by Phil Lynch

The promotion and protection of human rights in Australia is at the cross-roads.

The next three years provide an opportunity for the Gillard Government to give real substance to Australia’s promise to be a ‘principled advocate of human rights for all’. ¹

Alternatively, the next three years could see Australia squander much of its human rights capital, with recent events such as the asylum freeze and deaths in police custody showing that we must always remain vigilant against human rights regression.

May 2010 alone witnessed historic progress on Indigenous rights and gender equality, with the establishment of the National Congress of Australia’s First Peoples and amendments to modernise the Sex Discrimination Act 1984 (Cth). That month also witnessed the unlawful suspension of asylum claims from Afghanistan and Sri Lanka, a Federal Government announcement that the Curtin detention centre would be re-commissioned, and a decision to deport a long-term Australian resident in direct contravention of a request by the UN Human Rights Committee not to do so.

What has brought us to the cross-roads is the Labor Government’s response to the report of the National Human Rights Consultation, its new ‘Human Rights Framework’. ² It has been variously described as ‘positive and practical’, ³ ‘icing without the cake’ ⁴ and ‘just a damp squib’. ⁵

National Human Rights Consultation

Launched on December 10th 2008, the 60^th anniversary of the Universal Declaration of Human Rights (UDHR), the National Human Rights Consultation asked Australians three simple questions:

• Which human rights should be promoted and protected in Australia?
• Are these rights sufficiently promoted and protected?
• How could we better protect and promote human rights?

The consultation was one of the most extensive exercises in participatory democracy in Australian political history. The independent Committee concluded that ‘after 10 months of listening to the people of Australia, [there is] no doubt that the protection and promotion of human rights is a matter of national importance.’ ⁸

The Committee’s report, released in October 2009, made five key findings:

1. Human rights matter deeply to Australians. They resonate with Australian democratic values, the rule of law and our sense of a fair go. There is strong support for the promotion and protection of all human rights, including economic, social and cultural rights, such as the rights to education, housing and the highest attainable standard of health.
2. Our democratic and legal institutions do not provide comprehensive or even adequate protection of human rights. While our institutions are strong, the patchwork quilt of human rights protection is missing pieces and this is felt most keenly by the marginalised and vulnerable. ⁹
3. Human rights are not enjoyed fully or equally by all Australians. Both in fact and in law, many groups within Australia experience profound disadvantage, including the homeless, people with mental illness, Aboriginal Australians, asylum seekers and children with disability. There is a strong view that ‘we could do better in guaranteeing fairness for all within Australia and in protecting the dignity of people who miss out’. ¹⁰ Independent polling found that up to 75 per cent of Australians support stronger measures to protect the human rights of people with mental illness, the elderly, Aboriginal Australians and people with disabilities.
4. There is a need for better education about human rights within the community. ¹¹ Human rights also need to be better understood within government and given greater consideration in the development of legislation and policy. ¹² Instilling a human rights culture in the federal public sector is integral to better protect and promote human rights in Australia. ¹³
5. There is very strong support for a comprehensive national Human Rights Act. Of the submissions which considered the issue, 87 per cent supported a Human Rights Act, while independent polling found 57 per cent support enactment, and only 14 per cent oppose it.  The Consultation revealed that Australians understand the fundamentally democratic role of the judiciary in protecting human rights and the rule of law. Some 86 per cent of us consider that government has a high level of responsibility in relation to the promotion and protection of human rights; 84 per cent also recognise the significant responsibility of the courts in this regard.

In response to these five key findings, the Committee made 31 recommendations.  The most significant and vigorously debated recommendation was that:

Australia should adopt a comprehensive, enforceable Human Rights Act, the aim of which should be to promote a dialogue about human rights between parliament, the executive, the courts and the community.

The Committee recommended that this Act be modeled on the ‘legislative dialogue’ model of human rights protection, reflected in instruments such as the Victorian Charter of Human Rights and Responsibilities Act 2006, the ACT Human Rights Act 2004 and the United Kingdom’s Human Rights Act 1998. Under the Act proposed, human rights would be able to be tested in the courts and enforceable, but parliament would retain sovereignty and ‘the final say’.

The Committee was persuaded by the evidence that a national Human Rights Act would promote more accountable government, improve public services, address poverty and disadvantage, and enshrine fundamental unifying values.

The Government response – no Human Rights Act

On April 21st 2010, the Government released ‘Australia’s Human Rights Framework’ in response to the National Human Rights Consultation Committee report. Launching the Framework, the Attorney-General Robert McClelland MP stated that it contains ‘positive and practical’ measures and ‘reflects the key recommendations made by the Consultation Committee, including the need for greater human rights education’. ¹⁴

Significantly, however, the Framework does not include a commitment to a Human Rights Act. The Attorney-General stated that such an Act would be ‘contentious’ and that ‘the enhancement of human rights should be done in a way that as far as possible unites, rather than divides, our community’. ¹⁵

The failure to commit to a comprehensive Human Rights Act is a missed opportunity to strengthen Australia’s democracy and build a fairer, more inclusive community. It flies in the face of evidence, a strong democratic mandate and the status of human rights as universal minimum standards which must be promoted and protected by all means necessary.

The basis upon which a Human Rights Act was rejected – that it would be contentious and divisive – was spurious and an abdication of leadership.  That conclusion failed the test of political leadership, vision and resolve. Far from being divisive, a Human Rights Act would unite us through legal protection and institutional strengthening of those Australian democratic values we hold in common. As the Apology to the Stolen Generations demonstrated, political leadership and vision can unite people, even on controversial issues.  That is particularly the case when what is proposed is good, evidence-based policy that resonates deeply with our Australian commitment to respect, tolerance, fairness, freedom and the rule of law.

A Human Rights Act deferred is human rights denied. The Government’s rejection of an Act until at least 2014 is a denial of the many benefits which demonstrably accompany human rights legal protections. Evidence and experience from Victoria, the ACT and the UK, each of which have ‘dialogue-model’ Human Rights Acts, demonstrate that a national Act would promote more accountable government, ¹⁶ improve public services, ¹⁷ address poverty and disadvantage, ¹⁸ and enshrine fundamental unifying values. Instead, the homeless, the elderly, people with mental illness and children with disability — all of whom have been beneficiaries of human rights laws in comparative jurisdictions — must now wait at least another four years before their human rights are adequately protected and promoted at the national level.

The campaign for a Human Rights Act that befits, protects and unites us has only just begun.

Australia’s new Human Rights Framework

Appropriately conceived and effectively implemented, these measures will improve the development of laws, policies and practices, and help ensure that human rights are properly considered in legislative, parliamentary and executive decision-making processes.

So, how can we ensure that these benefits are realised?

Parliamentary scrutiny and protection of human rights

The Federal Government has moved quickly to implement the recommendations relating to parliamentary protection of human rights, introducing the Human Rights (Parliamentary Scrutiny) Bill 2010 to the House of Representatives on June 2nd 2010.  The Bill establishes a Joint Parliamentary Committee on Human Rights to:

• examine all Bills, legislative instruments and existing Acts ‘for compatibility with human rights’ ²¹;
• inquire into ‘any matter relating to human rights which is referred to it by the Attorney-General’ ²²

The powers, proceedings and modalities of the Committee are to be ‘determined by resolution of both Houses of Parliament’.

Statements of compatibility

The Human Rights (Parliamentary Scrutiny) Bill 2010 also requires Ministers to provide a ‘Statement of Compatibility’ to accompany all new bills.  This Statement must assess whether the Bill is compatible with the human rights set out in all seven core UN human rights treaties to which Australia is party. ²⁴

The Bill is silent on the nature, scope and detail of this assessment.

If Statements of Compatibility are to fulfil their purpose of ‘improving parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development’ ²⁵, they should have the following features:

• human rights should be considered, and Statements of Compatibility prepared early in the policy development process. ²⁶
• statements must include rigorous analysis of the human rights issues and interferences raised by a Bill.  Statements of Compatibility should explain limitations in an evidence-based manner which demonstrably justifies the intrusion on rights.
• the detail and length of Statements should be commensurate with the human rights implications of the proposed legislation.
• in considering the scope and content of the seven core human rights treaties, ‘proper consideration [should] be given to international human rights law and the judgments of domestic, foreign and international human rights courts, bodies and tribunals’. ²⁷
• this would encourage and enable both policy-makers and parliamentarians to draw on extensive and illuminating international and comparative human rights jurisprudence.
• statements of Compatibility should be tabled with the Second Reading Speech and Explanatory Memorandum of a Bill and also included in Hansard.  This will ensure that they meaningfully inform parliamentary dialogue and debate and are accessible to the public.

Review of legislation, policies and practice

The Framework contains a significant commitment to review existing ‘legislation, policies and practice for compliance with human rights’ standards. Priority should be given to amending those laws and practices which have been the subject of UN treaty body recommendations, together with the Human Rights Consultation Committee, the Australian Human Rights Commission and reputable human rights organisations, including:

• anti-discrimination legislation, policies and practices;
• national security laws, particularly those relating to control orders, preventative detention, and the powers of ASIO;
• legislation providing for immigration detention, offshore processing, and the rights of refugees and asylum-seekers; and
• the Northern Territory Emergency Response legislation.

Harmonisation and consolidation of Commonwealth anti-discrimination laws – or a sweeping new Equality Act?

Equality is a pre-eminent Australian value and the bedrock of a fair, cohesive and productive society. Some of the most pressing social issues of our time – including Indigenous disadvantage, violence against women and poverty – are both causes and consequences of inequality. Prime Minister Rudd recognised that inequality contributes to ‘poorer educational results, lower productivity, worse health outcomes, shorter working lives and lower workforce participation.’ ²⁸

The law can and should play a central normative and educational role in advancing equality for all Australians. This requires a shift away from an outdated and ineffective complaints-based, remedial model of anti-discrimination laws. ²⁹  Australian law should promote a rights-based model of substantive equality which emphasises equal outcomes and addresses structural causes of inequality. For over 20 years detailed, high-level reports have recognised the significant shortcomings of our anti-discrimination laws and called for greater legal protection of equality. ³⁰

These include that they:

• are reactive and complaints-based
• fail to actively promote equality or address systemic discrimination ³¹
• do not address all grounds of discrimination or multiple discrimination ³², and
• are ineffective in areas that have been granted permanent exemptions ³³

The Government’s Human Rights Framework commits to ‘harmonise and consolidate Commonwealth anti-discrimination laws to remove unnecessary regulatory overlap, address inconsistencies across laws and make the system more user-friendly’. ³⁴ The so-called ‘Consolidation Project’ will be an opportunity missed if it is restricted in scope to issues of regulatory overlap and inconsistencies.

A single, comprehensive Equality Act should:

1. create a legal right to substantive equality
2. provide comprehensive coverage through a non-exhaustive list of protected attributes – Commonwealth anti-discrimination law currently only prohibits discrimination on the basis of age, sex, race and disability
3. reverse the onus of proof in discrimination cases. It is notoriously difficult to prove discrimination.  If the complainant has made out a prima facie case that discrimination has occurred, the onus should be on the respondent to show that the conduct complained of was justified ³⁵
4. provide mechanisms to identify, target and address systemic discrimination. Under the new Victorian Equal Opportunity Act 2010, for example, the Victorian Equal Opportunity and Human Rights Commission has the power to issue guidelines, conduct education and research, and conduct investigations and public inquiries into serious instances of systemic discrimination ³⁶
5. provide for representative complaints. This would recognise that much discrimination is not individual but systemic in nature
6. provide for temporary special measures to promote equal opportunity – this would enable positive steps to address structural disadvantage, and
7. remove permanent exceptions that do not meet human rights standards of reasonableness and proportionality. Current anti-discrimination laws contain anachronistic carve outs, such as for clubs and religious groups, that automatically trump the right to equality without assessing the reasonableness, necessity and proportionality of doing so in any given case ³⁷
8. create the machinery for the measurement and transparency necessary to recognise and address inequality and provide an evidence base for further action – poor data makes it extremely difficult to effectively identify and address inequality.  All public bodies should be required to publish annual equality reports.

The strongest legal mechanism to promote the right to equality in Australia is a Constitutional guarantee of equality. Constitutional entrenchment would have significant symbolic effect and ensure that the government cannot easily amend or overturn the right to equality simply by passing legislation. Reflecting this, the federal Equality Act should include a provision mandating that, after four years of operation, an inquiry be held into a constitutional amendment aimed at enshrining the right to equality.

Human rights education

The new Framework is said to prioritise human rights education. While $12.4 million has been allocated over four years to give effect to the report’s recommendation that ‘human rights education be the highest priority’, the effectiveness of such measures will be substantially reduced without a robust enabling framework in the form of a comprehensive, judicially enforceable Human Rights Act. Evidence clearly establishes that human rights legislation and education are complementary and mutually reinforcing and that there is both a causal and consequential link between the legislative protection of human rights and the extent and effectiveness of human rights education. ³⁸  Reflecting this, a recent Australian Public Service Commission report which discusses the importance of regulation, among other policy instruments such as education, in effecting cultural and behavioural change, found that:

Ad hoc, piecemeal action can have some impact but it is significantly more limited than a carefully planned, comprehensive, long-term approach encompassing education and information, legislation and restrictive measures. The comprehensive approach takes action in a range of areas using a range of policy tools. The effectiveness of the whole package is significantly greater than the sum of its parts. ³⁹

The report further found that legislation can and should play a critical role in effecting cultural and behavioural change. ⁴⁰

Back to the cross-roads

Effectively implemented, the new Human Rights Framework will enhance community understanding of rights, strengthen parliamentary human rights scrutiny, and instill greater respect for human rights in policy making and public services.

We have the opportunity to improve legislative protection and parliamentary scrutiny of rights. The Australian parliament will become the first in the world, for example, to scrutinise all proposed legislation against all of the core human rights treaties. The question is, how effectively and to what result?

We have the opportunity to promote equality and redress discrimination. The Federal Government’s proposal to review Commonwealth anti-discrimination laws is an opportunity to move beyond a reactive, complaints-based system and enact legislation which actively promotes substantive equality.  It will be deeply regrettable if the review only results in legislative consolidation.

The apology to the Stolen Generations two years ago displayed the power of bold, responsible political leadership and the ways in which a commitment to fundamental human rights and the alleviation of disadvantage can unite us. We should now unite around a Human Rights Act and a new Equality Act.

Photo Credit: Amanda BH Slater, http://www.flickr.com/photos/pikerslanefarm/3394618767/

Endnotes