ALHR

ALHR Submission: PJCHR Inquiry into Australia’s Human Rights Framework

December 8, 2023

ALHR commends the Federal Attorney-General, the Hon. Mark Dreyfus KC, on the establishment of a PJCHR Parliamentary Joint Committee on Human Rights Inquiry to investigate Australia’s human rights framework, with a focus on whether the Federal Government should introduce a federal human rights Act. 

For thirty years ALHR has called on Australia to comprehensively incorporate its international human rights law obligations into domestic legislation via a federal Human Rights Act and state-based Human Rights Acts. ALHR was a member of the Steering Committee of the Human Rights Act for Queensland Alliance. Together with the New South Wales Council for Civil Liberties (NSWCCL), ALHR co-convenes the Human Rights Act for New South Wales Alliance. Together with the Rights Resource Network of South Australia and the South Australian Council of Social Service (SACOSS), ALHR Co-convenes the Human Rights Act for South Australia Campaign. Together with the Aboriginal Legal Service of Western Australia Inc, ALHR co-convenes the Western Australia for a Human Rights Act Coalition.

ALHR endorses the Western Australia for a Human Rights Act Alliance (WA4HRA) submission and recommendations to this Inquiry which reflect the call for a federal Human Rights Act and the introduction of state and territory-based Human Rights Acts in all jurisdictions across Australia. Australia is a federation and human rights are for everyone, everywhere, all of time.  Every person in Australia should be a beneficiary of the legal articulation and protection of their human rights, no matter who they are or where they live, and the work of all governments across Australia should be driven and guided by a culture of respect for the legally binding nature and fundamental importance of human rights.

ALHR is a member of the Advisory Committee of the National Charter of Rights Campaign Coalition and we endorse the Charter Campaign submission and recommendation provided to this Inquiry.

With respect to the rights of persons with a disability in Australia, ALHR joins with other key disability organisations such as the Disability Advocacy Network Australia and Children and Young People with Disability Australia in endorsing the submission and recommendations to this Inquiry by People with Disability Australia.

With respect to the rights of children in Australia, ALHR makes its own very brief submissions below and endorses the submissions and recommendations to this Inquiry by:

• Save the Children Australia; 
• SNAICC; and 
• the Australian Child Rights Taskforce.

With respect to the environment and human rights, ALHR makes its own submissions below and endorses the submission and recommendations of the Environmental Defenders Office to this Inquiry.

With respect to economic, social and cultural rights (ESCR), ALHR makes its own very brief submissions below and endorses the submission and recommendations of the Economic, Social and Cultural Rights (ESCR) Network (Australia & Aotearoa/New Zealand)

READ ALHR’s FULL SUBMISSION TO THE INQUIRY HERE

ALHR’s Dr Tania Penovic appeared before the PJCHR’s hearing in Sydney to give oral evidence further to our submission.

READ ALHR’s RESPONSE TO QUESTION ON NOTICE HERE

ALHR’s RECOMMENDATIONS TO THE INQUIRY:

1.The federal Parliament should, as a matter of priority, introduce a comprehensive federal Human Rights Act.

2. A draft exposure Bill should be put to the Australian community in order to ensure that all Australians have the opportunity to provide feedback on the proposed legislation.

3. A federal Human Rights Act should explicitly recognise the foundational principle within the Universal Declaration of Human Rights (UDHR) that all human rights are universal and inalienable, indivisible, interdependent and interrelated and should protect all people equally within Australia and its territories. A federal Human Rights Act should draw on international jurisprudence in setting out how to best balance competing rights and explicitly acknowledge that the exercise of one person’s human rights must respect the human rights and dignity of other humans.

4. A federal human rights Act should apply to all federal government entities, as well as non-government entities exercising public or private functions.

5. A federal Human Rights Act should give full protection to all human rights in line with Australia’s international legal obligations under the seven core United Nations human rights treaties Australia has ratified and held itself out to be bound by.

6. In advancing equality, a federal human rights Act should recognise that discrimination may arise on intersecting grounds rather than being confined to a single attribute.

7. A federal Human Rights Act should give full effect to Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), including by ensuring the obligations of ‘progressive realisation’ are fully justiciable in Australian courts.

8. A federal Human Rights Act should also comprehensively adopt the United Nations Declaration on Rights of Indigenous Peoples (UNDRIP) in order to protect the human rights of First Nations Peoples. It is integral that a federal Human Rights Act reflect an understanding of the culture of Aboriginal and Torres Strait Islander peoples as essential to the distinctive character of Australia as a nation, including but not limited to specifying that: Aboriginal and Torres Strait Islander peoples must not be denied the right, with other members of their community, to enjoy, maintain and control their ancestral lands, identity and cultural heritage, kinship ties, traditional languages and knowledge and natural resources;  Aboriginal peoples and Torres Strait Islander peoples have the right not to be subjected to forced assimilation or destruction of their culture; and Aboriginal and Torres Strait Islander peoples have the right to self determination

9. A federal Human Rights Act should apply to children and specifically include all rights set out within the United Nations Declaration on the Rights of the Child (CRC).

10. A federal Human Rights Act should protect the right to a clean, healthy and sustainable environment and associated procedural rights that are essential to the meaningful realisation of this right.

11. Similar to the proposals by the Australian Human Rights Commission (AHRC), a federal Human Rights Act should recognise and provide for specific participation rights belonging to certain members of Australia’s community, at a minimum reflecting participation rights established under the UN core treaties such as the CRC, CRPD and the UNDRIP.

12. The  AHRC has proposed an additional duty, the ‘equal access to justice duty,’ and ALHR supports this recommendation. This duty would impose a positive obligation on public authorities to take active steps to provide sufficient access to legal processes, such as by providing access to necessary support to navigate the justice system. It is intended that this positive duty will bolster the protections already afforded under the common law principle of procedural fairness.

13. Human rights within a federal human rights Act should only be subject to lawful, reasonable and demonstrably justifiable limitations A Federal Human Rights Act should set out which rights are absolute and non-absolute and which are derogable and non-derogable. ALHR submits that the right to life, the right to freedom from torture and slavery, freedom from forced work, the right to liberty and security of person, humane treatment when deprived of liberty, the right to a determined period of detention if liberty is deprived, the right to a fair hearing and the rights of children in the criminal process should be absolute or non-derogable (not able to be denied, limited or restricted in any way).  ALHR submits that human rights which are not absolute may be subject to reasonable and proportionate limitations and is this regard a federal Human Rights Act should: specify that such rights should only be limited after careful consideration and only in a way that can be justified in a free and democratic society based on human dignity, equality, freedom and the rule of law; and protect human rights from limitation beyond what is permitted in the legislation.

14. A federal Human Rights Act should be a ‘dialogue model’ of human rights protection. ALHR supports a model akin to the ‘dialogue model’ of human rights protection implemented through Queensland, ACT and Victorian human rights legislation. Pursuant to this model, a federal Human Rights Act could: Require Parliament to consider human rights when passing and amending legislation. Rather than being dismantled, the present parliamentary scrutiny regime should be incorporated within a federal Human Rights Act; Require the executive, including all government officials and decision-makers to take human rights into account when developing and implementing policies, making decisions and administering the law; and Enable courts and tribunals to interpret legislation consistently with human rights. In this regard, ALHR recommends that a federal Human Rights Act specifically require courts to consider relevant international law and international jurisprudence when interpreting the rights protected in the Act. Various dialogue models introduced in Australian states empower courts to issue a declaration for Parliament to consider if they find that a law breaches human rights. The AHRC model proposes that when a court has found a parliamentary intention to override human rights protected within a federal Human Rights Act, the Attorney-General should be required to trigger a process for reviewing the law in question. ALHR is supportive of this proposal.

15. A federal Human Rights Act must protect the international legal right to an effective remedy and establish accessible pathways for anyone who has their human rights breached. There are no rights without remedy and a federal Human Rights Act must enable everyone to obtain a timely and appropriate remedy via a complaint mechanism and independent cause of action that is cost-effective and cost-protected. In this regard ALHR recommends that a federal Human Rights Act include an accessible enforcement mechanism and a full range of remedies for breach. Remedies should include: an independent cause of action for breaches of the human rights protected in the Act. ALHR submits that a Federal Human Rights Act should allow for the commencement of legal action in an accessible tribunal such as a specialist human rights division in the Administrative Appeals Tribunal or a newly constituted tribunal within the Federal Court of Australia; the ability to make a complaint to the AHRC and for the complaint to be heard and reconciled by the Commission’s internal complaint handling mechanisms for confidential conciliation; and where a conciliation is unsuccessful, the ability for a complaint to be made to an accessible tribunal such as a specialist human rights division in the Administrative Appeals Tribunal or a newly constituted tribunal within the Federal Court of Australia; the full range of judicial remedies for breach, including declarations, injunctions, orders to cease the offending conduct and compensation and reparations, while protecting complainants against adverse costs orders, except in exceptional circumstances. provision for class actions to be brought, in recognition that human rights are often of special significance to a particular group, with standing given to appropriate representative organisations in the position to support or represent individuals and groups of people whose human rights have been breached and who have specialised skills or knowledge that is helpful for a particular group(s).

16. A federal human rights Act should protect complainants against costs (save for frivolous or vexatious complaints).

17. There should be a 24 month time limit for complaints under a federal Human Rights Act to be made to the AHRC.  Further, there should be the ability to exercise discretion to accept complaints made outside this timeframe.

18. A federal Human Rights Act should provide for statutory review of the legislation at specified intervals, which results in action and monitoring based upon United Nations reports, community and civil society engagement, review of case studies under the Act, analysis and review as to whether adequate resources are being committed to realise the human rights protected by the Act.

19. A federal Human Rights Act should be accompanied by adequate resourcing. Resourcing must include additional funding for the AHRC and delivery of a broad program of human rights education, aimed at fostering understanding, awareness and respect for human rights and a human rights dialogue in general society and culture, as part of any reforms to Australia’s human rights framework.

20. ALHR recommends that in addition to including UNDRIP rights within a federal Human Rights Act, the federal Government, in consultation with First Nations peoples, develop a national program to implement UNDRIP.

21. ALHR recommends that the federal Government schedule the UNDRIP to the definition of human rights in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) in order to explicitly include the UNDRIP as an instrument for which the Parliamentary Joint Committee on Human Rights (PJCHR) has reporting functions.

22. ALHR recommends that the UNDRIP be declared a ‘relevant international instrument’ within the definition of ‘human rights’ in the Australian Human Rights Commission Act 1986 (Cth), in order that the rights declared by the UNDRIP come within the inquiry and complaints function of the AHRC.

23. ALHR recommends that the federal Government establish a stand alone National Commissioner for Aboriginal and Torres Strait Islander Children and Young People.

24. ALHR recommends that the federal Government establish a stand alone National Commissioner for LGBTIQA+ Australians

25. ALHR recommends that the federal government ensure that, if it enacts a federal Human Rights Act, existing state and territory Human Rights Acts are allowed to co-exist. Further, ALHR recommends that the federal government place the enactment of state and territory Human Rights Acts in remaining jurisdictions on the agenda of National Cabinet meetings.

 

Attachments

ALHR Submission_ Inquiry Into Australia's Human Rights Framework-FF (1) (1)
181023 PJCHR-ALHR Response to Question on Notice