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Emeritus Professor Rosalind Croucher AM FAAL FRSA FACLM(Hon) delivered this speech at The Annual Castan Centre for Human Rights Law Conference on 21 July 2023.

Overview

The Australian Human Rights Commission is reaching the conclusion of its Free and Equal project, identifying what the national system for protecting human rights should be in Australia. In this keynote, President Croucher outlined the Commission’s vision of a new national human rights framework, as well as the centrepiece of this framework – a national Human Rights Act for Australia.

Introduction

Thank you to Professor Melissa Castan and to Dean Bryan Horrigan. And to the stellar panellists to follow my presentation. I would like to begin by acknowledging the Traditional Custodians of the land on which we are all meeting from today. I am on Gadigal Land, and pay my respects to Elders past, present and emerging and to any First Peoples attending.

I speak to you at a critical time for the protection of human rights in Australia.

Later this year, Australians will go to a Referendum to consider whether a Voice to Parliament should be added to our Constitution. This is something that the Australian Human Rights Commission supports and which we see as contributing to the better implementation of human rights of Aboriginal and Torres Strait Islander peoples.

And next year, we will have a generational opportunity to secure a federal Human Rights Act and begin the task of modernising our out-of-date legal and policy framework for the protection of human rights.

For the past four years, the Commission has been undertaking a project called Free and Equal, in which we have asked ‘what would make an effective system for the protection of human rights in Australia?’

From 2019 to 2021, we released an Issues Paper and three Discussion Papers, and conducted a submissions process, receiving approximately 160 submissions; we held a national conference on human rights and other workshops with the United Nations High Commissioner for Human Rights; and we conducted a series of roundtables, technical workshops and stakeholder consultations. It has been an extensive, consultative process.

I spoke at the Castan Centre conference about the project at its outset, in aspirational terms. Since then, our aspirations have landed in terms of two Position Papers on key reform priorities.

The first Position Paper was released in December 2021: Free & Equal: A reform agenda for federal discrimination laws. In this, we set out an ambitious reform agenda to modernise our federal discrimination laws, including by remedying deficiencies in the current laws, by placing a greater focus on prevention of discrimination, and by introducing co-regulatory approaches that enable governments and businesses in particular to be better equipped to prevent and deal with discrimination. These laws are out of date and not serving the Australian people as well as they could.

But addressing discrimination alone is not enough to ensure that people’s human rights are protected.

And so we launched our second Position Paper, A Human Rights Act for Australia, on 9 March 2023. It is designed to complement protections against discrimination and deal proactively with issues that discrimination laws cannot address. It presents our case for the introduction of a federal Human Rights Act in Australia, and an outline of our proposed model and associated reforms.

It seeks to complete the central, missing piece of our domestic legislative framework for the promotion and protection of human rights in Australia – by bringing rights home.

Just after we launched our paper, the Attorney-General referred to the Parliamentary Joint Committee on Human Rights (PJCHR) an inquiry into a Human Rights Framework for Australia, with express reference to our proposal for a federal Human Rights Act. The PJCHR will report in March 2024.

Since June this year, we have made two submissions to that inquiry. The first submission provided an overview of the key findings of the Free and Equal project to date and then set out our vision for a new national human rights framework, featuring a national Human Rights Act at its centre. Our second submission, which has yet to be loaded on the PJCHR website (as at Thursday 20 July), complemented this submission, with illustrations of how a Human Rights Act might make a difference, drawing from examples of HRA jurisdictions, and where the absence of a Human Rights Act exposes weaknesses in our existing human rights protections.

Our proposal for a new Human Rights Framework for Australia sets out 3 supporting foundations and 5 key pillars.

The 3 foundations for a new framework, necessary to support its effectiveness are:

• human rights education
• a sustainable Australian Human Rights Commission
• a vibrant civil society to protect human rights.

The five pillars:

1. Comprehensive and effective protection of human rights in legislation through the introduction of a national Human Rights Act.
2. Federal discrimination laws to be modernised to ensure their effectiveness and to shift the focus from a reactive model that responds to discriminatory treatment to a proactive model that seeks to prevent discriminatory treatment in the first place.
3. The role of Parliament in protecting human rights is strengthened, through reform to the processes for parliamentary scrutiny and the introduction of new oversight mechanisms for Australia’s human rights obligations.
4. A national human rights indicator index is introduced to independently measure progress on human rights over time.
5. An annual statement to Parliament on human rights priorities is made by the Government.

Each of these elements has a role to play in an integrated human rights framework.

Why do we need this?

There is currently an implementation gap between the human rights standards that Australia has agreed to internationally, and the actual protections in our laws, policies and processes of government.

Our Constitution protects some rights through limitations on the power to pass legislation, but does not confer rights on individuals; the common law ‘principle of legality’ helps in interpreting legislation in a way that is consistent with fundamental rights – to a point; and the parliamentary scrutiny of legislation plays an important role, but, like the Commission itself, it is hampered by the fact that its legislative reference point does not sit in domestic law.

The existing mechanisms are insufficient and do not provide the human rights protections that all people in Australia are entitled to.

Without comprehensive legal protection, education and other measures to promote an understanding of human rights, and the processes for monitoring compliance with human rights, Australia is not fully meeting its obligations to ensure that the human rights of all Australians are respected, protected and fulfilled. Our experience with Royal Commissions into Robodebt, and the abuses experienced by persons with disability and in aged care, have exposed egregious human rights breaches, and show how our existing systems are just not adequate.

The experience during COVID-19 also reinforced the need for greater protection of human rights and more finely tuned and proportionate considerations upfront in the policy making process.

The need for better human rights protections in Australia can be summarised by one simple proposition: we should have proper protection of human rights at the national level because everybody’s human rights matter, all of the time.

A primary benefit of a ³Ô¹ÏÍøÕ¾ Human Rights Framework is that it will foster a culture of respect for human rights throughout the whole of government and across the country. It would likely contribute to a better understanding and awareness of Australia’s human rights obligations, increasing acceptance of them, and provide greater prominence to human rights through the demonstration of political will by the Government and Parliament. It would provide the foundation for, and enhance, ‘rights-mindedness’ in policy, law and decision making.

Parliamentarians and public officials should be required to consider the human rights impact of their actions. And they should be required to favour options that positively protect human rights, and justify that their chosen actions cause the least possible harm to people’s rights.

To achieve this, we need a Human Rights Act.

The Australian Human Rights Commission has been handling human rights complaints since 1981, through the lens of the international treaties. We seek to resolve complaints about breaches of human rights through conciliation. This is distinct from our jurisdiction to conciliate unlawful discrimination complaints. However, unlike that pathway, people who complain that their human rights have been breached cannot obtain enforceable remedies through the courts. This seriously limits the effectiveness of conciliation – and the willingness of public authorities to engage.

A Human Rights Act, by contrast, includes the possibility of court proceedings – without it, you don’t get the accountability leverage you need for improving decision making. But litigation is not the point. It is the positive duty on public authorities to get it right in the first place – by developing policies and framing decisions through the lens of human rights.

Failures to protect human rights can affect all kinds of people, and any lack of respect for human rights degrades society at large. And those most harmed by human rights breaches are regularly the most vulnerable among us. Just look at Robodebt, the punitive ParentsNext scheme, and the experiences of people with disability exposed in the Disability Royal Commission.

A Human Rights Act would build on the experience of complaint handling of 40+ years and address the weaknesses of the current scheme. By providing a pathway to enforceable remedies, a Human Rights Act would substantially improve access to justice and accountability for government decision making. It would provide a greater incentive to think about human rights early, when decisions are made, and before they become complaints. It would be an evolution, not a revolution in our ability to handle and respond to complaints.

The Commission’s Position Paper offers a clear and concrete set of proposals to implement a Human Rights Act federally. It is tailored to the unique legal framework at the federal level. Our model retains and emphasises the supremacy of the Parliament and is respectful of our Constitutional constraints and federal structure.

Our model is based on:

• a positive duty on public authorities – to act compatibly with human rights and consider human rights when making decisions, as exists in the state and territory Human Rights Acts, but also expanded duties to ensure the effective participation of Indigenous peoples, persons with disability and children, and to ensure equal access to justice
• enhanced parliamentary scrutiny
• a comprehensive implementation of human rights, across the ICCPR and ICESCR
• interpretive provisions that align the understanding of human rights to the international jurisprudence, and
• the existence of remedial pathways, at the Commission, in administrative law and the courts.

The beauty of a Human Rights Act, and other measures that frontload what I call ‘rights-mindedness’, is that they are expressed in the positive. They are embedded in decision making and ahead of any dispute, and they provide a way of resolving intersections between rights through a proportionality framework.

A Human Rights Act names rights; it provides an obligation to consider them and a process by which to do it – together supporting a cultural shift towards rights-mindedness, becoming part of the national psyche, not just an afterthought.

We look forward to the PJCHR Inquiry into an Australian Human Rights Framework to explore the issues raised by the Commission: for discrimination law reform, for the introduction of a national Human Rights Act, and for the introduction of other reforms that will assist in measuring our human rights performance and holding Government to account for its human rights performance.

The submissions to the PJCHR inquiry are being loaded incrementally on the Committee’s website. They are fascinating to read. Of the approximately 150 submissions available to date, there is broad approval of the Commission’s approach. This is in relation to our model for a national human rights framework, and also for a national Human Rights Act.

Some submissions would like some elements of our Human Rights Act to go further. For example, by advocating for broader protections particularly in the area of economic, cultural and social rights; some are concerned about the scope of protection for freedom of religion and its intersection with other rights.

The Commission has recommended that the PJCHR itself recommend the adoption of a national Human Rights Act, and that it propose that a Draft Exposure Bill be released for comment based on the Commission’s model. So these suggestions around the scope of our model can be captured in the forward momentum of discussion around an Exposure Draft Human Rights Bill – the top of the ‘wish list’ for the ‘implementation department’.

How does our model Human Rights Act compare to others?

Our model is specifically tailored to the constitutional challenges in Australia. Notably, however, it goes further than the state and territory models in important respects.

Cause of action

In our view, a direct cause of action is an essential plank of the Human Rights Act – not a ‘piggy back’ claim, but a direct claim.

In early 2019 I had the opportunity to speak with Lady Hale, then Chief Justice of the UK Supreme Court, about her experiences with the UK’s Human Rights Act over 20 years. She considered the existence of a cause of action one of the essential pillars of the effectiveness of the UK Act.

A direct cause of action has been adopted in the UK, ACT, New Zealand and Canada. The ACT Human Rights Act’s cause of action is modelled on the UK provision.

In addition to a direct cause of action, the Human Rights Act should also enable the raising of Human Rights Act rights in the context of another legal proceeding. Human rights may be relevant to a range of issues – including discrimination claims, tort claims and criminal claims. Human rights issues are often raised collaterally. This approach enables flexibility for litigants and reflects the practical reality that most cases are not ‘pure’ human rights cases.

All Australian jurisdictions with Human Rights Acts enable human rights to be raised alongside other claims. However, Queensland and Victoria are international outliers by only allowing human rights to be raised alongside other claims. In these jurisdictions, a person can only raise human rights before a court by ‘piggybacking’ a human rights claim on separate proceedings against a public authority.

There is no principled reason for restricting human rights claims to ‘piggybacking’ – and it may be seen to be purely a mechanism to reduce access to the courts for human rights matters. The 2015 Victorian Charter Review, by Michael Brett Young, recommended that Victoria adopt a direct cause of action, modelled on the ACT approach. These problems have been raised regularly since the introduction of the Charter, including by Free & Equal stakeholders.

Fears about opening ‘floodgates’ to litigation through a direct cause of action have proved unwarranted in other jurisdictions:

A direct cause of action was introduced in the Australian Capital Territory in 2009. In that year, the number of cases that mentioned the Human Rights Act increased markedly, but the proportion of cases involving human rights issues has since reduced to pre-2009 levels.v In its first ten years of operation (up to 2014), the ACT Human Rights Act was mentioned in approximately 50 cases in ACT tribunals (6.6% of published decisions), 164 cases in the ACT Supreme Court (9.2% of 1846 published decisions) and in 29 cases in the ACT Court of Appeal (7.6% of 371 published decisions).

In the UK, figures show that human rights legal actions peaked at 714 in 2002, shortly after the passage of the Human Rights Act, but had fallen to only 327 cases in 2009.

Additionally, an accessible complaints process (utilising alternative dispute resolution) would reduce the impact of a Human Rights Act on the judicial system. Litigation need not be the only port of call for people who wish to make a complaint alleging a breach of human rights. Rather, it is a necessary last resort when other avenues have failed.

Remedies?

Monetary damages are currently available for breaches of rights protected by federal discrimination laws, including breaches by public authorities. Damages are also available in the UK, New Zealand and Canada. The Human Rights Acts in the ACT, Victoria and Queensland do not permit the recovery of damages where a breach of human rights has been found. The bottom line is that Australian state and territory jurisdictions are outliers for not making damages available where breaches have occurred.

The reason for excluding access to monetary damages in the states and territories was supposedly to avoid litigation and costs for government. But jurisdictions with a direct cause of action and monetary damages available have not seen ‘floodgates’ of litigation. Additionally, procedural remedies will not always be effective in remedying every kind of breach. When it is not appropriate to have a decision remade – a traditional administrative law remedy – but a person has suffered loss or damages, courts should be able to provide a remedy. Otherwise, individual will be denied justice. The remedies provision should ensure that monetary damages are an available option to the courts where it is the correct remedy in the circumstances – as is the case in relation to unlawful discrimination.

And if we are speaking of costs to government, just look at the costs of royal commissions. It has been estimated, for example, that the Royal Commission into Aged Care will cost the Australian Government $104 million over four years; and the Royal Commission into Violence, Abuse and Neglect and Exploitation of People with Disability will cost $527 million.

Failing to provide sufficient remedies may also mean that Australia is breaching its international human rights obligations – including Article 2(3) of the ICCPR. Free & Equal submitters and consultees were strongly against restricting available remedies through the Human Rights Act.

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. A Human Rights Act could also attract a range of administrative law remedies, including setting aside the decision and referring the decision back to the decision maker for further consideration.

Conciliation first

The Human Rights Act should still require a person to make a human rights complaint to the Commission, first. The Commission can already conciliate complaints about breaches of human rights, although they are currently non-justiciable. The Commission’s existing processes could be easily adapted to conciliate human rights complaints with the foundation of unlawfulness – like our existing jurisdiction in relation to unlawful discrimination, under the four federal Discrimination Acts. Our experience here reflects the potential of alternative dispute resolution to resolve disputes between complainants and public authorities in a quick, accessible, cost-efficient and effective manner.

The Queensland complaints pathway is modelled on our AHRCA jurisdiction. But it is still limited: the cause of action is a piggy-back one, and no damages are available.

With the implementation of a Human Rights Act, this complaints jurisdiction should be removed and replaced with a Human Rights Act jurisdiction. Complainants could proceed to court if conciliation fails (or is inappropriate), as is the case with unlawful discrimination complaints.

The new human rights jurisdiction based on a Human Rights Act would be broader than the Commission’s existing human rights jurisdiction. For example, the Commission cannot currently accept complaints under ICESCR (although ICESCR is referred to when appropriate by the Commission in the exercise of its other functions). The Commission has long advocated for ICESCR to be given the same status in the AHRC Act as the other core human rights treaties. This is a necessary reform to ensure that the full suite of human rights protections formally falls under the Commission’s remit, and it should be actioned alongside the implementation of the Human Rights Act.

ICESCR rights

This is one area where some submissions would like to go further.

Australia signed ICESCR in 1973 and ratified it without reservations in 1975. This means that Australia has the same obligations under ICESCR as it does under the ICCPR.

Currently, there are some protections for ICESCR rights in Australia (for example, the Fair Work Act, which embeds work-related rights, and our ILO 111 jurisdiction to some extent) but they are only protected in an inchoate and fragmented manner. Queensland’s and ACT’s human rights instruments have implemented key ICESCR rights, including the right to education and health and set an example for the federal context.

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.

ICESCR rights are also closely linked with realisation of self-determination for Indigenous peoples, and are essential to meeting ‘close the gap’ targets, which address socio-economic indicators of disadvantage.

The Australian public strongly values economic and social rights, indicating that the lack of implementation of ICESCR does not reflect the democratic will of the people. This was a clear outcome of the 2009 NHRCC. Priorities identified included

– The right to adequate housing, the right to the highest attainable standard of physical and mental health, and the right to education are particular priorities for the community.

Reconciling ICESCR rights and the exercise of judicial power

Chapter III of the Constitution requires the exercise of judicial power to involve ‘the application of criteria or standards that are sufficiently definite’. In order to ensure that ICESCR rights are justiciable and constitutionally compliant, the Commission proposes articulations of ICESCR rights that are somewhat narrower than the full expression of those rights contained in ICESCR. The Commission has focused on including the essential, core and/or immediately realisable aspects of these rights. All ICESCR rights are implemented through the Commission’s proposals, to varying degrees.

Progressive realisation principles are not inherently non-justiciable. However, it is important to provide certainty that the implementation of ICESCR is Constitutional, suitably adapted for the Australian context, and directly enforceable by the courts.

Additionally, ICESCR implementation, particularly with regard to the principle of progressive realisation, occurs primarily outside the realm of the courts. Progressive realisation is most relevant to ‘upstream’ decision making about policy and resourcing. Parliamentary scrutiny and Commission reporting would provide opportunities to address the broader aspects of ICESCR rights that extend beyond the narrower articulation of rights in the HRA to be applied by courts. The Commission also envisages that legal foundations in an HRA would be complemented by overarching national targets and measurable indicators assessing human rights implementation, enabling the progressive realisation of rights over time.

Friends and colleagues, let me conclude with a call to action.

The reality is that our legal framework for protecting human rights in Australia, and for the prevention of discrimination, has changed very little in a generation.

The introduction of a positive duty for some grounds under the Sex Discrimination Act, but not others, and not for other discrimination acts, is a notable exception to this inertia.

Very little of the Human Rights Framework that was introduced as a response to the Brennan national human rights consultation in 2009 has endured. And we are left with a passive system of rights protection:

• where the protection against discrimination relies on individual complainants bringing actions when they have experienced harm, instead of proactive measures focused on prevention and building a culture of respect
• where the protection against human rights violations by the federal government – through the Commission’s human rights jurisdiction – is mostly without consequence
• where there is a lack of transparency about how government addresses known human rights concerns – such as the issues raised by treaty body committees and through individual communication processes
• where there is an absence of benchmarks and targets against which to regularly hold government to account for progress in protecting human rights and
• where there is a serious absence of measures to educate the community about human rights, or to ensure that public servants see the protection of the rights of people in Australia as their core business.

This has to change. Not another Robodebt Royal Commission!

Government is here to improve the lives of everyone in Australia. The impact of government decision-making on the wellbeing of the community that they serve should be top of mind, all of the time.

And our conversation about human rights should be a positive, ambitiously-focused agenda about what government should be doing to ensure that we all have the opportunity to thrive and develop, free from discrimination and with our full human dignity respected and protected.