A federal Human Rights Act – What are we afraid of?

Former Law Council of Australia president delivers speech outlining the organisation's push to establish this legislation

A federal Human Rights Act – What are we afraid of?

“What are we afraid of?” This was the question posed by former Law Council of Australia President Pauline Wright in a speech outlining the organisation’s updated policy on a federal Human Rights Act.

Wright, alongside National Human Rights Committee member Stephen Kiem SC. addressed the National Press Club in Canberra last November. Describing the events of 2020, particularly the COVID-19 pandemic, as a “turning point” in Australian history, Wright reiterated the need to reignite the conversation surrounding a national Human Rights Act.

Although a party to, and a historical leader in, several international human rights treaties, Australia is the only Western democracy without a legislated or constitutional national charter of rights, even though the states of Queensland, Victoria and the ACT have each established a Human Rights Act. While all states and territories have enacted anti-discrimination legislation, the ACT was the first Australian jurisdiction to pass a Human Rights Act in 2004. Victoria followed suit in 2006 and Queensland in 2019. The rights enshrined in these acts are predominately taken from the International Covenant on Civil and Political Rights, and the acts are modelled on the United Kingdom’s Human Rights Act 1988. 

However, on a federal level, there is still more to do.

“Our Constitution protects very few rights, and those rights which have been so hotly debated during the pandemic, are backed by few Constitutional or statutory guarantees,” Wright said. “The Law Council considers that a human rights ethos – established across the public and private sectors, across aged care, disability services, childcare, education, health and detention facilities, may work to curb the systemic need for what can seem like almost rolling royal commissions, investigating complex, wide-ranging social justice failures in Australia.”

COVID-19 has affected multiple rights, including those associated with travel restrictions, mandatory quarantine and emergency health plans. Globally, the pandemic has also illustrated the tension caused when rights are asserted to the detriment of others.

“The experiences of the pandemic have shown that none of us should take our rights for granted,” current Law Council President Dr Jacoba Brasch QC told Australasian Lawyer in a recent interview. “More importantly there has been evidence of some public confusion during the pandemic as to the extent of individuals’ rights, and whether they are legislatively protected, and how they intersect with others’ rights – for example, how a person’s freedom of movement intersects with another’s right to health.”

Brasch affirmed her predecessor Wright’s submissions towards a federal Human Rights Act.

“It would include, for example, a duty on public authorities to act compatibly with human rights and provide proper consideration to human rights in the development of policy and the making of decisions,” Brasch said.

The Law Council submitted that a national human rights charter would provide an “established framework” to accommodate the presence of multiple, competing human rights – especially in emergencies such as the pandemic.

Further, the Law Council asserted that a federal human rights charter would provide a preventative measure for the infringement of rights, rather than the reactive and “crisis-driven” nature of current royal commissions. The council’s revised human rights policy covers the following eight areas:

  • The right to be protected
  • Who should receive protection
  • The importance of an interpretive clause
  • Statements of compatibility
  • Duties on public authorities
  • An independent direct right of action
  • Remedies
  • Procedural matters, especially cost considerations

The policy submits that the act should include a provision requiring all current and future Commonwealth legislation to be interpreted in a manner consistent with human rights, as far as reasonably possible. Further, as financial barriers often restrict legal action, the policy supports the availability of protective cost orders for cases of public importance.

While accepting that a national charter would not be an instant cure, the Law Council’s updated policy reiterates the use of a federal Human Rights Act as a powerful tool to “help ensure that the needs and circumstances of people in Australia in all their diversity are better understood and reflected,” Wright explained.

She negated arguments against a federal charter, such as the cost to taxpayers and the anticipated increased pressure on court systems, and reiterated the long-term benefits of ensuring that Australians are treated with equality, dignity and respect.

“A federal Human Rights Act would be a powerful tool to build the edifice of Australia’s international human rights obligations, ensuring that the decisions and actions of our governments are guided by the time-honoured values of freedom, equality, justice, compassion and dignity,” Wright said.

Brasch also acknowledged a commonly referenced disadvantage “that a federal Human Rights Act would be a ‘lawyers’ picnic’, opening the future floodgates of litigation,” but explained that “this has not been the experience in those jurisdictions which have implemented a Human Rights Act.”

“Australia’s steps to implement its international human rights obligations have been characterised as ‘faltering, sporadic and inconsistent.’ Federal legislation which implements these obligations primarily involves anti-discrimination laws, but these are fragmented, complex and have gaps, with a focus on prohibiting conduct (i.e., protecting against certain breaches of human rights), rather than on more positively fulfilling enjoyment of rights,” she said.

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