 (Cth), s
67(1)(l); Age Discrimination Act 2004 (Cth), s 53(1)(g). Special purpose
commissioners also have the specific function of assisting the Federal Court and
Federal Magistrates Court as amicus curiae with leave of the court: Human Rights and Equal Opportunity Commission Act 1986 (Cth), s
46PV.

^[296] Charter of Human
Rights and Responsibilities Act 2006 (Vic), s
40(1).

^[297] Williams, note 102, p
25.

^[298] Consultation
Committee for a Proposed WA Human Rights Act, note 199, Appendix
E.

^[299] Amnesty International
Australia, ‘Majority support the introduction of a law to protect human
rights in Australia’, (Media Release, 12 March 2009). At (viewed 6 May 2009).

^[300] S
Zifcak & A King, Wrongs, Rights & Remedies: An Australian
Charter? (2009), p 54. At (viewed 7 June 2009).

^[301] S
Harris Rimmer, ‘Some lawyers take cheap shots, some even work pro
��ǲԴ�’, The Canberra Times, 27 January 2009. At (viewed 12 May 2009).

^[302] See, for example, British Institute of Human Rights, Changing Lives, note 259; British
Institute of Human Rights, Changing Lives (2^nd ed), note 269; Human Rights
Law Resource Centre, Case Studies, note 268.

^[303] UK Department for Constitutional Affairs, note 234, p
4.

^[304] Jack Straw (UK Lord
Chancellor and Secretary of State for Justice) has acknowledged that the Human Rights Act 1998 (UK) is ‘unfortunately perceived by sections
of the public and the media as a “villains charter”’. However,
he remains ‘firmly supportive’ of the Human Rights Act: Letter from
the Rt Hon Jack Straw MP, Secretary of State for Justice to the Chairman, Joint
Committee on Human Rights, 11 January 2009, reproduced in Joint Committee on
Human Rights, A Bill of Rights for the UK? Government Response to the
Committee's Twenty-ninth Report of Session 2007-08 (2009), p
32.

^[305] UK Department for
Constitutional Affairs, note 234, p
4.

^[306] A Byrnes, H
Charlesworth & G McKinnon, Bills of Rights in Australia: History,
Politics and Law (2009), p
65.

^[307] J Burnside, Who’s afraid of Human Rights? (28^th Sir Richard Kirby
Lecture, Wollongong University, 25 September 2008). At (viewed 13 May 2009).

^[308] National Human Rights Consultation, Background Paper (2008), p 12. At (viewed 9 June 2009).

^[309] Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992; Age Discrimination Act
2004. The Race Discrimination Act and Sex Discrimination Act were intended
to give effect to Australia’s obligations under the CERD and CEDAW, respectively.

^[310] The
particular grounds of unlawful discrimination under federal anti-discrimination
law can be summarised as follows: race, colour, descent or national or ethnic
origin; sex; marital status; pregnancy or potential pregnancy; family
responsibilities; disability; people with disabilities in possession of
palliative or therapeutic devices or auxiliary aids; people with disabilities
accompanied by an interpreter, reader, assistant or carer; a person with a
disability accompanied by a guide dog or an ‘assistance animal’; and
age. Also falling within the definition of ‘unlawful discrimination’
is: offensive behaviour based on racial hatred; sexual harassment; harassment of
people with disabilities; and victimisation and several criminal offences
relating to
discrimination.

^[311] Equal
Opportunity Act 1995 (Vic), s 6(j) (religious belief or activity); Discrimination Act 1991 (ACT), s 7(1)(i) (religious conviction); Anti-Discrimination Act 1991 (Qld), s 7(1)(i) (religious belief or
religious activity); Anti-Discrimination Act 1998 (Tas), ss 16(o)
(religious belief or affiliation), 16(p) (religious activity); Anti-Discrimination Act 1992 (NT), s 19(1)(m) (religious belief or
activity); Equal Opportunity Act 1984 (WA), s 53 (religious conviction); Anti-Discrimination Act 1977 (NSW), s 7 (race, including ethno-religious
origin); Canadian Human Rights Act 1985 (Can), s 3(1) (religion); Equality Act 2006 (UK), pt 2 (religion and belief); Human Rights Act
1993 (NZ), s 21(1)(c) (religious
belief).

^[312] Equal
Opportunity Act 1995 (Vic), s 6(g) (political belief or activity); Discrimination Act 1991 (ACT), s 7(1)(i) (political conviction); Anti-Discrimination Act 1991 (Qld), s 7(1)(j) (political belief or
activity); Anti-Discrimination Act 1998 (Tas), ss 16(m) (political belief
or affiliation), 16(n) (political activity); Anti-Discrimination Act 1992 (NT), s 19(1)(n) (political opinion, affiliation or activity); Equal
Opportunity Act 1984 (WA), s 53 (political conviction); Equality Act 2006 (UK), pt 2 (belief); Human Rights Act 1993 (NZ), s 21(1)(j)
(political opinion).

^[313] Equal Opportunity Act 1995 (Vic), ss 6(d) (lawful sexual activity), 6(l)
(sexual orientation); Anti-Discrimination Act 1977 (NSW), s 49ZG
(homosexuality); Equal Opportunity Act 1995 (Vic), ss 6(d) (lawful sexual
activity), 6(l) (sexual orientation); Anti-Discrimination Act 1991 (Qld),
ss 7(1)(l) (lawful sexual activity), 7(1)(n) (sexuality); Anti-Discrimination
Act 1998 (Tas), ss 16(c) (sexual orientation, including heterosexuality,
homosexuality & bisexuality), 16(d) (lawful sexual activity); Equal
Opportunity Act 1984 (WA), s 35O (sexual orientation); Equal Opportunity
Act 1984 (SA), s 29(1)(b) (sexuality, including heterosexuality,
homosexuality & bisexuality); Anti-Discrimination Act 1992 (NT), s
19(1)(c) (sexuality, including heterosexuality, homosexuality &
bisexuality); Canadian Human Rights Act 1985 (Can), s 3(1) (sexual
orientation); Equality Act 2006 (UK), Pt 3 (sexual orientation); Human
Rights Act 1993 (NZ), s 21(1)(m) (sexual orientation, including a
heterosexual, homosexual, lesbian or bisexual
orientation).

^[314] Anti-Discrimination Act 1977 (NSW), s 38B (transgender); Equal
Opportunity Act 1995 (Vic), s 6(ac) (gender identity); Discrimination Act
1991 (ACT), ss 7(1)(b) (sexuality), 7(1)(c) (transsexuality); Equal
Opportunity Act 1984 (SA), s 29(1)(b) (sexuality, including transsexuality); Anti-Discrimination Act 1998 (Tas), s 16(c) (sexual orientation,
including transsexuality); Anti-Discrimination Act 1992 (NT), s 19(1)(c)
(sexuality, including
transsexuality).

^[315] Equal
Opportunity Act 1995 (Vic), s 6(c) (industrial activity); Discrimination
Act 1991 (ACT), s 7(k) (membership or non-membership of an association or
organisation of employers or employees); Anti-Discrimination Act 1991 (Qld), s 7(1)(k) (trade union activity); Anti-Discrimination Act 1998 (Tas), s 16(l) (industrial activity); Anti-Discrimination Act 1992 (NT), s 19(1)(k) (trade union or employer association
activity).

^[316] Anti-Discrimination Act 1977 (NSW), s 7 (race, including nationality); Anti-Discrimination Act 1998 (Tas), s 16(a) (race, including
nationality); Equal Opportunity Act 1995 (Vic), s 6(i) (race, including
nationality); Discrimination Act 1991 (ACT), s 7(1)(h) (race, including
nationality); Anti-Discrimination Act 1991 (Qld), s 7(1)(g) (race,
including nationality); Equal Opportunity Act 1984 (WA), s 51 (race,
including nationality); Anti-Discrimination Act 1992 (NT), s
19(1)(a); Equal Opportunity Act 1984 (WA), s 36 (race, including
nationality); Human Rights Act 1993 (NZ), s 21(1)(g) (ethnic or national
origins including nationality and citizenship). Whilst the Race Discrimination
Act prohibits discrimination on the basis of ‘national origin’, this
is separate from ‘nationality’ and ‘citizenship’ which
are not protected under the Race Discrimination Act. See, for example, Australian Medical Council v Wilson (1996) 68 FCR 46, 75 (Sackville J); Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90
FCR 202, 210 - 212 (Carr, Sundberg and North
JJ).

^[317] Discrimination
Act 1991 (ACT), s 7(1)(m) (profession, trade, occupation or
calling).

^[318] Anti-Discrimination Act 1998 (Tas), s 16(r) (irrelevant medical record); Anti-Discrimination Act 1992 (NT), s 19(1)(p) (irrelevant
medical record).

^[319] Discrimination Act 1991 (ACT), s 7(1)(o) (spent conviction within the
meaning of the Spent Convictions Act 2000 (ACT)); Anti-Discrimination
Act 1998 (Tas), s 16(q) (irrelevant criminal record); Anti-Discrimination
Act 1992 (NT), s 19(1)(q) (irrelevant criminal
record).

^[320] ICCPR, note 1, art
26.

^[321] UN Human Rights
Committee, Concluding Observations: Australia (2009), note 90, para 12.

^[322] UN Committee on
Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), note 80,
para 14.

^[323] See, generally,
Human Rights and Equal Opportunity Commission, Submission to the Senate
Standing Committee on Legal and Constitutional Affairs on the Inquiry into the
Effectiveness of the Sex Discrimination Act 1984 (Cth) in Eliminating
Discrimination and Promoting Gender Equality (1 September 2008), pts 11 and
12. At http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 7 June 2009).

^[324] The
Senate Standing Committee on Legal and Constitutional Affairs concluded that it
was ‘concerned by evidence it received of specific gaps in coverage under
the Act’: Senate Standing Committee on Legal and Constitutional Affairs,
Parliament of Australia, Effectiveness of the Sex Discrimination Act
1984 (Cth) in eliminating discrimination and promoting gender equality (2008), para 11.20. At (viewed 7 June 2009). Likewise, the Australian Law Reform Commission has
observed that the SDA ‘remains only a partial response to women’s
legal inequality’: Equality Before the Law: Women’s Equality, Report No 69, pt II (1994), para 4.5. At (viewed 7 June 2009).

^[325] Human Rights and Equal Opportunity Commission, Submission to the Inquiry into
the Effectiveness of the Sex Discrimination Act, note 323, paras 312 -
317.

^[326] Human Rights and
Equal Opportunity Commission, above, pt 10. See also Human Rights and Equal
Opportunity Commission, It’s ��鱨վ Time: Women, men, work and family (2007). At http://www.humanrights.gov.au/sex_discrimination/its_about_time/ (viewed 7 June 2009).

^[327] Human Rights and Equal Opportunity Commission, Submission to the Inquiry into
the Effectiveness of the Sex Discrimination Act, note 323, paras 388 -
393.

^[328] Human Rights and
Equal Opportunity Commission, above, paras 318 -
327.

^[329] See, for example, K
Lindsay, N Rees and S Rice, Australian Anti-Discrimination Law: Text, Cases
and Materials (2008), p 83.

^[330] See, for example, M
Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) pp 2 –
3.

^[331] See, for example, Hinchcliffe v University of Sydney (2004) 186 FLR 376, 476 at paras 115 -
116. The Commission acknowledges, however, that the current definition of
indirect discrimination under the Disability Discrimination Act may soon be
amended under the Disability Discrimination and Other Human Rights
Legislation Amendment Bill
2008.

^[332] See, for
example, IW v City of Perth (1997) 191 CLR 1, 63 (Kirby J); Australian
Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165, 176 (Deane and
Gaudron JJ); Glasgow City Council v Zafar [1998] 2 All ER 953, 958, cited
with approval in Sharma v Legal Aid (Qld) [2002] FCAFC 196, para
40 (Heerey, Mansfield and Hely JJ); Shamoon v Chief Constable of the RUC [2003] 2 All ER 26, 71 (Ld
Rodger).

^[333] The notable
exception is the Sex Discrimination Act, where the onus of proving
reasonableness in respect of indirect discrimination rests with the respondent
(s 7C). However, the onus in respect of the remaining elements of direct and
indirect discrimination remains with the applicant under the Sex Discrimination
Act.

^[334] See further Human
Rights and Equal Opportunity Commission, Submission to the Inquiry into the
Effectiveness of the Sex Discrimination Act, note 323, paras 190 –
199.

^[335] The Senate Standing
Committee on Legal and Constitutional Affairs noted that ‘the existing
patchwork approach to coverage under the [Sex Discrimination Act] appears both
unnecessarily complex and undesirable’: Senate Standing Committee on Legal
and Constitutional Affairs, Effectiveness of the Sex
Discrimination Act, note 324, para
11.22.

^[336] The Labour Party, Manifesto 2005: Britain forward not back (2005), p 112. At (viewed 7 June 2005).

^[337] United Kingdom, Department for Communities and Local Government, Discrimination Law Review, A Framework for Fairness: Proposals for a Single
Equality Bill for Great Britain – A consultation paper, (June 2007), p
11. At (viewed 7 June 2005).

^[338] UK
Department for Communities and Local Government, above, p
11.

^[339] UK Department for
Communities and Local Government, above, p 12.

^[340] UK Department for
Communities and Local Government, above, p
13.

^[341] Equality Act 2006 (UK), pts 1 - 4. Protection now applies to discrimination on the basis of
religion or belief and sexual orientation. For more detail on the nature of the
positive duties aimed at combating systemic discrimination, see the UK
Commission for Equality and Human Rights, Public Sector Duties. At (viewed 28 May 2009).

^[342] United Kingdom, Government Equalities Office, ‘Harman: Equality Bill
confirmed in Legislative Programme’ (Press Release, 3 December
2008). At (viewed 28 May 2009).

^[343] See, generally, United Kingdom, The Equality Bill – Government response
to the Consultation (2008). At (viewed 7 June 2009).

^[344] See, generally, The Equalities Review, Fairness and Freedom: The Final Report
of the Equalities Review (2007). At (viewed 7 June 2009).

^[345] See, for example, UK Department for Communities and Local Government, note 337, p
13.

^[346] Senate Standing
Committee on Legal and Constitutional Affairs, Effectiveness of the Sex
Discrimination Act 1984, note 324; Senate Standing Committee on Legal and
Constitutional Affairs, Parliament of Australia, Inquiry into the Disability
Discrimination and Human Rights Legislation Amendment Bill 2008 (2009), at (7 June 2009).

^[347] Productivity Commission, Review of the Disability Discrimination Act
1992, Report no. 30 (2004). At (7 June 2009).

^[348] Senate
Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act, note 324, Recommendation
43.

^[349] It is imperative to
ensure that any such harmonisation process: (1) ensures that laws comply with
international human rights standards; (2) promotes ‘best practice’
models rather than the ‘lowest common denominator’ from each
jurisdiction; (3) provides greater clarity about the practical application of
equality rights and responsibilities in specific contexts; (4) reduces the
transactional costs for both applicants and respondents; and (5) promotes access
to justice, with particular focus on improving access for people who are mostly
intensely affected by inequality and other violations of human rights in
Australia. See Human Rights and Equal Opportunity Commission, Submission to
the Inquiry into the Effectiveness of the Sex Discrimination Act, note 323, para
776.

^[350] Human Rights and
Equal Opportunity Commission, Submission to the Inquiry into the
Effectiveness of the Sex Discrimination Act, note 323, para
781.

^[351] Senate Standing
Committee on Legal and Constitutional Affairs, Effectiveness of the Sex
Discrimination Act, note 324, para
11.107.

^[352] Human Rights and
Equal Opportunity Commission, Submission to the Inquiry into the
Effectiveness of the Sex Discrimination Act 1984, note 323, paras 781 -
783.

^[353] A similar view was
expressed in several other submissions to the Senate review of the SDA: Senate
Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act, note 324, paras 4.57 - 4.65.

^[354] United Kingdom, The
Equality Bill, note 343, para
1.11.

^[355] See Canadian
Human Rights Act 1985 (Can); Human Rights Act 1993 (NZ); Equal
Opportunity Act 1995 (Vic); Equal Opportunity Act 1984 (WA); Anti-Discrimination Act 1991 (Qld); Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act
1998 (Tas); Equal Opportunity Act 1984 (SA); Anti-Discrimination
Act 1991 (Qld); Anti-Discrimination Act 1992 (NT); Discrimination
Act 1991 (ACT).

^[356] The
Sex Discrimination Commissioner also has responsibility for matters relating to
discrimination on the basis of age.

^[357] Council for Aboriginal
Reconciliation, Recognising Aboriginal and Torres Strait Islander Rights:
Ways to implement the National Strategy to Recognise Aboriginal and Torres
Strait Islander Rights, one of four National Strategies in the Roadmap for
Reconciliation (2000). At (viewed 1 May 2009).

^[358] Constitutional Commission, Final Report of the Constitutional Commission (1988), p 16. See also House of Representatives Standing Committee on Legal and
Constitutional Affairs, Parliament of Australia, Reforming our Constitution:
A roundtable discussion (2008), p 49. At (viewed 1 May 2009).

^[359] Council for Aboriginal Reconciliation, Reconciliation: Australia’s Challenge: final report of the Council for Aboriginal
Reconciliation to the Prime Minister and the Commonwealth Parliament (2000),
p 105. At (viewed 28 May 2009). Constitutional reform was also identified as an essential
component of the proposed ‘Social Justice Package’ to be developed
in response to the Mabo decision: see Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 1995 (1995),
ch 4. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport95.html (viewed 28 May 2009). See also Aboriginal and Torres Strait Islander Commission, Recognition, Rights and Reform: a Report to Government on Native Title Social
Justice Measures (1995).

^[360] In Kartinyeri v Commonwealth, Gaudron, Gummow and Hayne JJ left open the
possibility that a ‘manifest abuse’ of the federal
legislature’s use of s 51(xxvi) may generate a justiciable constitutional
question for the High Court: (1998) 195 CLR 337, 369,
380.

^[361] R S French, Dolores Umbridge and the Concept of Policy as Legal Magic (Speech
delivered at the Australian Law Teachers’ Association National
Conference, Perth, 24 September 2007), para
19.

^[362] See further
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2008, note 59, pp 71 -
74.

^[363] UN Committee on the
Elimination of Racial Discrimination, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Australia, UN Doc
CERD/C/AUS/CO/14 (2005), para
9.

^[364] Australian Law Reform
Commission, Equality before the Law: Women’s Equality, note 324, para
4.16.

^[365] ICESCR, note 2, art 13; CRC, note 12, art 28; CERD,
note 7, arts 5,
7; CEDAW, note 10, art
10.

^[366] Universal
Declaration, note 3, art
26(2).

^[367] UN Human Rights
Committee, Concluding Observations: Australia (2009), note 90, pp 8 - 9.

^[368] Council of Australian
Governments (COAG), Communiqué: Indigenous Issues (COAG Meeting,
Canberra, 14 July 2006). At (viewed 28 May 2009).

^[369] Ministerial Council on Education, Employment, Training and Youth Affairs, Melbourne Declaration on Educational Goals for Young Australians (5
December 2008). At (viewed 5 June 2009).

^[370] National Human Rights Consultation, note 308, p 13.

^[371] Human Rights and
Equal Opportunity Commission Act 1986 (Cth), s
11(1)(e).

^[372] In May 2009,
the UN Committee on Economic, Social and Cultural Rights noted with concern that
the Commission has limited competency with regard to the ICESCR. The Committee
recommended that Australia strengthen the mandate of the Commission in order to
cover all rights in the ICESCR. See UN Committee on Economic, Social and
Cultural Rights, Concluding Observations: Australia (2009), note 80, para 13.

^[373] Human Rights and Equal
Opportunity Commission, A last resort?, note 182.

^[374] Human Rights and Equal
Opportunity Commission, National Inquiry into Rural and Remote Education,
note 76.

^[375] Human Rights and
Equal Opportunity Commission Act 1986 (Cth), s
11(1)(f).

^[376] Human Rights
and Equal Opportunity Commission Act 1986 (Cth), ss 11(1)(f),
3(1).

^[377] Human Rights and
Equal Opportunity Commission Act 1986 (Cth), ss 30(1),
31(b).

^[378] Human Rights
and Equal Opportunity Commission Act 1986 (Cth), ss 21 -
23.

^[379] Human Rights and
Equal Opportunity Commission Act 1986 (Cth), ss 29(2)(b), 29(2)(c).

^[380] Note that, under section
45 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth),
the Commission is required to prepare an annual report on its operations during
the prior year. It is not suggested that the Australian Government be required
to table a formal response to the Commission’s annual report.

^[381] Senate Standing
Committee on Legal and Constitutional Affairs, Reconciliation: Off track (2003), para 6.35, recommendation 9. At (viewed 5 June 2009).

^[382] Human Rights and Equal Opportunity Commission, Submission to the Joint
Committee of Public Accounts and Audit Inquiry on the Effects of the Ongoing
Efficiency Dividend on Smaller Public Sector Agencies (29 July 2008), para
6. At http://www.humanrights.gov.au/legal/submissions/2008/20080729_efficiency_dividend.html (viewed 7 June 2009). Budget appropriation for 2007-08 was $15.5m. This was
reduced to $14.9m at additional estimates with the withdrawal of funding for
workplace relations reform and the application of the additional 2% efficiency
dividend.

^[383] For further
background to this funding reduction, see Human Rights and Equal Opportunity
Commission, Submission to the Joint Committee of Public Accounts and Audit
Inquiry, above.

�����鱨վ

Search