Inquiry into Australia’s Human Rights Framework
Parliamentary Joint Committee on Human Rights
PO Box 6100,
Parliament House
Canberra ACT 2600
human.rights@aph.gov.au
Dear Madam/Sir
Inquiry into Australia’s Human Rights Framework
This submission addresses the proposed implementation of a Human Rights Act at the federal level that resembles the Human Rights Act (2019) passed in Queensland. Human rights are defined as the fundamental rights said to be inherent in every individual by virtue of their humanity.[1] Since the establishment of the United Nations, human rights have been extensively codified in international law. Whilst Australia has been a party to many of these international treaties regarding human rights, it is yet to fully ratify these obligations into its own domestic legislation.
Currently, Australia is the last western democratic country to refrain from explicitly protecting their human rights in legislation, which has subsequent implications for the protection of human rights for Australian citizens.[2] It has been argued that the human rights of Australian citizens are protected through the Constitution, the common law and state legislation.[3] These protections have proven to be inadequate, as was evident in 2014, when the Australian Law Reform Commission uncovered 121 Commonwealth provisions that were considered to encroach upon human rights.[4] Therefore, the QCCL argues that the implementation of a Human Rights Act is necessary for the protection of the rights and freedoms of Australian citizens.
To adequately address the issue regarding a federal Human Rights Act, this submission will be split into two parts:
There should be a federal Human Rights Act
It should closely resemble the Queensland Human Rights Act (2019)
I Federal human rights act
A Current Human Rights Protections are Insufficient
Australia is currently party to seven important international human rights treaties, with two key treaties covering the widest range of human rights, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).[5] These treaties must be ratified into domestic law for Australia’s international human rights obligations to be sufficiently upheld. There are three mechanisms through which Australian human rights obligations are currently realised: the Constitution, common law, and state legislation.
The human rights that are upheld in the Constitution are limited in scope. The rights and freedoms expressly outlined in the Constitution include:
· the right to vote (s 41)
· the right for the Commonwealth to not acquire property, accept on just terms (s 51(xxxi))
· The right to trial by jury (s 80)
· the freedom for interstate trade (s 92)
· freedom of religion (s 116)
· the right to a trial by jury (s 18)
There are also implied freedoms that have been ascertained by the High Court from the Constitution, such as the implied freedom of political communication. The rights that are outlined in the Constitution are narrow in scope and fail to implement Australia’s international obligations sufficiently. The High Court has ultimately upheld that the right to equality cannot be implied from the text of the Constitution, which is indicative of the limitations regarding the constitutional protection of human rights.[6] The intention of constitution makers was to leave the protection and codification of human rights to be enshrined in the common law and legislation, which also indicates the limited scope that human rights were intended to be upheld by the Constitution.[7]
The human rights protected under common law include a right to a fair trial, the freedom of movement, and the double jeopardy principle.[8] The protection that common law provides over fundamental human rights is obtained through the principle of legality in statutory interpretation.[9] The principle of legality has been recognised in the common law, initially in the 1908 High Court case of Potter v Minahan, but also more recently in the case of Re Bolton; Ex parte Beane.[10] It posits that unless the parliament has manifested an unequivocal intention to intervene with human rights or freedoms, the courts will not construe a statute as having this affect.[11] In addition to this, common law rights are also protected through statutory interpretation that uphold the notion that in cases of ambiguity between the statutes, the court must interpret the statute in a way that is in favour with Australian human rights obligations.[12] Whilst the common law has endeavoured to protect human rights, these can be overruled through parliamentary legislation, which highlights their inefficacy in protecting human rights and the need for a Human Rights Act.[13]
Parliament have also passed laws that are intended to protect the rights and freedoms of Australian citizens. The legislation that encompasses this includes the Human Rights Commission Act (1986), the Age Discrimination Act (2004), the Disability Discrimination Act 1992), the Racial Discrimination Act (1975) and the Sex Discrimination Act (1984).[14] The majority of these acts are only partial implementations of Australia’s international obligations, with a large proportion of human rights still not ratified into Commonwealth legislation.[15] Furthermore, the implementation of antidiscrimination laws presents a method of redressing violations to human rights however they do not act as protectants and preventative measures against breaches of human rights.[16]
Finally, individual states have also passed human rights protection acts such as Victoria, Queensland and the ACT. This is problematic for the protection of human rights for Australian citizens, as it is rendered entirely dependent on the state in which an individual resides in.[17] This unequal coverage of human rights across Australia is wholly inadequate in the overall protection of human rights and freedoms for Australian citizens, therefore requiring an overarching federal legislation.
Upon consideration of all the sources of human rights law in Australia, it is evident that the current legal provisions that are in place are inadequate in achieving sufficient and in particular broad human rights protections for Australian citizens. They present as insufficient due to their inability to uphold Australia’s international obligations. Therefore, a federal Human Rights Charter poses as a compelling solution to these apparent inadequacies of the current legal protections.
B Efficacy of Human Rights Act
We propose that the implementation of a federal Human Rights Act would resolve the inconsistencies and inadequacies that are evident in the current human rights protections. The implementation of a Human Rights Act will ensure that Australia’s obligations to international treaties are sufficiently codified and upheld in domestic legislation.[18] This is not only beneficial to Australian citizens, as it ensures their rights and freedoms are protected, but it also signifies Australia’s commitment and support of international law regarding human rights.
Furthermore, the implementation of a Human Rights Act will provide a more cohesive legal approach to human rights. It will ensure that all Australian citizens will be subject to human rights, not just those in states that have passed human rights legislation. In addition to this, it will ensure that the human rights contained in the Constitution, common law and parliamentary legislation will all be codified into the one Human Right Charter, therefore providing clarity regarding the source of human rights protections in Australian law.
Finally, the creation of a Human Rights Act will render human rights of cultural significance and importance not only for Australian citizens but also for the Parliament and the executive.[19] The implementation of a Human Rights Charter will ensure that citizens are cognizant of their human rights.[20] This is particularly important for vulnerable groups who are subject to human rights violations, such as Indigenous Australians or asylum seekers, who experience human rights abuses at a disproportionate level.[21] Implementing human rights into legislation render it of cultural significance, meaning that not only will citizens be more cognizant of their human rights, but the Parliament and executive will be held accountable to consider the impact of their decisions on human rights.[22] A stronger implementation of human rights into Australian law will hopefully decrease the level of human rights infringements that are faced by marginalised individuals.
II Federal Human Rights Act Should Closely Resemble the Human Rights Act 2019 (Qld)
In 2019, Queensland introduced a Human Rights Act 2019 (‘HRA’) which was heavily based upon the Victorian Charter of Human Rights and Responsibilities 2006 (the ‘Charter’). However, the Queensland HRA clarified some issues and difficulties with the Charter. Therefore, it is the preferred model on which to base the Federal Human Rights Act.
A Key Feature of the HRA – ‘Dialogue’ Model
Arguably the most significant feature of the HRA and Victorian Charter is the ‘dialogue’ model, which refers to a system that aims to promote a dialogue about human rights between the three branches of government (executive, legislature, and judiciary).[23] This model is embodied in many sections of the HRA. Firstly, s 38 requires that a member who proposes to introduce a Bill must prepare a statement of compatibility, which states whether the Bill is compatible with human rights and how, and if not, the nature and extent of the inconsistency. This creates the requirement that new legislation is carefully scrutinised from the early stages.
There are also several provisions relating to the courts. For instance, s 48 allows the courts to interpret statutes in a way which is consistent with human rights. Queensland’s provision is worded somewhat differently than the Victorian counterpart to address issues raised in Momcilovic v The Queen and in Slaveski v Smith, which is affirmed in the Explanatory Notes of the Queensland Human Rights Bill.[24] That is, the court is not permitted by s 48(1) to change the true meaning of a statutory provision, and interpretative powers are limited. If legislation cannot be interpreted compatibly with human rights (or any limitations are not justified and proportionate – s 13), the Supreme Court may issue a declaration of incompatibility (s 53). However, this declaration does not affect the validity of the statutory provision or create a legal right or cause of action (s 54). Following this, the relevant Minister must prepare a response to the declaration, and the portfolio committee must report on the declaration to the Legislative Assembly (ss 56 and 57). The interaction between the courts, the executive and the legislative assembly clearly demonstrates the ‘dialogue’ model.
This model is ideal, as it requires the political branches (with the assistance of the courts) to consider human rights and carefully scrutinise legislation at each stage of the legislative process (including where legislation is challenged). This helps to create a culture of carefully considering and respecting human rights, as well as a discussion around human rights.
B Criticisms of the HRA/Charter
1 Diminishing Parliamentary Sovereignty
One common criticism of a statutory Human Rights Act that it would diminish parliamentary sovereignty by limiting the legislative power of Parliament. However, several provisions of the Queensland HRA make it clear that the goal is to promote further consideration and discussion of human rights, not to limit the power of the Parliament.[25]
Firstly, s 13 of the Queensland HRA provides that human rights are subject to reasonable limits, and a law may still be compatible with human rights so long as the limitations are reasonable and demonstrably justifiable (s 8). This demonstrates that human rights are not absolute. Additionally, the Parliament may make an ‘override declaration’ under s 43 if an Act or provision of an Act is intended to be incompatible with human rights, and the Supreme Court may not make a declaration of incompatibility in these cases (s 53(3)). Further, even if a declaration of incompatibility is issued with respect to a legislative provision, the validity of the provision is not affected (s 54).
These sections allow the Parliament to make laws which are contrary to human rights but requires that human rights be considered at every stage. This assists in creating a culture of respect for human rights without placing significant burdens on the Parliament and its ability to function effectively.
Additionally, the fact that these rights are not constitutionally entrenched makes it easier for parliamentary sovereignty to be preserved. Statutory human rights protections such as the HRA may be amended, leaving the ultimate power with the Parliament, whereas constitutionally entrenched rights are much more permanent and give courts significantly more power. This would be undesirable.[26] Therefore a Human Rights Act will preserve parliamentary sovereignty.
2 Involve courts in public controversy
A common criticism of a Human Rights Act is that it would involve courts in public controversy, which will undermine public trust in courts. This is particularly pertinent at a federal level, as federal courts are constrained by Ch III of the Constitution, and these limitations must be taken into account.[27]
While these criticisms are noted, the QCCL submits that the courts already are required to resolve complex and politically charged issues. Often, reasons of legal policy, or the political impacts of a decision are cited in judgments. Additionally, as discussed above, the interpretative provision (s 48) of the Queensland HRA places further limits on the courts interpretative power in comparison to the Victorian Charter, thus the Queensland HRA is a preferable model.
3 Ineffectiveness of a Human Rights Act
As noted above, statutory human rights protections such as a Human Rights Act are not absolute, and they must be limited to (a) protect parliamentary sovereignty and (b) to keep courts out of public controversy. Therefore, a common criticism of a Human Rights Act is that it may be ineffective as the Parliament and executive may still breach human rights. However, the fact that a Human Rights Act would not involve absolute protection does not make it ineffective.
The position of the QCCL is that a Human Rights Act is not a panacea, but merely a tool which citizens may use to protect themselves from human rights abuses. The goal of a Human Rights Act is to create a culture of respect for human rights in all three branches of government (particularly the political branches), and to increase human rights education among the general public. A Federal Human Rights Act would still be effective in promoting human rights in Australia even though it does not place absolute limitations on the legislative power of the Parliament.
Conclusion
Therefore, current human rights protections at a national level are insufficient. The existing protections of human rights are limited and patchwork. A Federal Human Rights Act would resolve these issues.
The first major improvement that a Human Rights Act would bring is a comprehensive protection for human rights. Of course an Act on the Queensland model will not cover all rights, but for those it does it will provide protection in areas not currently covered by specific legislation or the common law.
A Human Rights Act, even without a statutory cause of action would give disaffected, disadvantaged, marginalized and other aggrieved persons in society a place to redress their grievances.[28] With breaches of human rights judicially enforceable an incentive is created to avoid non-compliance and rights considerations are entrenched into policies and practices
This would create a culture of active public scrutiny of government decisions, and of respect for human rights within the Parliament and executive. It is for these reasons that the QCCL recommends a Federal Human Rights Act (which closely resembles the Queensland HRA) is introduced.
This submission was prepared by QCCL intern Elisabeth McCoombes.
We trust this is of assistance to you in your deliberations.
Y
[1] Ruq Abdul Manan, ‘Does Australian Law Adequately Protect Human Rights?’, Public Interest Law Network – Advocating for the Public Interest (Web Page, 21 July 2021) < https://www.publicinterestlawnetwork.com/home/category/Digest+2021+-+Issue+1>
[2] Ibid
[3] Human Rights Commission, Position Paper: A Human Rights Act for Australia (Summary Report, No 1, December 2022) 47.
[4] Abdul Manan, ‘Does Australian Law Adequately Protect Human Rights?’, Public Interest Law Network – Advocating for the Public Interest (Web Page, 21 July 2021) < https://www.publicinterestlawnetwork.com/home/category/Digest+2021+-+Issue+1>
[5] Human Rights Commission, Position Paper: A Human Rights Act for Australia (Summary Report, No 1, December 2022) 45.
[6] Leeth v Commonwealth (1992) 174 CLR 455, 85.
[7] Ibid, pg. 49
[8] Ibid, pg. 52
[9] Australian Law Reform Commission, Common Law Reform, (Report, No 129, 2016) 2.27
[10] Ibid, p. 2.28
[11] Ibid, p. 2.29
[12] Human Rights Commission, Position Paper: A Human Rights Act for Australia (Summary Report, No 1, December 2022) 52.
[13] Ibid, pg. 52
[14] Australian Government Attorney-General’s Department, Human Rights Protections, (Web Page, < https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-protections>)
[15] Human Rights Commission, Position Paper: A Human Rights Act for Australia (Summary Report, No 1, December 2022) 55.
[16] Ibid, 55.
[17] Ibid, 56.
[18] Ruq Abdul Manan, ‘Does Australian Law Adequately Protect Human Rights?’, Public Interest Law Network – Advocating for the Public Interest (Web Page, 21 July 2021) < https://www.publicinterestlawnetwork.com/home/category/Digest+2021+-+Issue+1>
[19] Ibid
[20] Ibid
[21] George Williams, ‘The Australian Constitution and Human Rights: A Centenary View’ (2001) 24(3) UNSW Law Journal 782, 6.
[22] Ruq Abdul Manan, ‘Does Australian Law Adequately Protect Human Rights?’, Public Interest Law Network – Advocating for the Public Interest (Web Page, 21 July 2021) < https://www.publicinterestlawnetwork.com/home/category/Digest+2021+-+Issue+1>
[23] Bruce Chen, ‘The Human Rights Act 2019 (Qld): Some perspectives from Victoria’ (2020) 45(1) Alternative Law Journal 4, 4.
[24] Ibid, 6-7.
[25] Ibid, 8.
[26] PA Keane, ‘In Celebration of the Constitution’ (Speech, National Archives Commission, 12 June 2008).
[27] Helen Irving, ‘The Dilemmas in Dialogue: A Constitutional Analysis of the NHRC’s Proposed Human Rights Act’ (2010) 33(1) University of New South Wales Law Journal 60, 65.
[28] Gareth Evans, 1973, ‘An Australian Bill of Rights?’ 45(1) The Australian Quarterly 4, 15.