Analysis of Options Identified During The National Human Rights Consultation

Analysis of options identified during the
National Human Rights Consultation

Final summary report

September 2009
Report to Attorney-General's Department

The Allen Consulting Group ii

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Suggested citation for this report:
The Allen Consulting Group, Analysis of Options Identified during the National Human
Rights Consultation (2009).

Disclaimer:
While the Allen Consulting Group endeavours to provide reliable analysis and believes the
material it presents is accurate, it will not be liable for any claim by any party acting on such
information.

The Allen Consulting Group 2009

The Allen Consulting Group iii

Contents
Summary of assessment
1.1 Context for this analysis 1
1.2 Policy options being assessed 1
1.3 Methodological approach 6
1.4 Key assessments 8

Appendix A
Details of the variations to a Human Rights Act
A.1 Variables used to distinguish models of a Human Rights Act 22
A.2 Details of four models of a Human Rights Act 22

Appendix B
Assessment of options using the analytical framework
B.1 Assessment of options against benefits criteria 24
B.2 Assessment of options against implementation timeliness and
costs criteria 25
B.3 Assessment of options against risks assessment criteria 26

S U M M A R Y A N A L Y S I S O F O P T I O N S I D E N T I F I E D D U R I N G T H E C O N S U L T A T I O N


Summary of assessment
1.1 Context for this analysis
The Allen Consulting Group (ACG) has been commissioned by the Australian
Government Attorney-Generals Department (Commonwealth) to: develop a set of
criteria against which the potential effects of various policy options proposed in the
National Human Rights Consultation (Consultation) can be assessed; to undertake
an assessment of the policy options against this evaluation framework; and to report
on the outcome of this assessment.
This framework allows for the evaluation of the options in terms of their
effectiveness, potential costs and benefits, and potential risks or unintended
consequences. The purpose of this evaluation is not to provide a recommended
approach, but rather to provide the Consultation Committee with a consistent
method for the assessment of a set of diverse policy responses.
1.2 Policy options being assessed
The options have been derived from the Consultation undertaken by the
independent National Human Rights Consultation Committee, and are shown in
Table 1.1. They represent the Consultation Committees views on the key options
raised by stakeholders in consultations and submissions during the Consultation
process, which are within the scope of the Consultation Committees Terms of
Reference.
The Consultation Secretariat also provided Allen Consulting Group with a
representative sample of publicly available submissions, in order to conduct this
assessment.
Table 1.1
SUMMARY OF POLICY OPTIONS
Options and sub-options
Option 1 Human Rights Act
Sub-options four models with varying scope
Option 2 Education in relation to human rights
Sub-options national curriculum; public service; public awareness raising measures
Option 3 Parliamentary scrutiny committee for human rights
Option 4 Increased role for AHRC
Option 5 Consolidated anti-discrimination laws
Option 6 New NAP for human rights
Option 7 Do nothing, maintain current arrangements
Abbreviations: AHRC Australian Human Rights Commission; NAP National Action Plan



A Human Rights Act can take a number of different forms and also take into
account different human rights.
1
For this reason, four models of a Human Rights
Act are considered under option 1. The variations are designed to reflect the
concerns and desires expressed in submissions to the Consultation. In summary the
four models have the following features (see Appendix A for more detail on the
variations):
Model 1 includes the widest scope of human rights (civil, political, economic,
social, cultural, and some third generation rights), provides a direct cause of action
(access to court and monetary damages), allows for the judiciary to strike down
legislation (primary and delegated) where it is in breach of the Act, requires a
statement of compatibility upon introduction of legislation and requires all public
authorities and private entities conducting public functions to comply with the Act.
This is the strongest form of the Act and is unlikely to gain wide support due to the
view held by many that the courts capacity to strike down legislation is an
unacceptable encroachment upon parliamentary sovereignty. The Canadian Charter
of Rights and Freedoms is an example of a strong Human Rights Act.
2

Model 2 includes civil, political and a smaller range of economic and social rights
(such as the right to health and education), provides a direct cause of action
excluding monetary damages, and allows for the judiciary to interpret legislation
consistently with human rights. Where an inconsistency arises, this model requires
parliament to be informed and respond publicly. All public authorities and private
entities with public functions must comply with the Act.
Model 3 includes protection only for civil and political rights, does not provide a
direct cause of action, and allows the judiciary to interpret legislation consistently
with human rights subject to the purpose of the legislation. Where delegated
legislation is found to be inconsistent with the Act, it becomes inoperative only to
the extent of the inconsistency. Members of Parliament must make a statement of
compatibility or explain an inconsistency, when introducing new legislation into
parliament.
Model 4 includes protection only for civil and political rights, no direct cause of
action, and a principle that legislation is to be interpreted consistently with human
rights set out in the Act. Under this model, there is no capacity for a court to
invalidate inconsistent legislation or to formally notify parliament of any
inconsistency. Members of Parliament must make a statement of compatibility or
explain an inconsistency on introduction of legislation into parliament. A final
feature of this model is that no obligation is placed upon public or private entities to
comply with the rights set out in the Act.

1
The Terms of Reference do not allow for consideration of a constitutionally entrenched Bill of rights and
require that any options identified must preserve the sovereignty of parliament.
2
The Canadian Charter is a constitutional charter, and is based upon and replaced the 1960s Canadian
legislative Bill of Rights.



Many participants at public meetings held as part of the Consultation said we dont
know what our rights are, where to find them or what to do if our rights are
breached. They also called for measures to increase awareness of human rights
amongst the community in particular, incorporating human rights education into
a national curriculum, introducing human rights education for administrative
decision-makers and a broader campaign of public awareness raising measures.
These concerns are reflected in the three alternative variations within the education
option.
National Curriculum
Human rights education could be incorporated into various aspects of the new
national curriculum.
3
It may be incorporated in modules, or as an ongoing
component of education at all levels of schooling. Consultation participants called
for education that provides students with information about what human rights are,
where they come from, what to do if they are violated, as well as information about
the history of Australia, our system of democracy, responsibilities we have as
people living in Australia, and a broader understanding of global politics.
Public Service education
Service provision agencies, such as Centrelink, make decisions that affect peoples
material wellbeing and may affect their human rights. It was frequently alleged that
many breaches of human rights are made during administrative decision making
processes.
The Victorian Department of Justice and Department of Human Services note that
the introduction of the (Victorian) Charter of Human Rights and Responsibilities
has encouraged decision makers often people on the front counter to be more
transparent in their decision making processes and to take their clients human
rights into consideration. To achieve this, Victoria implemented human rights
training for all public servants. The Consultation heard frequent calls for explicit
human rights training for government service provision agencies, such as
Centrelink and the Department of Immigration and Citizenship.
Public awareness raising measures
Consultation participants called for a broader public awareness raising campaign,
informing people of what their human rights and responsibilities are, and what to do
if they feel they have been violated. Suggested measures include TV commercials,
human rights education vans, posters and festivals.

3
Development of a national curriculum is currently underway and is said to be futures-oriented and will outline
the essential skills, knowledge and capabilities that all young Australians are entitled to learn, regardless of
their social or economic background or the school they attend. The Australian Curriculum, Assessment and
Reporting Authority will take on the responsibility for the national curriculum.



Many submissions to the Consultation proposed a new parliamentary scrutiny
committee for human rights. The purpose of having laws scrutinised is to ensure
they are consistent with human rights principles, and in the event that they are not,
that this is a deliberate, rationalised and publicly transparent decision made by
parliament. Pre-enactment scrutiny helps to catch laws that would otherwise pass
and be enforced, contrary to the rights of individuals. In addition, scrutiny
committees can often consider laws that have already been passed.
Scrutiny of proposed Bills could operate as part of a human rights system that does
or does not include a Human Rights Act.
Currently in Australia there exists a Senate Scrutiny of Bills Committee and a
Senate Scrutiny of Regulations and Ordinances Committee. The latter scrutinises
delegated legislation for compliance with non-partisan principles of personal rights
and parliamentary propriety and the former scrutinises Acts of Parliament as to
whether they trespass unduly on personal rights and liberties.
The current system attracted the following criticisms:
there is no clearly defined list of rights and liberties that should not be unduly
trespassed upon;
the Committees reporting function is limited and cannot take any stronger
measures, such as declaring that a Bill is incompatible with human rights;
the Committees timeframe does not allow adequate consideration or review of
proposed laws, nor consideration of existing law; and
the Committees work is not adequately publicised, nor is there a body of
jurisprudence developed.
Option 4 increased role for AHRC
Established in 1986, AHRC is an independent statutory organisation and reports to
the Commonwealth Parliament through the Attorney-General. The AHRC is created
by, and its powers are derived from, the Australian Human Rights Commission Act
1986.
Currently, the AHRC develops human rights education programs, advises the
Commonwealth on human rights issues, conducts research into human rights issues,
and inquires into and conciliates complaints of unlawful discrimination.
Extension of the Commissions role
4

The Commissions role could be extended to include:
the power to conduct inquiries on any matter affecting human rights in
Australia, as well as powers necessary to conduct such inquiries appropriately;
the power to consider (on its own motion) and report on the human rights
implications of any existing or proposed Commonwealth, state or territory
legislation;

4
Largely drawn from HRLRC 2009, Engage, Educate Empower: National Human Rights Consultation
Submission on Measures and Initiatives to Promote and Protect Human Rights, April 2009.



the power to initiate investigations on its own motion where it becomes aware
of potential infringements of anti-discrimination legislation and other human
rights instruments (including economic, social and cultural rights, and emerging
human rights principles such as the right to a clean, sustainable environment),
and conduct those investigations appropriately;
5

the power to, on its own motion, seek enforcement of conciliation agreements
that are entered into as a result of AHRC procedures;
the power to make binding codes of conduct or guidelines setting out the
process for the resolution of complaints by the AHRC under Commonwealth
anti-discrimination law and other human rights instruments; and
raise the prominence of the AHRC through increased human rights research
activity, educational activities and provision of information.
Option 5 Consolidated anti-discrimination legislation
Many Consultation participants indicated that they wanted to see improvements in
anti-discrimination legislation in Australia. Anti-discrimination law in Australia has
a multi-tiered structure. Currently, states and territories each have a Human Rights
Commission or equivalent body, as well as individual anti-discrimination laws. The
Commonwealth also has the AHRC and various discrimination acts. This means
that there are different laws and processes across nine jurisdictions.
Individuals and businesses alike reported it confusing to make or respond to a
complaint. Differences in available grounds, processes for making a complaint, and
remedies, contribute to this complexity. For example, discrimination on the basis of
marital status is unlawful in all states and territories except for Queensland and the
ACT, whilst discrimination on the basis of religious belief or activity is unlawful in
each state and territory except for South Australia and New South Wales.
A further discrepancy exists between anti-discrimination laws in the states and
territories and those at the Commonwealth level: for example, discrimination on the
basis of sexual orientation is unlawful in all states and territories, but the
Commonwealth has yet to legislate in this area.
There are also inconsistencies between the Commonwealth laws dealing with
discrimination on the basis of age, race, sex and disability.
Creation of national legislation for anti-discrimination
This involves the creation of a national piece of legislation that can consolidate and
build on current Commonwealth anti-discrimination laws. Such legislation may
increase the grounds available for complaints about discrimination in accordance
with many improvements already agreed to by states and territories. Its other
purpose may be to create one piece of anti-discrimination legislation that
consolidates the current range of acts.

5
Note that such an investigative function could also be vested in an Ombudsman.



In the Vienna Declaration and Programme of Action, adopted in June 1993, the
World Conference on Human Rights recommended nations consider drawing up a
National Action Plan (NAP). A NAP enables government to develop a clear
strategy, as well as identify concrete steps to be taken, to assist in the protection and
promotion of human rights. A NAP is not limited to legal commitments to human
rights, but may also include commitments to improve policy and service delivery.
NAPs often include commitments to reform or implement stronger legal
frameworks, strengthen regard for international human rights standards in domestic
law. They result in better protection of individuals human rights and a stronger
human rights culture generally.
Australia currently has a NAP, which was last updated by the Howard Government
in 2004. Key criticisms of the current NAP include:
it only reports current actions rather than sets a future strategy for government;
a lack of commitment for resources;
a lack of assessment of the Australian human rights situation (for instance, in
terms of using key indicators or measures of the extent of awareness and
protection of human rights); and
the inability to address specific needs of vulnerable groups in Australian
society.
In seeking to address these criticisms, this option involves the development of a
new NAP with a stronger strategic focus and which includes future commitments
including consideration of resource needs to improve human rights protections
in Australia.
It was not possible within the scope of this review to ascertain the preferred detail
of such a NAP (that is, what specific commitments would be included in the NAP).
The assessment of this option, therefore, is focused on the process and framework
that a NAP would provide, rather than specific commitments.
Whilst many see the need for human rights to be better protected and promoted,
others see that the current system is adequate and does not require any
alterations. Material gathered from community roundtable discussions suggests
that a minority favour this option. Specific criticisms of the current
arrangements have been rehearsed in the descriptions of the other options.
1.3 Methodological approach
Each option was assessed individually, rather than in combination with other
options (although there is potential for some options to be implemented
concurrently). This was so as to focus on the key aspects of each of the options, as
well as to not complicate the assessment with the multiplicity of combinations and
permutations possible.



A multi-criteria analysis was used to assess the options: this is an analytical
framework that allows a set of qualitatively different options to be compared using
common criteria. Three categories of assessment criteria were used (see Table 1.2);
these were agreed to reflect the important considerations for government in
reviewing the options.
Table 1.2
ANALYTICAL FRAMEWORK ASSESSMENT CATEGORIES AND THEIR CRITERIA
Assessment category with description Assessment criteria
Benefits to stakeholders
Assesses the effectiveness of an option
in terms of how well the option is likely
to work, and how stakeholders will
benefit
Clarification of rights for individuals
Better human rights protections
Certainty of obligations
Improved capacity to seek redress
where rights have been breached
Implementation timeliness and costs
Assesses the cost effectiveness and
proportionality of an option
Transition costs
On-going costs
Timeliness of potential changes
Risks
Assesses the potential negative impacts
or unintended consequences that may
arise from the implementation of an
option
Increased litigation
Parliamentary sovereignty
Insufficient resourcing
Lack of community support/agreement
Source: Allen Consulting Group
The assessment criteria were used to evaluate each option against a four point scale,
resulting in a quantitative rating. The scale differs for each assessment category, as
is shown in Table 1.3. Although such assessment inevitably involves some
judgement, these judgements are transparent.
Table 1.3
FOUR POINT SCALE FOR ASSESSING THE OPTIONS
Category
Rating on scale
1 4
Benefits to stakeholders The option does not
provide any benefits
The option provides a
number of benefits
Implementation timeliness
and costs
The option involves high
costs / a long time frame
for implementation
The option involves low
costs / a short timeframe
for implementation
Risks The option presents a high
degree of risk
The option presents a low
degree of risk
Source: Allen Consulting Group



1.4 Key assessments
The performance of each option against the evaluation framework is discussed in
this section and structured according to the three assessment categories: Benefits to
stakeholders; Implementation timeliness and costs; and Risks. A summary
assessment table, comparing the average performance of the options against the
assessment categories, is provided below (Table 1.4). The following sections
discuss these assessments further, and details of the quantitative ratings for each of
the assessment criteria are provided in Appendix B (see Tables B.1-B.3).
Table 1.4
SUMMARY OF ASSESSMENT OPTIONS AVERAGE RANKING AGAINST ASSESSMENT CATEGORIES
Assessment categories

Options
Benefits to
stakeholders
Implementation
timeliness and
costs
Risks
1 Human Rights Act*
model 1 4 2 3
model 2 4 2 3
model 3 3 3 3
model 4 2 4 4
2

Education in relation to human rights
national curriculum 2 2 2
public service education 2 2 3
public awareness raising measures 2 3 4
3 Parliamentary scrutiny committee for human rights 2 3 4
4 Increased role for AHRC 2 3 3
5 Consolidated anti-discrimination legislation 3 1 3
6 New NAP for human rights 2 2 4
7 Do nothing, maintain current arrangements 1

KEY:
Benefits: 4 = high, 3 = above average, 2 = moderate, 1 = low
Implementation factors: 4 = low, 3 = moderate, 2 = above average, 1 = high
Risks: 4 = low risk, 3 = moderate risk, 2 = above average risk, 1 = high risk

Category 1. Benefits to stakeholders
A Human Rights Act is an important and significant option arising from the
Consultation. A proposal for a Human Rights Act reflects support expressed in a
significant number of submissions made to the Consultation, both at community
roundtables and in writing.



Proponents of a Human Rights Act, such as the Law Council of Australia, the
AHRC, and the Gilbert + Tobin Centre of Public Law, among others, believe that
current protection of human rights in Australia is inadequate, especially in regard to
the disadvantaged and vulnerable. They also point to the fact that Australia is the
only Western democracy that has not implemented the major international human
rights treaties in a national Charter of rights or in the Constitution.
Submissions to the Consultation made an important distinction when calling for a
Human Rights Act. Namely that an Act on its own is not sufficient to fully address
all human rights related problems in Australia. Rather, an Act is seen as a catalyst
for change
6
and one that requires support in the form of accompanying education
and training, in order to best improve human rights protection and promotion.
Option 1 represents a strong response to the issues raised above and ultimately
benefits stakeholders through better protection of human rights, the enunciation of
rights and responsibilities, and by raising the communitys awareness of human
rights. Implementing a Human Rights Act would also deliver a strong signal that
Australia intends to address these concerns and its international reputation in
relation to human rights.
All four models being proposed protect and promote human rights by providing a
consolidated list of human rights to be protected under the Act. Models 1 and 2
provide clear and direct causes of action should rights be breached, and both offer
remedies for individuals. Models 1, 2 and 3 have a stronger focus on protection
through judicial interpretation and associated parliamentary response, public
parliamentary statements on the human rights compatibility of new legislation, and
the requirement for compliance from public authorities. Model 4 is the weakest
form of an Act, since it does not stipulate compliance, nor does it offer any formal
protection.
The models vary according to their respective responses to protect human rights in
the circumstances of an inconsistency arising between legislation and the Human
Rights Act. Model 4 is the least effective as it lacks a formal process to notify and
respond to inconsistent legislation and there is no obligation for public and private
entities to comply with the Act.
Models 1 and 2 include direct causes of legal action and formal remedies should
human rights be breached, and thus provide the greatest improvement in the
capacity for individuals to seek redress. Model 3 does not have a direct cause of
action, but may allow for human rights issues to be discussed in court in an indirect
manner. Model 4 will not improve redress, as there is no obligation upon entities
operating under the Act to comply with human rights.
However, many submissions highlighted that the greatest impact upon redress,
should human rights be breached, is not linked to the ability to pursue human rights
violations through courts and tribunals. Rather it is where an Act is used to
challenge the rigid application of policies in ways that ignore the realities of
human lives.
7,8

6
Williams G 2009 Personal Submission to National Human Rights Consultation, Foundation Director at the
Gilbert + Tobin Centre of Public Law, Faculty of Law, UNSW.
7
Quoted from Byrnes, Charlesworth and McKinnon 2009, Bills of Rights in Australian history, politics and law,
p165, by Santow 2009, National Human Rights Consultation Submission, Gilbert + Tobin Centre of Public
Law.



Evidence of social benefits derived from an Act was found in other jurisdictions
and primarily relates to better, human rights focused service delivery. In the UK, a
shift has occurred away from inflexible, one size fits all policies, to ones that
recognise the circumstances and differing needs of individuals.
9
There is similar
evidence from Victoria where its Charter has worked to improve the delivery of
services and the rights of disadvantaged people:
For example, in Victoria, a pregnant single mother of two children living in community
housing was given an eviction notice without reasons. Eviction would have meant
homelessness for herself and her children, in violation of their civil and political right to private
and family life, and of their ESC right to adequate housing She was saved from
homelessness only because Victoria has a Charter of Rights protecting the right to family life,
and this was used to negotiate with her landlord to reach a compromise.
10

This is a highly beneficial shift since it is disadvantaged and vulnerable people who
are most likely to require public and social services, and are in greatest need for
better human rights protections. To this end, Models 1, 2 and 3 offer better grass
roots protection of human rights, and potential to deliver social benefits due to
the requirement for compliance from public servants, government agencies,
statutory authorities and private entities with public functions.
Many participants at each public meeting held as part of the Consultation said we
dont know what our rights are, where to find them or what to do if our rights
are breached. They also called for measures to increase awareness of human rights
within the community as is reflected in the three education initiatives:
incorporating human rights education into a national curriculum; introducing
human rights education for the public sector; and a broader campaign of public
awareness raising measures.
Improving human rights education will serve primarily to improve awareness of
human rights. All three variations meet this objective, although public service
education does so to a slightly lesser extent being targeted towards a smaller
section of the community (public servants and their clients), when compared to the
other education initiatives.
Education will help meet Australias international human rights obligations.
Australia has a duty under the Universal Declaration on Human Rights, and other
conventions to which it is a signatory, to commit to providing human rights
education.
11

8
Examples where disadvantaged people have benefited the use of an Act to address human rights issues in
comparable jurisdictions (including the ACT, Victoria, the UK and New Zealand), are provided in an appendix
to Santow 2009, National Human Rights Consultation Submission, Gilbert + Tobin Centre of Public Law.
9
Santow 2009, National Human Rights Consultation Submission, Gilbert + Tobin Centre of Public Law p43.
10
Example quoted in Santow 2009, National Human Rights Consultation Submission, Gilbert + Tobin Centre of
Public Law p39, and referenced to Human Rights Law Resource Centre, Case Studies: How a Human Rights
Act can Promote Dignity and Address Disadvantage, section 1.4.
11
According to HRLRC 2009, Engage, Educate Empower: National Human Rights Consultation Submission on
Measures and Initiatives to Promote and Protect Human Rights, April 2009, these conventions include the
International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child,
the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the
Elimination of Discrimination in Education and the Convention on the Elimination of All Forms of
Discrimination against Women.



However, without the establishment of human rights in law, human rights education
does not offer protection in any formal sense. Nor will education help in terms of
redress, even though individuals might be better able to identify a breach of their
human rights.
Public authorities such as Centrelink and Medicare make decisions that impact the
daily lives of people in Australia. Increased awareness of human rights throughout
the decision making process is an important way to ensure the human rights of
community members are respected.
The training and education initiatives for public servants arising out of the
introduction of the Victorian Charter have had an important impact on the way the
government delivers services:
...by articulating a clear framework for protecting individual rights and creating an obligation
on public authorities to act compatibly with human rights.
12

In summary, this option has the capacity to reduce the frequency of human rights
breaches when the community has an increased awareness of human rights and
service providers better understand their related obligations and responsibilities. It
also brings Australia into line with international human rights education
obligations. It does not provide any formal protection of rights or means of
individual redress.
Pre-enactment scrutiny will better protect human rights by helping to catch laws
that would otherwise pass and be enforced, contrary to the rights of individuals. In
their submission, the AHRC commented on current scrutiny arrangements,
indicating there is much scope for better protecting human rights through a
reformed committee:
The Standing Committee on Regulations and Ordinances and the Scrutiny of Bills Committee
are governed by the Senate Standing Orders, which require the Committees to consider whether
regulations, ordinances or Bills may trespass unduly on personal rights and liberties.
13

However, these Committees are given no guidance on which rights and liberties they should
consider, or how they should determine when those rights can be justifiably limited.
14

Publication of the committees findings will contribute to improving awareness of
human rights. Additionally, the committees findings will develop a body of
knowledge on what constitutes human rights and responsibilities, and how these are
to be interpreted helping to more clearly enunciate human rights. Accordingly,
service providers operating in an environment where rights and responsibilities are
clarified, will be more able to improve their service delivery.

12
State Government of Victoria 2009, National Human Rights Consultation Victorian Government
Submission, 9 June 2009 p13.
13
Senate Table Office, Standing Orders and other Orders of the Senate 2006, Standing Orders 23 and 24,
p-20-21.
14
AHRC 2009, National Human Rights Consultation: Australian Human Rights Commission Submission,
Section 12.4, paragraph 148.



The scrutiny committee is not intended to improve means of redress for individuals
beyond the extent afforded by the scrutiny of new and existing legislation. Scrutiny
of new or existing legislation will not prevent human rights breaches from
occurring in the implementation and application of legislation. Thus, in order to
better protect human rights it will be necessary to also have adequate capacity for
individuals to seek redress.
The UKs experience provides further evidence of benefits linked to increased
scrutiny. Here, the reports of the British Joint Committee on Human Rights (JCHR)
have resulted in changes to legislation in only three per cent of cases. However, it is
argued that the government anticipates the reactions of the JCHR when it is forming
policy and drafting legislation, and therefore, legislation that opposes human rights
principles is seldom presented to parliament.
15

The current system of human rights protection largely relies upon individuals to
lodge complaints to the AHRC when they believe their human rights have been
breached. The key benefit to stakeholders arising from a stronger AHRC is better
human rights protection.
A stronger AHRC could initiate investigations on its own motion, where it becomes
aware of potential infringements of anti-discrimination legislation and other human
rights instruments, improving human rights protection. Further, the ability to seek
enforcement of conciliation agreements that are entered into as a result of AHRC
procedures, and to make binding codes of conduct or guidelines setting out the
process for the resolution of complaints, would further protect human rights.
Expansion of the AHRCs watchdog role expanded inquiry, reporting and
investigation, and enforcement activities, would also help clarify individuals rights.
This is primarily achieved through more clear and consistent monitoring of human
rights issues and violations in Australia.
Additional benefits to stakeholders include clarification of rights and greater
certainty of obligations.
This option only improves the capacity for individuals to seek redress if the basis
for complaints to be made to the AHRC is increased, or if the AHRCs conciliation
functions are expanded.
The enactment of consolidated anti-discrimination legislation may serve to simplify
anti-discrimination law by consolidating disparate anti-discrimination laws into a
single piece of legislation, with consistent drafting of definitions and key concepts.
Consolidated anti-discrimination legislation may serve to increase awareness of
human rights in the community if accompanied by an information and education
campaign. This is usual practice when introducing significant new Commonwealth
legislation. However, without accompanying and broad based public awareness
campaigns (such as in option 2), such awareness may be limited.

15
Campbell 2009, National Human Rights Consultation Submission Centre for Applied Philosophy and Public
Ethics, Australian National University.



To some extent, consolidated anti-discrimination legislation will improve certainty
of obligations, although this may depend on consistency with the provisions of
existing state and territory legislation.
It may provide a more easily accessible avenue by which individuals can seek
redress for breaches of their rights. Additionally, it may broaden the range of
grounds for which individuals may seek redress.
Australia is party to a number of international human rights instruments
16
that oblige
it to ensure full and effective legislative protection of the right to equality and
freedom from discrimination.
17
The United Nations Human Rights Committee
(UNHRC) noted its concern that the rights to equality and non-discrimination are
not comprehensively protected in Australia in federal law and recommends that:
The State party should adopt federal legislation, covering all grounds and areas of
discrimination to provide comprehensive protection to the rights to equality and
non-discrimination.
18

The United Nations Committee on Economic, Social and Cultural Rights made a
similar recommendation. Consolidated anti-discrimination legislation may thus
assists Australia in meeting its international obligation to ensure the full and
effective legislative protection of human rights required by the United Nations.
The AHRC
19
noted that such consolidated anti-discrimination legislation is
necessary even if a Human Rights Act is enacted, as anti-discrimination laws
provide a different and complementary role to an Act.
Employers are subject to multiple and potentially overlapping anti-discrimination
laws at the state, territory and Commonwealth level, and must manage a complex
web of obligations with respect to these laws.
20
Consequently, consolidated
anti-discrimination legislation at the Commonwealth level may produce benefits to
employers through improving the certainty of their anti-discrimination obligations.
The broad intention of a NAP is to enhance the way in which Human Rights issues
are approached and progressed by Australia both domestically and internationally.
21

This option concerns the merits of improving the current NAP, as it is widely
accepted that the current NAP is ineffective.

16
Including the International Convention on the Elimination of All Forms of Racial Discrimination, the
International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and
Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, and the
Convention on the Rights of Persons with Disabilities.
17
HRLRC 2009, Engage, Educate Empower: National Human Rights Consultation Submission on Measures and
Initiatives to Promote and Protect Human Rights, April 2009 p54.
18
UNHRC [United Nations Human Rights Committee] 2009, Concluding Observations of the Human Rights
Committee Australia, paragraph 12.
19
AHRC 2009, National Human Rights Consultation: Australian Human Rights Commission Submission, June
2009.
20
Australian Chamber of Commerce and Industry (ACCI) 2008, Submission to the Senate Standing Committee
on Legal and Constitutional Affairs Sex Discrimination Act Inquiry 2008.
21
Law Council of Australia 2009, A Charter: Protecting the rights of all Australians Law Council of Australias
Submission to the National Consultation on Human Rights, May 2009, p2.



Specific details on commitments within a new NAP are not known at this stage. It
may, for example, include a commitment to a Human Rights Act or to
strengthening parliamentary scrutiny of legislation on human rights grounds.
Assessing the potential benefits, costs and risks of developing a new NAP is
therefore primarily based on the value of the mechanism itself, as a facilitator of
other reforms, rather than its content.
There is certainly potential for a new NAP to deliver benefits to stakeholders
through an improved framework, whereby governments human rights strategy is
better coordinated, focused on priorities and cost-effective. The key ways in which
this approach may be beneficial are through better facilitation of reforms to protect
human rights, and increased human rights awareness.
While public roundtable sessions suggested that a minority favour this option
overall, many submissions indicated that current human rights protections are
adequate. Human rights are protected through a range of mechanisms. The
Australian Constitution provides limited protection to a small number of human
rights. Some existing legislation protects certain rights, for example the Victorian
Charter (2006). The common law provides limited human rights protection. Finally,
an individual who believes Australia has violated international human rights law
can, in certain circumstances, appeal to international adjudicative bodies, which can
generally issue non-binding recommendations.
This option meets some stakeholder requirements, however, the way human rights
and responsibilities are currently enunciated is not clear. As the Victorian
Government describes in its submission to the consultation:
Currently, the federal protection of human rights is a piecemeal collection of provisions in
various Acts and the common law. (This was also the case in Victoria prior to the enactment of
the Victorian Charter.)
22

Criterion 2. Implementation timeliness and costs
At one level, implementing a Human Rights Act is a timely response to better
protect and promote human rights. This is the case if implementation is limited to
drafting legislation (which can be completed in a period of weeks) and the
legislation has clear passage through parliament.
The stronger forms of a Human Rights Act, models 1, 2 and 3, all require
compliance among public sector entities and private sector entities with public
functions. Public service training in relation to human rights obligations could take
a period of months to complete. In the Victorian example, a period of 12 months
was needed prior to the introduction of the Charter to accommodate such training.
Following implementation of Models 1, 2 & 3, evidence of an associated
improvement in service delivery may take many months to achieve. Evidence of a
shift towards a human rights culture in the broader community may take several
years to develop.

22
Victorian Government 2009, National Human Rights Consultation, submission of the Victorian Government,
paragraph 9.7 p23.



Model 4 does not require compliance by the public sector, or offer remedies, or
require public statements when legislation is found to be in breach of the Act.
Model 4 does not have any inherent training requirements, nor are there more
contentious issues to debate (such as surrounding parliamentary sovereignty or the
inclusion of third generation rights). Without such potentially time consuming
variables, this model could be implemented without inherent delay.
Any commitment to a Human Rights Act is accompanied by the commitment to
establish and maintain the systems and facilities that uphold those rights. As
government is primarily responsible for the protection and promotion of rights,
public funding will be required to pay for the legal, service delivery and other
infrastructure required to meet the protections covered in an Act.
Further research is required to establish the economic and social, costs and benefits
associated with the implementation of a Human Rights Act, particularly for models
1, 2 and 3. The Victorian government publically quotes a cost of $6.5 million over
4 years to fund human rights initiatives relating to the Charter.
23
The detailed
allocation of this funding is presented in Box 1.1. Other jurisdictions were unable to
provide data to this study.
Box 1.1
COSTS ASSOCIATED WITH IMPLEMENTING THE VICTORIAN CHARTER
In 2006-07 the Victorian Government allocated total funding of $6.5m for human rights
initiatives over 4 years. The breakdown of funding was as follows:
Victoria Police $1,806,000 over 2 years nil ongoing;
Corrections Victoria $119,000 in the first year only nil ongoing;
Department of Human Services $624,000 over 2 years nil ongoing;
Human Rights Unit (Department of Justice) $1,386,000 over first 4 years $266,000
per annum ongoing;
Victorian Equal Opportunity and Human Rights Commission Charter education
$1,337,000 over 3 years nil ongoing; and
Victorian Equal Opportunity and Human Rights Commission reporting function
$996,000 over 3 years - $402,000 per annum ongoing.

Additional funding includes:
In 2009, the Department of Justice provided $485,000 (i.e. in addition to the existing
ongoing) to the Commission to perform its functions under the Charter;
The Department of Justice supplements the Human Rights Unit budget, which
amounts to $300-400,000 annually; and
Some departments also provided additional resources to prepare for the
commencement of the Charter.
Source: Victorian Department of Justice (14 September 2009)
24

Regardless of the model chosen, it will be vital to secure institutional support for an
Act from the many Commonwealth public agencies and authorities, whose
operation and delivery of services will be effected by the introduction of an Act.
This is in addition to the costs of enactment of a Human Rights Act.

23
Victorian Government 2009, National Human Rights Consultation, submission of the Victorian Government,
paragraph 6.1 p21.
24
Figures requested from and provided by the Victorian Department of Justice, 14 September 2009.



For example, all proposed models include scrutiny of new legislation for human
rights compliance. This will require additional funding on an initial and ongoing
basis to support the government efficiently and effectively develop and implement
policy. Such support could include expert advice from an authority, for example a
parliamentary scrutiny committee for human rights, or from other experts or
relevant stakeholders. Recommendation 32 of the AHRCs submission to the
Consultation requests that sufficient funding be supplied, should its role be
expanded under an Act.
25

The submission from the Law Council of Australia notes that the costs of public
servant training to understand their human rights obligations under an Act will be
outweighed by the value added through better quality services and associated
savings gained through avoidance of breaches to human rights.
26
There is clearly the
potential for costs savings in both economic and social terms as a result of a
strengthened human rights system.
The Law Council of Australia states that compliance costs are not expected to be
excessive:
Human rights compliance is no more expensive than other forms of compliance, such as
preparing Environmental Impact Statements For example, the bodies charged with
administering the Human Rights Charters in the ACT and Victoria are of modest size, with
staff of around 20 in the ACT and 50 in Victoria (both these bodies have other functions as
well, such as handling discrimination and health complaints).
27

The formation of a national curriculum requires a long timeframe, at least 1-2 years,
for development and implementation, particularly as it would require approval from
nine state and territory governments prior to its delivery. The United Nations World
Programme for Human Rights Education suggests four stages for a national human
rights education strategy and suggests the time commitment (from initial analysis
through to evaluation of the program) may involve several years.
28

The introduction of human rights education to the public sector is relatively
straightforward, compared to the introduction of a national curriculum. However, it
may take some time (at least 6-12 months) to develop training materials and tailor
these to different government agencies.
Public awareness raising measures could be developed in a much shorter timeframe,
in the order of 3-6 months. The AHRC has already developed educational materials
that may be used.
29

25
AHRC 2009, National Human Rights Consultation: Australian Human Rights Commission Submission, June
2009 p78.
26
Law Council of Australia 2009, A Charter: Protecting the rights of all Australians, Law Council of Australias
Submission to the National Consultation on Human Rights May 2009.
27
Ibid p40.
28
United Nations 2006, Plan of Action: World Programme for Human Rights Education, First Phase.
29
AHRC 2009, Education.



The UN World Programme for Human Rights Education indicates that the costs to
government of human rights education may include the training of teachers, the
development of teaching materials, in addition to the engagement of external
stakeholders such as teacher training institutions, teachers associations, non-
governmental organisations, parents and students associations, and community
leaders.
30

However, the United Nations notes that:
funding for human rights education could be found among the resources allocated to the
national education system in general, and in particular by optimising funds already committed
to quality education.
31

The Department of Education, Employment and Workplace Relations (DEEWR) is
currently developing a national curriculum for English, Mathematics, the Sciences
and History. There is scope for a future human rights curriculum to be incorporated
into this process, thereby reducing the overall transition costs.
The development of education and training initiatives for the public sector may
incur significant costs. For example, upon introduction of the Victorian Charter of
Human Rights and Responsibilities, the Victorian government implemented a
number of education initiatives including internal communication strategies,
training courses and workshops, online training modules, Human Rights
Ambassador programs, and human rights promotional material such as calendars
and displays
32
(see also Box 1.1).
The costs associated with public awareness are not likely to be as high as those
associated with developing a national curriculum or implementing public service
education programs. Transition costs will be those incurred in initially developing
the program or mechanism for the delivery of public awareness raising measures.
This may include, for example, grants provided to non-government organisations or
local government for the development of public awareness raising campaigns.
Educational materials already developed by the AHRC may be used to minimise
production costs of any new material required.
A parliamentary scrutiny committee for human rights is an option that could be
introduced quickly (some 3-6 months) and relatively easily. As stated in one
submission:
The greatest merit of the proposal is that it could, with sufficient resourcing of the Committees
secretariat and legal advice capacity, be implemented tomorrow.
33

In terms of costs associated with a scrutiny committee, these initially consist of
costs accruing to the parliament associated with recruitment of staff, new
legislation clarifying the terms of reference, education about the revised committee
to MPs and their advisers, education to government departments about the
committees new role, and, education to the committee members themselves and
their research staff about how the reformed committee would work. The
committees ongoing role requires government funding for expert advice.

30
United Nations 2006, Plan of Action: World Programme for Human Rights Education, First Phase.
31
Ibid p6.
32
VEOHRC [Victorian Equal Opportunity and Human Rights Commission] 2009a, Emerging change: the 2008
report on the operation of the Charter of Human Rights and Responsibilities.
33
Tate 2009 Submission to Human Rights Consultation Panel, personal submission p4.



A scrutiny committee is not expected to increase costs to business (except in
circumstances where clarification around human rights and responsibilities required
businesses to change their practices to ensure compliance). It may add costs to
government departments, through the need to provide additional supporting
information when preparing new legislation.
Given the AHRC is an established and recognised national institution, this option
involves strengthening the organisation and expanding its role. Thus
implementation expansion of its role, activities and influence is a
comparatively straightforward and reasonably quick (3-6 months) process.
Execution of the AHRCs increased role is dependent upon additional government
funding. Transition costs to government include recruitment of staff, drafting
new legislation clarifying the AHRCs expanded role, educating staff and key
stakeholders on the strengthened role, and changing the AHRCs structure and
strategic vision.
A strengthened AHRC would increase the cost of compliance to the extent that its
new powers (associated with education or the ability to conduct inquiries or initiate
investigations), would require, for example, compliance from businesses or
organisations that previously were not complying with relevant legislation. These
businesses may need to update or change, for example, recruitment procedures, and
equal opportunity action plans.
This option requires a lengthy consultation process, in light of the necessity to reach
agreement among the states, territories, and key stakeholders, on a process of
review and consolidation. The drafting of consolidated anti-discrimination
legislation is also likely to take a significant amount of time, similarly its passage
through parliament. It is estimated that the consolidation of anti-discrimination
legislation may take 1-2 years to complete.
The Commonwealth government may incur significant costs in developing and
enacting consolidated anti-discrimination legislation, in particular through the
management of the aforementioned consultation process, prior to drafting. Places of
employment and other organisations may face transition costs when becoming
compliant with consolidated legislation.
The drafting of consolidated anti-discrimination legislation may require significant
resources in terms of staff involvement. However, to the extent that additional
resources may be required beyond the normal drafting activities that occur in
government, these costs are likely to be relatively low. Additional staff resources
will be required for the consultation process.
Consolidated anti-discrimination laws may impose costs on businesses, for example
in training and educating staff, responding to and investigating complaints, and
engaging legal and specialist assistance where necessary. However in some
instances, where employers have maintained compliance with existing state,
territory and Commonwealth legislation prior to the introduction of consolidated
legislation, such costs may be minimised.



On a positive note the ACCI points to:
cost benefits to employers in achieving recognition as an employer with a
discrimination-free culture such as in staff well being, the quality of job applicants,
productivity, lower absenteeism, fewer conflict issues requiring resolution, and higher rates of
retention.
34

A key advantage of this option is that it could be implemented immediately, by
building on existing structures, while concomitantly including a strategy for
longer term goals.
Initial costs of a new NAP would primarily be development costs to government,
including conducting research to establish a baseline measure of current protections
(to be able to properly measure the impact of future reforms). There are also the
costs of stakeholder consultation on the new NAP, although the current
Consultation could be substituted here.
The most effective implementation strategy for a NAP requires periodic monitoring
of progress and evaluation, which incurs related costs for government on an
ongoing basis.
While maintaining current arrangements will not incur additional costs, there are
ongoing detrimental costs associated with maintaining current human rights
arrangements. In summary these include a lack of redress for individuals with
human rights complaints (of particular concern for disadvantaged sectors of the
community), a lack of clarity concerning human rights obligations in Australia, a
lack of community awareness of human rights, and unmet international obligations.
Criterion 3. Risks
Despite having the greatest potential for improving human rights protections, this
option may also pose the greatest implementation risks, depending upon the model
concerned. Risks primarily relate to models 1 and 2, and concern the infringement
upon parliamentary sovereignty (models 1 and 2), increased litigation (models 1
and 2), and resourcing requirements relating to third generation rights (model 1).
Under model 3 the interpretive principle only applies to delegated legislation. This
means that models 3 and 4 do not affect parliamentary sovereignty.
Many submissions point out that there is no risk of infringing parliamentary
sovereignty if a Human Rights Act requires judges to interpret legislation
consistently with its purpose, and if parliament is free to choose how to respond to
declarations of incompatibility made by courts. Parliament will not be prevented
from passing legislation that is inconsistent with the Human Rights Act, or from
amending the Human Rights Act itself.

34
ACCI 2008, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Sex
Discrimination Act Inquiry 2008, p3; also noted in Diversity Council of Australia 2008, DCAs submission to
the Federal Governments Senate Committee Review into the effectiveness of the Commonwealth Sex
Discrimination Act (1984).



In terms of an increase in litigation, evidence presented in many submissions states
that this risk is often overstated.
35
Evidence from the Law Council of Australia
suggests that governments need not fear a flood of litigation that requires
government funding, since this has not been the case under the Victorian Charter or
the ACT Act.
36
In any event, only models 1 and 2 provide for a direct cause of
action.
Resourcing also presents a potential risk to the full benefits of an Act being
delivered. The inclusion of economic, social and cultural rights may have high
resource implications. The extent of resources necessary to implement an Act is
determined, in part, by the nature of rights it contains.
The three initiatives for improving human rights education carry low risk in terms
of increasing litigation, affecting parliamentary sovereignty, and lacking
community support. Sufficient resourcing is a significant risk, particularly in regard
to the resourcing requirements associated with a national curriculum and public
service training.
Option 3 is a low risk and medium impact policy. It does not present a risk for
parliamentary sovereignty, as parliament would not be bound to follow the advice
of a scrutiny committee. A scrutiny committee does not result in increased litigation
because it does not provide any form of redress for individuals.
This option relies on additional resources. It is a significant risk that if funding were
reduced, the scope and power of the committee will subsequently diminish.
The key risk associated with this option relates to future resourcing. An increased
role for the AHRC is unlikely to open significantly greater opportunities for
litigation for individuals.
The power to consider (on its own motion) and report on the human rights
implications of any existing or proposed Commonwealth legislation has the
potential to reveal human rights violations in the legislation approved by
parliament. To the extent that this could call into question the parliamentary
process, this option may have implications for parliamentary sovereignty. However,
this is not regarded as a substantial risk to parliamentary sovereignty.
The introduction of consolidated anti-discrimination legislation may pose a risk in
terms of future resourcing and the potential for an increase in litigation. However,
new legislation does not pose a risk to parliamentary sovereignty and is likely to be
strongly supported by the community.

35
See for example Santow 2009, National Human Rights Consultation Submission Gilbert + Tobin Centre of
Public Law.
36
Law Council of Australia 2009, A Charter: Protecting the rights of all Australians, Law Council of
Australias Submission to the National Consultation on Human Rights May 2009.



This is a low risk option. A new NAP is unlikely to pose any risk through increased
litigation or threaten parliamentary sovereignty (though specific elements in a NAP
may have these risks, having a NAP in and of itself does not increase these risks).
There are some risks to the effectiveness of this option through future resourcing
needs the new NAP will only lead to benefits where it is properly monitored and
reviewed on a regular basis, and where stakeholders are encouraged to participate in
this process. This requires government to ensure that there are sufficient resources
to maintain the new NAP.
The only risk criterion that is applicable to this option concerns community support
for maintaining the status quo. In light of the resounding response to the
Consultation, doing nothing represents a significant risk.



Appendix A
Details of the variations to a Human Rights Act
A.1 Variables used to distinguish models of a Human Rights Act
A Human Rights Act can take a number of different forms and also take into
account different human rights. For this reason, four models of a Human Rights Act
were included under option 1.
These models differ on the basis of eight key variables, as set out in Box A.1.
Box A.1
KEY VARIABLES FOR MODELS OF A HUMAN RIGHTS ACT
There are eight key variables which have been considered in developing the four models
of a Human Rights Act (as sub-options under option 1):
1. Which human rights? what type of human rights are included under the Act? These
can include civil and political rights; economic, social and cultural rights; and new and
emerging rights such as the right to a clean environment.
2. A cause of action a direct cause of action provides for individuals to directly take a
complaint to court on the basis of a Human Rights Act. An alternative model is for
individuals to be able to raise human rights arguments based on a Human Rights Act
only where there is a case that arises, for example, under other legislation.
3. Remedies available remedies are orders made by the court to rectify a breach of an
individuals human rights. Remedies can include payments or compensation that
individuals may receive as a result of a breach of their human rights.
4. Interpretive principle the interpretive principle determines the extent to which courts
would interpret legislation consistently with a Human Rights Act. It may be that all
legislation is interpreted consistently with human rights as far as is possible (a strong
interpretive principle), or that the intention of the legislation is considered in this
assessment (a weaker model), or that only delegated legislation is interpreted
consistently with a Human Rights Act.
5. Judiciarys role in striking down incompatible legislation and parliaments response
some models of a Human Rights Act may allow the judiciary to strike down legislation
(either primary or delegated) that is incompatible with the rights set out in a Human
Rights Act others may allow the judiciary to declare or report the incompatibility to
parliament but not to strike down legislation.
6. Statement of compatibility for introduction of legislation a component of a Human
Rights Act, can be a requirement that all legislation introduced into the parliament include
a statement by the member introducing, of compatibility with the Human Rights Act (or
the reason for any inconsistency)
7. Parliamentary scrutiny this variable determines the extent to which a parliamentary
committee scrutinises legislation against human rights standards prior to its introduction
into Parliament.
8. Who must comply? this variable determines which parties are required to comply
with a Human Rights Act (for instance, only public sector agencies, private sector
agencies performing a public function, wholly private entities or individuals).

A.2 Details of four models of a Human Rights Act
Differences among the four models of a Human Rights Act across the eight
variables are shown in Table A.1.



Table A.1
DIFFERENCES AMONG FOUR MODELS OF A HUMAN RIGHTS ACT

Model 1 Model 2 Model 3 Model 4
1. Which human rights?
Contains a list of the civil and
political rights; economic, social
and cultural rights (such as health,
education, social security) as well
as limited third generation rights
(such as the right to water and a
clean environment) protected
under the Act
Contains a list of the civil and
political rights and the limited
economic and social rights
(such as the right to health and
the right to education)
protected under the Act
Contains a list of the civil
and political rights
protected under the Act
Contains a list of civil and
political rights
2. A cause of action
A direct cause of action A direct cause of action No direct cause of action No direct cause of action
3. Remedies available
Remedies available for breaches
of human rights including
monetary damages
Remedies available for
breaches of human rights not
including monetary damages
No remedies No remedies
4. Interpretive principle
An interpretive principle,
providing that all legislation
should be interpreted
consistently with the human
rights set out in the Act
rights set out in the Act, as far as
such an interpretation is
possible, and subject to the
purpose of the legislation in
question
providing that all
delegated legislation
consistently with the
human rights set out in
the Act
rights set out in the Act
5. Judiciarys role in striking down incompatible legislation and parliaments response
A clause providing that, where
legislation is irreconcilably
inconsistent with a Right or
Rights in the Act, the legislation
is inoperative to the extent of the
inconsistency
Rights in the Act, the legislation
continues to operate regardless
but parliament is informed of the
inconsistency & is required to
respond publicly (although
parliament decides, at its
absolute discretion, whether or
not to amend the provision)
A clause providing that,
where delegated
legislation is
irreconcilably
inconsistent with a Right
or Rights in the Act, the
legislation is inoperative
to the extent of the
inconsistency
Rights in the Act, the court would
not be permitted to invalidate the
law in question (there would be
no formal mechanism to notify
parliament of the inconsistency,
and no obligation on parliament
or the government to publicly
respond)
6. Statement of compatibility for introduction of legislation
A clause requiring that a Member
of Parliament introducing
legislation into parliament must
make a statement of compatibility
(or justification for any
incompatibility)
A clause requiring that a
Member of Parliament
introducing legislation into
parliament must make a
statement of compatibility
incompatibility)
statement of compatibility
incompatibility)
statement of compatibility (or
justification for any
incompatibility)
7. Parliamentary scrutiny
Parliamentary scrutiny of such
statements (for example, by
specialist parliamentary
committee)
Parliamentary scrutiny of
such statements (for
example, by specialist
parliamentary committee)
8. Who must comply?
A clause requiring all public
authorities, and private entities
carrying out public functions, to
comply with the rights set out in
the Act as well as corporations
authorities, and private
entities carrying out public
functions, to comply with
the rights set out in the Act
authorities, and private
entities carrying out public
functions, to comply with
the rights set out in the Act
No obligation on public
authorities, private entities or
any other entity to comply
with the rights set out in the
Act



Appendix B
Assessment of options using the analytical
framework
B.1 Assessment of options against benefits criteria
Table B.1
ASSESSMENT OF OPTIONS AGAINST BENEFITS ASSESSMENT CRITERIA
Benefits assessment criteria
Option Clarification of
rights for
individuals
Better human
rights
protections
Certainty of
obligations
Improved
capacity to
seek redress
1 Human Rights Act*
model 1
4 4 3 4
model 2
4 4 3 4
model 3
4 3 3 2
model 4
4 1 2 1
2

Education in relation to human rights
national curriculum 4 1 1 1
public service education 3 1 1 1
public awareness raising measures 4 1 1 1
3 Parliamentary scrutiny committee for human rights
2 2 2 1
4 Increased role for AHRC
2 3 2 1
5 Consolidated anti-discrimination legislation 3 3 3 3
6 New NAP for human rights
2 2 1 1
7 Do nothing, maintain current arrangements
2
na
1
na
Key: 4 = high, 3 = above average, 2 = moderate, 1 = low



B.2 Assessment of options against implementation timeliness and
costs criteria
Table B.2
ASSESSMENT OF OPTIONS AGAINST IMPLEMENTATION ASSESSMENT CRITERIA
Implementation assessment criteria
Option
Transition costs

On-going costs Timeliness of
potential changes
1 Human Rights Act*
model 1
3 2 3
model 2
3 2 3
model 3
3 3 3
model 4
4 4 4
2 Education in relation to human rights
national curriculum 2 3 2
public service education 2 2 2
public awareness raising measures 3 3 3
3 3 4
2 3 4
5 Consolidated anti-discrimination legislation 1 2 1
6 New NAP for human rights 2 1 4
7 Do nothing, maintain current arrangements na na na
Key: 4 = low, 3 = moderate, 2 = above average, 1 = high
* Option 1 includes drafting of legislation, clear passage through the senate and does not take into account education (i.e. option 2)



B.3 Assessment of options against risks assessment criteria
Table B.3
ASSESSMENT OF OPTIONS AGAINST RISKS ASSESSMENT CRITERIA
Risk assessment criteria
Option Increased
litigation
Parliamentary
sovereignty
Insufficient
resourcing
Lack of
community
support or
agreement
1 Human Rights Act*

model 1
3 2 3 3
model 2
3 3 3 3
model 3
4 4 3 3
model 4
4 4 4 2
2 Education in relation to human rights
national curriculum 4 4 2 4
public service education 4 4 2 4
public awareness raising measures 4 4 3 4
4 4 3 4
3 3 3 2
5 Consolidated anti-discrimination legislation 3 4 2 3
6 New NAP for human rights 4 4 3 4
7 Do nothing, maintain current arrangements na na na 1
Key: 4 = low risk, 3 = moderate risk, 2 = above average risk, 1 = high risk
* Option 1 includes drafting of legislation, clear passage through the senate and does not include education (i.e. option 2)

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