Summary

On 10 December 2008 the Federal Government asked the Committee

to conduct a nationwide Consultation with the aim of ndin! out
which human ri!hts and res"onsibilities should be "rotected and
"romoted in #ustralia$ whether human ri!hts are su%ciently "rotected
and "romoted$ and how #ustralia could better "rotect and "romote
human ri!hts&
'he Committee travelled the len!th and breadth of the country to
seek the community(s views& 'housands of "eo"le "artici"ated in the
Consultation$ by attendin! community roundtables$ by "resentin!
submissions$ by a""earin! at "ublic hearin!s$ and in other ways&
'his re"ort sets out the "rimary "oints the community raised in
relation to the "rotection and "romotion of human ri!hts and
identies a number of o"tions for the Federal Government to consider&
'he advanta!es and disadvanta!es of these o"tions are e)amined$
and the Committee makes ndin!s and recommendations in relation
to what it learnt durin! the Consultation&
#fter 10 months of listenin! to the "eo"le of #ustralia$ the Committee
was left in no doubt that the "rotection and "romotion of human
ri!hts is a matter of national im"ortance& *uman ri!hts touch the lives
of everyday #ustralians&
Part One Introduction
1 The Consultation: an overview
Cha"ter 1 describes how the Committee went about consultin!
broadly with the "eo"le of #ustralia&
'he Committee called for submissions and received +, 01- written
res"onses.the lar!est number ever for a national consultation in
#ustralia& 'hese submissions were analysed to e)tract information
and for statistical "ur"oses& /n addition$ about 0000 "eo"le re!istered
to attend the 00 community roundtables$ which were held in ,2
locations around #ustralia&
Summary

1 )iii
'he Consultation website 2www&humanri!htsconsultation&!ov&au3
and a Facebook "a!e allowed the Committee to further en!a!e with
the "ublic& #nd an online forum facilitated by le!al e)"erts "rovided
another o""ortunity for "eo"le to res"ond to the Consultation
4uestions&
Colmar 5runton Social 6esearch was commissioned to carry out two
research "ro7ects& 'he rst involved focus !rou" research followed by
a national tele"hone survey to ascertain attitudes towards human
ri!hts and their "rotection amon! a random sam"le of #ustralians&
'he second task was to conduct focus !rou" research in order to cast
li!ht on the e)"eriences and o"inions of mar!inalised and vulnerable
!rou"s who mi!ht otherwise not "artici"ate in the Consultation& 'he
Committee also commissioned 'he #llen Consultin! Grou" to "rovide
an economic analysis of o"tions for the "rotection and "romotion of
human ri!hts in #ustralia&
/n early 8uly 2009 the Committee held three days of "ublic hearin!s in
Canberra: over 00 s"eakers took "art in "anel discussions and
debates&
Finally$ throu!hout the Consultation the Committee met with a broad
ran!e of individuals and or!anisations$ amon! them "arliamentarians$
senior "ublic servants$ "olice commissioners$ 7ud!es and former
7ud!es$ anti;discrimination commissioners and re"resentatives of non;
!overnment or!anisations&
2 The communitys views
Cha"ter 2 !ives a voice to some of the many individuals who
"artici"ated in the Consultation& /t records stories and e)"eriences
that were shared durin! community roundtables and in submissions
and "rovides evidence that for many "eo"le human ri!hts are not an
abstract conce"t but are instead relevant to actual$ everyday life&
'he Committee heard from individuals and !rou"s whose ri!hts are
most under threat$ amon! them /ndi!enous #ustralians$ the
homeless$ "eo"le with disabilities$ "eo"le with mental illness$ "eo"le
livin! in rural and remote "arts of #ustralia$ the a!ein!$ and children&
'he 4uestion of access to 7ustice was often raised$ and it was
a""arent that the ri!ht to a clean environment was a central concern&
'hree recent develo"ments in law and !overnment "olicy were
re"eatedly referred to as !ivin! rise to human ri!hts concerns< the
=orthern 'erritory >mer!ency 6es"onse ?also known as the
)iv 1
*uman 6i!hts Consultation Committee 6e"ort
/ntervention@$ the treatment of asylum seekers$ and national security
le!islation& Aany who "artici"ated in the Consultation felt that in
these instances a balance between individual liberty and the "ublic
interest mi!ht not have been struck&
Finally$ four controversial sub7ects often raised durin! the
Consultation.same;se) marria!e$ euthanasia$ abortion and reli!ious
freedom.are discussed&
3 Rights and responsiilities
Cha"ter + deals with the "reliminary 4uestion of what ri!hts and
res"onsibilities are& 'he two conce"ts were crucial to the Consultation
"rocess$ and it is im"ortant to reco!nise that there are diBerent
inter"retations of human ri!hts and res"onsibilities&
First$ the cha"ter looks at the conce"t of human ri!hts& /t traces
historical discussions about the nature and ori!in of human ri!hts and
touches on more recent "hiloso"hical debates about ri!hts& /t then
e)amines the ori!ins of international human ri!hts law in the
Cniversal Declaration of *uman 6i!hts in 19-8& 'his is followed by
discussion of a community "ers"ective on human ri!hts that emer!ed
durin! the Consultation& Finally$ the relationshi" between diBerent
human ri!hts and the e)tent to which they can le!itimately be limited
are e)amined&
'he cha"ter then moves on to the conce"t of res"onsibilities$ lookin!
at the "hiloso"hical notion of res"onsibilities that corres"ond to ri!hts
and the way international law has dealt with res"onsibilities& #
community "ers"ective on res"onsibilities$ drawn from the
Consultation$ is acknowled!ed& Finally$ there is discussion of how
res"onsibilities have been dealt with in other 7urisdictions&
Part Two Rights and responsiilities in
!ustralia
" #hich rights and responsiilities$
Cha"ter - draws on the views of the #ustralian community to "rovide
an overview of which human ri!hts and res"onsibilities should be
"rotected and "romoted& # common res"onse to this 4uestion was
that #ustralia should "rotect and "romote all the human ri!hts
reDected in its obli!ations under international human ri!hts law&
Summary

1 )v
Aost "eo"le who res"onded to the 4uestion su""orted the "rotection
and "romotion of civil and "olitical ri!hts in #ustralia& Some ar!ued
that only civil and "olitical ri!hts should be "rotected: others
contended that civil and "olitical ri!hts do re4uire "rotection but not
to the e)clusion of other ri!hts&
Aany Consultation "artici"ants ar!ued that economic$ social and
cultural ri!hts ?such as the ri!ht to the hi!hest attainable standard of
health@ should be "rotected and "romoted on the basis that these
ri!hts are most im"ortant to #ustralians and are 7usticiable and that
all ri!hts are interrelated and interde"endent& 'he research the
Committee commissioned demonstrated that economic$ social and
cultural ri!hts are at the to" of the list of ri!hts that are considered
most im"ortant to the #ustralian community& On the other hand$ a
considerable number of "eo"le contended that economic$ social and
cultural ri!hts should not be !iven le!al "rotection in #ustralia
because "arliament alone should make decisions about social and
scal "olicy and these ri!hts are not amenable to 7udicial
determination&
'here was amon! Consultation "artici"ants disa!reement on whether
the ri!hts of "articular !rou"s in the #ustralian community deserve
s"ecial attention& #mon! these !rou"s are /ndi!enous #ustralians:
children and youn! "eo"le: women: "eo"le with disabilities: "eo"le
with mental illness: asylum seekers and refu!ees: ethnic$ reli!ious
and lin!uistic minorities: the elderly: !ay$ lesbian$ bise)ual$
trans!ender and interse) "eo"le: and workers&
Some "artici"ants "ro"osed that new and emer!in! ri!hts should be
"rotected and "romoted in #ustralia& #mon! these ri!hts$ those that
received most attention were the ri!ht to an environment that is not
harmful to health or wellbein! and the related ri!ht to have the
environment "rotected&
Finally$ Cha"ter - considers the 4uestion of which res"onsibilities
should be "rotected and "romoted in #ustralia& Aany who "artici"ated
in the Consultation reco!nised that all human ri!hts entail
res"onsibilities& 'he idea that individuals should be encoura!ed to act
res"onsibly towards each other was considered im"ortant$ but many
o""osed the reco!nition$ "rotection or "romotion of res"onsibilities on
the basis that they are not le!ally enforceable$ are not reDected in
international law$ and raise the dan!erous "ros"ect of ri!hts bein!
contin!ent on res"onsibilities& # number of "eo"le "ro"osed that
)vi 1
*uman 6i!hts Consultation Committee 6e"ort
res"onsibilities should be reco!nised but not "rotected or "romoted in
the same way as ri!hts&
% !re human rights ade&uately protected and
promoted$
Cha"ter , outlines the main e)istin! mechanisms for "rotectin! and
"romotin! human ri!hts in #ustralia and evaluates their eBectiveness&
/nternational human ri!hts law re4uires #ustralia to res"ect$ "rotect
and full human ri!hts& #ustralia must re"ort re!ularly on com"liance
with its treaty obli!ations$ and o"tional "rotocols to some treaties
allow individuals to lod!e com"laints a!ainst #ustralia for human
ri!hts violations& Aany of #ustralia(s human ri!hts treaty obli!ations
have$ however$ not been incor"orated in domestic law& /n addition$
althou!h federal !overnments have at times res"onded "ositively to
the ndin!s of treaty bodies$ they have sometimes failed or refused to
acce"t their recommendations&
#ustralia has stron! democratic institutions that function to "rotect
and "romote human ri!hts.amon! them the Constitution$
re"resentative democracy$ the federal system$ the se"aration of
"owers$ res"onsible !overnment$ bicameral "arliaments$
"arliamentary committees$ and a free "ress& 5ut these institutions do
not always ensure that human ri!hts are considered and debated
before the "assa!e of le!islation and do not always ensure that the
ri!hts of minority !rou"s are "rotected&
'he Constitution contains e)"ress and im"lied ri!hts& 'hese ri!hts are$
however$ limited in sco"e and have !enerally been inter"reted
narrowly by the courts& /n addition$ the remedies available for
breaches of the ri!hts are limited&
Ee!islative "rotections of human ri!hts e)ist$ "rimarily in the form of
anti;discrimination le!islation at both the federal and state and
territory levels& 'hese "rotections are di%cult to understand and
a""ly$ thou!h$ and are vulnerable to amendment or sus"ension& 'here
are also weaknesses in and inconsistencies between e)istin! anti;
discrimination laws&
#dministrative law "rovides a framework for challen!in! the decisions
of !overnment and its a!encies& 'here is$ however$ no !eneral ri!ht to
have a decision reviewed$ and there is no !eneral le!al onus on
decision makers to consider the human ri!hts im"lications of a
decision&
Summary

1 )vii
Over time$ the common law has come to reco!nise s"ecic human
ri!hts& /t has also develo"ed rules relatin! to the inter"retation of
le!islation that function to "rotect human ri!hts& 5ut the common law
can be overridden at any time by le!islation&
Farious inde"endent oversi!ht mechanisms$ such as the #ustralian
*uman 6i!hts Commission and the Commonwealth Ombudsman$
contribute to maintainin! the trans"arency and accountability of
!overnment and "rotectin! and "romotin! human ri!hts& 'heir
"owers are$ however$ limited&
Finally$ access to 7ustice is a "rimary concern when it comes to the
ade4uacy of the e)istin! "rotections& /ndividuals who are unable to
!ain access to the "rotections described will ultimately be unable to
enforce their ri!hts&
Part Three Re'orm options
( Creating a human rights culture
Cha"ter 0 considers o"tions the community identied for "romotin!
an im"roved human ri!hts culture in #ustralia&
'he Committee heard that human ri!hts can be "rotected and
"romoted eBectively only if an understandin! of and commitment to
human ri!hts have become a "art of everyday life for all in the
community$ as well as for !overnment$ the "rivate sector and non;
!overnment or!anisations&
'he Committee found a lack of understandin! amon! #ustralians of
what human ri!hts are and that su""ort for an im"roved human ri!hts
culture was stron!& Aany submissions referred to the need for !reater
human ri!hts education or the develo"ment of a human ri!hts ethos
in the community& 'he overwhelmin! ma7ority of community
roundtables reDected the community(s desire to !ain a better
understandin! of human ri!hts: this was su""orted by focus !rou"
research$ comments on the online forum$ and e)"erts s"eakin! at the
"ublic hearin!s&
Calls for an im"roved human ri!hts culture came from both those in
favour of an #ustralian *uman 6i!hts #ct and those a!ainst& 'he
o"tions the Committee "uts forward for im"rovin! #ustralia(s human
ri!hts culture can be im"lemented re!ardless of whether a *uman
6i!hts #ct is introduced&
)viii 1
*uman 6i!hts Consultation Committee 6e"ort
'he rst of these o"tions concerns education& Calls for increasin!
human ri!hts education in schools and the community were made in
submissions and at community roundtables& /f this was done as "art of
a national human ri!hts education "lan$ it would ensure that human
ri!hts education is delivered strate!ically and meanin!fully and would
hel" with coordinatin! a central$ hi!h;4uality re"ository of human
ri!hts education resources& 'here was in the community a stron!
sentiment that human ri!hts education should also reDect the
im"ortance of res"onsibilities&
# community desire for human ri!hts to be considered by the "ublic
sector in "olicy$ "ractice and decision makin! was evident& Creatin! a
human ri!hts culture in the "ublic sector would e)tend to im"rovin!
en!a!ement between !overnment and /ndi!enous #ustralians$ as well
as havin! re!ard to human ri!hts in the conte)t of national security&
/ncor"oration of a human ri!hts a""roach in the !overnment(s social
inclusion a!enda was also seen to be im"ortant$ and many non;
!overnment or!anisations "ointed to the need for im"roved
collaboration between !overnment and or!anisations workin! in the
human ri!hts area&
Finally$ it was submitted that encoura!in! cor"orate res"onsibility and
a "rivate sector environment in which human ri!hts come to be seen
as core business is an im"ortant "art of creatin! a broader human
ri!hts culture in #ustralia& Aany or!anisations "ut forward s"ecic
"ro"osals relatin! to "ublicG"rivate "artnershi"s&
) *uman rights in policy and legislation
Cha"ter H discusses the o"tions identied durin! the Consultation for
im"rovin! the "rotection and "romotion of human ri!hts in "olicy and
le!islation& #ll these o"tions could be im"lemented re!ardless of
whether a *uman 6i!hts #ct is introduced&
'he Federal Government could review all federal le!islation$ "olicies
and "ractices with a view to identifyin! any !a"s in and
inconsistencies between #ustralia(s international human ri!hts
obli!ations and their domestic im"lementation& Iriority areas could be
le!islation$ "olicies and "ractices associated with anti;discrimination$
national security and immi!ration and the "olicies and "ractices of
#ustralian a!encies that could result in #ustralians bein! denied their
human ri!hts when overseas&
'he !overnment could also im"lement measures to ensure that
human ri!hts are taken into account in the develo"ment of "olicy and
Summary

1 )i)
le!islation& 'here was a hi!h level of community su""ort for such
measures< 90 "er cent of res"ondents to the Colmar 5runton
tele"hone survey su""orted the "ro"osition JIarliament to "ay
attention to human ri!hts when makin! laws( and 8, "er cent
su""orted JGovernments to "ay more attention to human ri!hts when
they are develo"in! new laws and "olicies(&
Further$ the !overnment could re4uire all Cabinet submissions to
contain Jhuman ri!hts im"act statements($ which would outline the
eBect of the "ro"osal on human ri!hts and 7ustify any limitations on
ri!hts& >)"erience in Fictoria and the #ustralian Ca"ital 'erritory
su!!ests that such statements can hel" with early identication of
human ri!hts shortcomin!s and result in amendments to "olicies
before they reach Cabinet&
Statements of com"atibility could be re4uired for all 5ills introduced
into the Federal Iarliament.settin! out whether the 5ill is com"atible
with human ri!hts and 7ustifyin! any limitations on ri!hts& 'hey could
also be re4uired for all "ro"osed amendments to le!islation and for
subordinate le!islation& 'he submissions of the Fictorian and #C'
Governments described the "ositive im"act of such statements on the
human ri!hts dialo!ue in "arliament and in the "ublic service& Other
submissions ar!ued that statements of com"atibility would foster
better informed debate inside and outside "arliament$ reduce the
likelihood of ri!hts bein! infrin!ed inadvertently$ and increase the
trans"arency and accountability of !overnment&
Finally$ a "arliamentary committee could be char!ed with reviewin!
5ills and re!ulations to determine their com"liance with human ri!hts&
'he "owers of e)istin! "arliamentary committees could be e)"anded
?as in Fictoria and the #C'@ or a new committee dedicated to human
ri!hts could be established ?as in the Cnited Kin!dom@& 'he latter
o"tion was su""orted by a number of submissions$ includin! that of
the Federal O""osition&
/n the absence of a *uman 6i!hts #ct$ it would be necessary to assess
new laws and "olicies by reference to all of #ustralia(s international
human ri!hts obli!ations or a consolidated list of those obli!ations&
+ *uman rights in practice
Cha"ter 8 discusses the o"tions identied durin! the Consultation for
im"rovin! the "rotection and "romotion of human ri!hts in "ractice&
#ll these o"tions could be im"lemented re!ardless of whether a
*uman 6i!hts #ct is introduced&
)) 1
*uman 6i!hts Consultation Committee 6e"ort
'here was su""ort for the Federal Government ado"tin! a more
coordinated a""roach to the "rotection and "romotion of human
ri!hts$ includin! by ado"tin! a strate!ic framework within which
human ri!hts le!islation$ "olicy and "ractice could be develo"ed and
im"lemented& #ustralia(s =ational #ction Ilan for human ri!hts$ which
was last u"dated in 200-$ could be revised& # whole;of;!overnment
framework would ensure that human ri!hts are better inte!rated into
"ublic sector "olicy and le!islative develo"ment$ decision makin!$
service delivery$ and "ractice more !enerally&
# number of submissions e)"ressed su""ort for ado"tin! measures
desi!ned to "romote a human ri!hts culture in the "ublic sector&
#mon! the su!!estions were incor"oratin! res"ect for human ri!hts
in "ublic sector values and codes of conduct: amendin! the
Administrative Decisions (Judicial Review) Act 1977 ?Cth@ to make
human ri!hts a relevant consideration in !overnment decision
makin!: re4uirin! "ublic sector a!encies to develo" human ri!hts
action "lans$ conduct or com"ly with annual human ri!hts audits$ and
"re"are annual re"orts on human ri!hts com"liance: and amendin!
the Acts Interpretation Act 1901 ?Cth@ to re4uire that$ as far as it is
"ossible to do so consistently with an #ct(s "ur"ose$ federal
le!islation is to be inter"reted consistently with human ri!hts&
/n the absence of a *uman 6i!hts #ct$ it would be necessary to
im"lement such measures by reference to #ustralia(s international
human ri!hts obli!ations or a consolidated list of those obli!ations&
# number of submissions ar!ued that these measures could be made
more eBective if inde"endent oversi!ht mechanisms were reinforced&
/t was su!!ested that the 7urisdiction of the Commonwealth
Ombudsman could be e)"anded to review administrative action for
human ri!hts com"liance$ althou!h the Commonwealth Ombudsman
himself noted that he already had su%cient "ower to investi!ate
human ri!hts matters&
'here was also su""ort for au!mentin! the "owers of the #ustralian
*uman 6i!hts Commission& /t was "ro"osed that the commission(s
7urisdiction should include all the human ri!hts in relation to which
#ustralia has assumed international obli!ations: that the same
enforcement remedies should be available for human ri!hts and anti;
discrimination com"laints: and that the Federal Government should be
re4uired to table in "arliament the commission(s re"orts$ and a
res"onse to those re"orts$ within si) months of receivin! them&
Summary

1 ))i
Finally$ the community re"eatedly mentioned the need to im"rove
access to 7ustice& #mon! the su!!estions for im"rovin! access to
le!al re"resentation were increasin! fundin! to le!al aid and
community le!al centres and encoura!in! "ro bono work in the
"rivate sector& Submissions also hi!hli!hted other means of reducin!
the cost of access to 7ustice.for e)am"le$ encoura!in! the use of
alternative dis"ute resolution services$ usin! "rotective costs orders
or makin! human ri!hts a Jno costs( 7urisdiction$ and establishin! a
fund for disbursement costs&
, *uman rights and Indigenous !ustralians
Cha"ter 9 e)amines o"tions for better "rotectin! and "romotin! the
ri!hts of /ndi!enous #ustralians&
/n the conte)t of universal human ri!hts$ there is continuin! debate
about how to accommodate the "articular ri!hts of minority !rou"s
and indi!enous "eo"les& Some Consultation "artici"ants took the view
that /ndi!enous #ustralians should be treated in the same way and
en7oy the same ri!hts as non;/ndi!enous #ustralians& # number of
submissions "ointed out that many /ndi!enous #ustralians do not
en7oy basic civil$ "olitical$ economic$ social and cultural ri!hts$
includin! the ri!ht to ade4uate housin! and the ri!ht to a fair trial&
Others considered that "articular measures are needed to res"ond to
/ndi!enous disadvanta!e< /ndi!enous;s"ecic ri!hts includin! self;
determination$ ri!hts reco!nisin! land ownershi" and cultural ri!hts&
Aany submissions referred to the Declaration on the 6i!hts of
/ndi!enous Ieo"les&
'he Committee outlines a ran!e of o"tions for achievin! social
e4uality for /ndi!enous #ustralians and the de!ree of community
su""ort for each o"tion&
/ndi!enous;s"ecic ri!hts could be reco!nised in various le!al
instruments$ amon! them a *uman 6i!hts #ct$ the Constitution or a
treaty& /n addition$ limitations could be "laced on "arliament(s ability
to enact le!islation that would be to the detriment of /ndi!enous
"eo"le& Farious "ro"osals were made in relation to the status of the
Racial Discrimination Act 1975 ?Cth@$ includin! that it should be
constitutionally entrenched or stren!thened& Submissions also
e)"ressed concern about the Jrace "ower(< some su!!ested it should
be amended to ensure that it cannot be used to "ass laws that are
Jdetrimental( to #ustralian "eo"le&
))ii 1
*uman 6i!hts Consultation Committee 6e"ort
'he ri!ht to self;determination could be reco!nised$ ensurin! that
/ndi!enous #ustralians are free to determine their internal and local
aBairs& Statutory acknowled!ment could be made of /ndi!enous
#ustralians as the ori!inal inhabitants of #ustralia$ alon! with
acknowled!ment of their ri!ht to "ractise and observe their own
customs and traditions&
'here are also a number of additional reform o"tions for
consideration< inclusion of /ndi!enous #ustralians in the develo"ment
and delivery of a national cam"ai!n in relation to human ri!hts
education and awareness: im"rovin! !overnments( methods of
collectin! data from /ndi!enous #ustralians: and im"rovin! access to
accredited inter"reters for /ndi!enous #ustralians&
Part -our ! *uman Rights !ct$
1. /ills o' rights deates: a historical overview
Cha"ter 10 discusses the "revious attem"ts at the federal level to
formally "rotect human ri!hts$ throu!h either constitutional
amendment or the "assa!e of new le!islation& /t also outlines the
ndin!s and outcomes of recent in4uiries into the desirability of
human ri!hts #cts at the state and territory level&
'he drafters of the #ustralian Constitution considered whether they
should include a list of ri!hts and ultimately settled on includin! a
small number of limited ri!hts& Since then$ two attem"ts have been
made to include human ri!hts in the Constitution by referenda.in
19-- and 1988& 5oth failed& Four ma7or attem"ts have also been
made to "ass human ri!hts le!islation at the federal level.by Senator
Eionel Aur"hy in 19H+$ by the Fraser Government in 1981$ by Senator
Gareth >vans in 198-$ and by Senator Eionel 5owen in 198,& Only the
Fraser Government(s attem"t met with success< it resulted in
enactment of the Human Rigts !ommission Act 19"1 ?Cth@&
Lhat is common to the failed "ro"osals is the im"act they had on
state "ower& 'he constitutional amendments sou!ht to constrain
states( "ower by reference to ri!hts& 'he le!islative attem"ts either
im"osed obli!ations on state authorities or aBected the o"eration of
state le!islation& /n addition$ the "ro"osals were seen as eBorts to
transfer "ower from a democratically elected "arliament to an
unelected 7udiciary&
Summary

1 ))iii
/n recent years ve states and the #ustralian Ca"ital 'erritory have
conducted in4uiries into how human ri!hts can be better "rotected& /n
Fictoria$ 'asmania$ Lestern #ustralia and the #C' the in4uiries were
conducted by inde"endent committees$ all of which recommended
the ado"tion of a human ri!hts #ct for their 7urisdiction& 'he #C' and
Fictoria have taken action$ "assin! the Human Rigts Act #00$ ?#C'@
and the !arter o% Human Rigts and Responsi&ilities Act #00' ?Fic@&
'asmania and Lestern #ustralia have deferred action until this
=ational *uman 6i!hts Consultation is nalised& /n Mueensland and
=ew South Lales in4uiries were conducted by "arliamentary
committees$ both of which re7ected a human ri!hts #ct and
recommended the ado"tion of other measures to "rotect and "romote
human ri!hts&
11 0tatutory models o' human rights protection: a
comparison
Cha"ter 11 describes and com"ares the various human ri!hts #cts
that have been im"lemented overseas and in Fictoria and the #C'& /t
focuses on 7urisdictions that have ado"ted statutory bills of ri!hts and
a Jdialo!ue( model of human ri!hts "rotection& Such a model sets out
a list of human ri!hts and accords the three branches of !overnment
.the e)ecutive$ the le!islature and the 7udiciary.s"ecic roles in
relation to "rotection and "romotion of those ri!hts&
/n 1990 =ew Nealand "assed the (ill o% Rigts Act 1990& 'his
le!islation a""lies to acts done by the le!islative$ e)ecutive or 7udicial
branches of !overnment and those "erformin! "ublic functions$ and it
"rotects both natural "ersons and le!al "ersons& Civil and "olitical
ri!hts are "rotected$ and there is a !eneral limitation clause that
allows all the listed ri!hts to be limited in s"ecic circumstances& 'he
=ew Nealand #ttorney;General is re4uired to brin! le!islative
"rovisions that are inconsistent with human ri!hts to the attention of
"arliament& Courts are re4uired to inter"ret le!islation consistently
with human ri!hts but are not e)"ressly em"owered to issue a
declaration of incom"atibility& 'here is no free;standin! ri!ht to brin!
a court action for a breach of human ri!hts$ and there is no e)"ress
"rovision for remedies& 'he courts have$ however$ held that dama!es
may be awarded a!ainst "ublic authorities that commit human ri!hts
breaches&
/n 1998 the Cnited Kin!dom "assed the Human Rigts Act 199"$
which "rohibits "ublic authorities from actin! in a way that is
incom"atible with human ri!hts& 'he ri!hts "rotected.those
))iv 1
*uman 6i!hts Consultation Committee 6e"ort
reco!nised in the >uro"ean Convention on *uman 6i!hts.are mainly
civil and "olitical ri!hts& 'here is no !eneral limitation clause$ but
s"ecic ri!hts can be limited& 'he Ainister introducin! le!islation
must make a statement that the 5ill is com"atible with convention
ri!hts or that$ des"ite the 5ill(s incom"atibility$ the !overnment
wishes to "roceed with its enactment& 'he 8oint Committee on *uman
6i!hts routinely scrutinises 5ills for human ri!hts com"atibility& Courts
are re4uired to read le!islation and !ive eBect to it in a way that is
com"atible with human ri!hts& Lhere this is not "ossible$ a court may
issue a declaration of incom"atibility& 'he relevant Ainister may then
amend the le!islation if necessary& 'he #ct allows individuals to brin!
claims a!ainst "ublic authorities that act incom"atibly with human
ri!hts$ and courts may !rant 7ust and a""ro"riate remedies$ includin!
dama!es&
'he #C'(s Human Rigts Act #00$ "rohibits "ublic authorities from
actin! in a way that is incom"atible with human ri!hts and a""lies
only to individuals& 'he ri!hts "rotected are civil and "olitical ri!hts$
and there is a !eneral limitation clause allowin! all the listed ri!hts to
be limited in "articular circumstances& 'he #ct re4uires the #C'
#ttorney;General to state whether a 5ill introduced into the
Ee!islative #ssembly is consistent with human ri!hts& 'he Scrutiny of
5ills and Subordinate Ee!islation Committee must re"ort to the
assembly on human ri!hts concerns raised by 5ills& So far as it is
"ossible to do so consistently with their "ur"ose$ #C' laws must be
inter"reted in a way that is com"atible with human ri!hts$ and the
Su"reme Court may issue a declaration of incom"atibility where this is
not "ossible& #n individual who feels he or she is a victim of a breach
of human ri!hts by a "ublic authority may brin! a claim and$ with the
e)ce"tion of dama!es$ the Su"reme Court may !rant the relief it
considers a""ro"riate&
'he Fictorian !arter o% Human Rigts and Responsi&ilities Act #00'
makes it unlawful for a "ublic authority to act in a way that is
incom"atible with human ri!hts and a""lies only to natural "ersons&
'he ri!hts "rotected are civil and "olitical ri!hts$ includin! the cultural
ri!hts of /ndi!enous "eo"les& 'here is a !eneral limitation clause
allowin! all the listed ri!hts to be limited in "articular circumstances&
# member of "arliament introducin! a 5ill must make a statement
e)"lainin! how the 5ill is com"atible or incom"atible with human
ri!hts$ and all 5ills must be e)amined by the Scrutiny of #cts and
6e!ulations Committee for com"atibility with human ri!hts& /n
e)ce"tional circumstances the charter allows "arliament to declare
that an #ct or le!islative "rovision a""lies des"ite incom"atibility& So
Summary

1 ))v
far as it is "ossible to do so consistently with their "ur"ose$ all
statutory "rovisions must be inter"reted in a way that is com"atible
with human ri!hts& /f this is not "ossible$ the Su"reme Court may
issue a declaration of inconsistent inter"retation& 'he charter does not
establish an inde"endent cause of action a!ainst "ublic authorities for
human ri!hts breaches$ and remedies are available only in the
conte)t of a related claim&
12 The case 'or a *uman Rights !ct
'he most contested o"tion for better "rotection and "romotion of
human ri!hts was the introduction of com"rehensive le!islative
"rotection$ variously referred to as a Jbill of ri!hts($ a Jcharter of ri!hts(
or a Jhuman ri!hts #ct(& Of the +, 01- submissions the Committee
received$ +2 091 discussed the o"tion of a charter of ri!hts or a
human ri!hts #ct& Of these$ 2H 888 were in favour and -20+ were
o""osed&
Cha"ter 12 outlines the main ar!uments "ut to the Committee in
favour of an #ustralian *uman 6i!hts #ct&
# *uman 6i!hts #ct would redress the inade4uacy of e)istin! human
ri!hts "rotections& 'here are in the current human ri!hts framework
!a"s that would be lled by a com"rehensive statement of the
fundamental ri!hts and freedoms of all #ustralians and a mechanism
for ensurin! com"liance with those ri!hts and freedoms& Other
im"rovements to the e)istin! human ri!hts "rotections would
continue to be defective in the absence of a *uman 6i!hts #ct& Such
an #ct would also serve as an im"ortant symbolic statement of
#ustralian values and would reinforce our national identity&
/t was also ar!ued that a *uman 6i!hts #ct would ensure !reater
"rotection of the ri!hts of minorities and other mar!inalised "eo"le&
#s well as "rovidin! a set of human ri!hts a!ainst which "ro"osed
laws and "olicies could be assessed$ a *uman 6i!hts #ct would assist
in educatin! individuals and !rou"s about their ri!hts and
em"owerin! them to call for better "romotion and "rotection of them&
# *uman 6i!hts #ct would im"rove the 4uality and accountability of
!overnment& 'he Jdialo!ue( model would !enerate between the
7udiciary$ the e)ecutive and the le!islature a conversation about
human ri!hts and would encoura!e "ublic debate on the sub7ect& 'his
would im"rove !overnment "olicy$ le!islation$ !overnment service
delivery and 7udicial decisions&
))vi 1
*uman 6i!hts Consultation Committee 6e"ort
# culture of res"ect for human ri!hts would be en!endered if a
*uman 6i!hts #ct was introduced& Over time$ im"lementation of such
an #ct by "oliticians$ "ublic sector a!encies and the courts would lead
to !reater awareness of human ri!hts in the community and !reater
consideration of and adherence to human ri!hts "rinci"les by all
sectors of the community&
#ustralia(s international standin! in relation to human ri!hts would be
im"roved if a *uman 6i!hts #ct was introduced& Domestic
im"lementation of #ustralia(s international human ri!hts obli!ations
would limit future criticism for non;com"liance$ would reduce the
number of com"laints made to international treaty bodies$ and would
bolster #ustralia(s credibility when commentin! on human ri!hts
abuses in other 7urisdictions&
# *uman 6i!hts #ct would brin! #ustralia into line with other
democracies& #s the only Lestern democracy that does not have
some form of national charter or bill of ri!hts$ #ustralia could be at
risk of becomin! isolated from develo"ments in other similar le!al
systems& #ustralia(s ability to take "art in discussions about human
ri!hts in the international arena mi!ht also be adversely aBected&
Finally$ a *uman 6i!hts #ct could !enerate economic benets$
reducin! the economic costs associated with "olicies that do not
"rotect the lives and safety of #ustralians&
13 The case against a *uman Rights !ct
Cha"ter 1+ outlines the main ar!uments "ut to the Committee
a!ainst a *uman 6i!hts #ct&
/t was ar!ued that human ri!hts are already ade4uately "rotected in
#ustralia& # *uman 6i!hts #ct is unnecessary because #ustralia
"rovides ade4uate "rotection of human ri!hts throu!h democratic
institutions$ constitutional "rotections$ le!islation and the common
law& #ustralia en7oys !reater social e4uity than other countries that do
have a human ri!hts #ct&
'here would be an unacce"table shift of "ower from the le!islature to
the 7udiciary if a *uman 6i!hts #ct was introduced& Such an #ct would
re4uire 7ud!es to make "olicy decisions$ could result in courts
Jrewritin!( le!islation$ and would ultimately lead to the "oliticisation of
the 7udiciary$ underminin! "ublic condence in the inde"endence of
the courts&
Summary

1 ))vii
# *uman 6i!hts #ct would not result in better human ri!hts
"rotections& =or would it result in better laws$ since "arliament either
would focus on "re;em"tin! ne!ative 7udicial conse4uences or would
abdicate its duty in relation to di%cult "olicy 4uestions$ leavin! them
to the courts& /t would not result in better !overnment "olicies and
services$ and it would im"ose further costs on !overnment a!encies&
# *uman 6i!hts #ct mi!ht actually limit human ri!hts or lead to other
ne!ative conse4uences for human ri!hts "rotection& 'he very "rocess
of identifyin! and denin! ri!hts can limit them$ and unintended or
adverse conse4uences could Dow from the "rotection of certain ri!hts&
/f a *uman 6i!hts #ct was introduced it would !enerate e)cessive and
costly liti!ation$ and the le!al "rofession would be the main
beneciary& Such an #ct could have adverse eBects on the court
system&
#ny further "rotection of ri!hts can and should be achieved throu!h
democratic "rocesses and institutions$ without the creation of a
*uman 6i!hts #ct& 6i!hts are best "rotected throu!h a healthy
democracy$ a stron! civil society and stron! democratic institutions& /t
is the customs$ attitudes and culture of a "eo"le$ as e)"ressed
throu!h their institutions$ that determine the stren!th of a
commitment to democratic values&
'he economic costs of introducin! a *uman 6i!hts #ct would
outwei!h any "articular benets the #ct mi!ht have to oBer&
# *uman 6i!hts #ct would le!alise human ri!hts unnecessarily& /t
would transform social and "olitical 4uestions into le!al ones$ and this
would turn moral debates about ri!hts into technical debates about
statutory inter"retation$ underminin! the "otential for cultural
chan!e&
1" Practical considerations 'or a *uman Rights !ct
Cha"ter 1- discusses the form a *uman 6i!hts #ct could take$ !iven
the various le!al and "ractical considerations associated with its
a""lication&
'he ma7ority of submissions that broached this sub7ect "ro"osed that
any *uman 6i!hts #ct introduced should ado"t the Jdialo!ue( model$
which has been im"lemented in =ew Nealand$ the Cnited Kin!dom$
the #C' and Fictoria& #lternative models were$ however$ also
"ro"osed$ amon! them the Canadian le!islative model ?which would
))viii 1
*uman 6i!hts Consultation Committee 6e"ort
allow courts to declare le!islation ino"erative if it is found to be
inconsistent with human ri!hts@$ a J"arliamentary( model ?which would
seek to "rotect human ri!hts throu!h democratic institutions and
inde"endent oversi!ht mechanisms$ rather than throu!h 7udicial
review@ and an Jentrenched( model ?which would involve amendin!
the Australia Act 19"' to include a list of ri!hts@&
'he submissions raised numerous 4uestions to be considered in the
develo"ment of a *uman 6i!hts #ct$ amon! them the followin!<
)e *urisdictional scope o% te Act+ Should the #ct a""ly only at the
federal level or also at the state and territory levelO #nd should it
a""ly e)traterritoriallyO
!ompliance wit te Act+ Should the #ct bind both "ublic
authorities and "rivate entitiesO #nd what test should be ado"ted
for determinin! whether an authority e)ercises a J"ublic function(O
,o sould &e protected- Should the #ct "rotect natural "ersons
onlyO Should it "rotect !rou"s as well as individualsO Should it
"rotect citiPens only or all "eo"le in #ustralia(s 7urisdictionO #nd
should it "rotect all "eo"le within #ustralia(s 7urisdiction overseasO
,at rigts and responsi&ilities sould &e included- Should the #ct
"rotect all the human ri!hts for which #ustralia has international
le!al obli!ationsO Should it include ri!hts for "articular !rou"sO
Should it "rotect civil and "olitical ri!hts onlyO #nd should it "rotect
economic$ social and cultural ri!hts$ the ri!hts of /ndi!enous
"eo"les$ and new and evolvin! ri!htsO
.ould responsi&ilities &e included- Should substantive
res"onsibilities be included in the #ct or are they best left to the
"reamble or limitations clausesO
,at limitations sould appl/- Should the #ct contain a !eneral
limitations "rovision allowin! ri!hts to be limited in s"ecic
circumstancesO Should limitations be included in s"ecic ri!hts
"rovisionsO #nd should a limitations clause a""ly to Jabsolute(
ri!htsO
Human rigts in legislation and polic/ development+ Should human
ri!hts im"act statements be re4uired for all Cabinet submissionsO
Should statements of com"atibility be re4uired for new lawsO
Should a "arliamentary committee be char!ed with reviewin! new
laws for their com"liance with human ri!htsO #nd should an #ct
contain an Joverride "rovision( that allows "arliament to s"ecify
that the #ct will not a""ly to a "articular "iece of le!islationO
Summary

1 ))i)
Interpreting and appl/ing te Act+ Should le!islation be inter"reted
.so far as it is "ossible to do so consistently with its "ur"ose.
com"atibly with human ri!htsO Should the #ct s"ecify that courts
can consider forei!n and international 7uris"rudence in construin!
human ri!htsO Should courts be em"owered to make declarations
of incom"atibility where they are not able to inter"ret le!islation
consistently with human ri!hts$ and how would such a mechanism
o"erateO Should the !overnment be re4uired to res"ond to such
declarations and$ if so$ how should it do thatO #nd should the
inter"retative "rovision and declarations of incom"atibility also
a""ly to subordinate le!islationO
)e role o% pu&lic autorities+ Should "ublic authorities be re4uired
to act com"atibly with and !ive "ro"er consideration to human
ri!htsO #nd should this be su""orted by measures to instil human
ri!hts in "ublic sector cultureO
A cause o% action+ Should there be a free;standin! cause of action
for the violation of human ri!htsO #nd should human ri!hts claims
be raised only in the conte)t of other "roceedin!sO
Remedies+ Should remedies be available for human ri!hts
breachesO /f so$ should there be a ran!e of both 7udicial ?for
e)am"le$ in7unctions$ declarations and dama!es@ and non;7udicial
?for e)am"le$ investi!ation and conciliation by the Commonwealth
Ombudsman or the #ustralian *uman 6i!hts Commission@
remedies for human ri!hts breachesO
,o can &ring uman rigts claims- Should only victims of human
ri!hts breaches be able to brin! claimsO Should others be able to
brin! a claim on their behalfO #nd should the federal #ttorney;
General and the #ustralian *uman 6i!hts Commission be able to
intervene in human ri!hts cases as of ri!htO
A review provision+ Should the #ct "rovide for review of its
o"eration within a "articular time frameO #nd should it s"ecify the
matters for review and by whom the review should be conductedO
Part -ive The way 'orward
1% The Committees 1ndings
Cha"ter 1, "rovides an overview of and a conte)t for the
recommendations the Committee makes in the li!ht of the various
o"tions it considered$ their advanta!es and disadvanta!es$ and the
))) 1
*uman 6i!hts Consultation Committee 6e"ort
level of community su""ort each attracted& /t also sets out the
Committee(s recommendations in relation to a *uman 6i!hts #ct:
these recommendations are based on the discussion in Cha"ters 10 to
1-& Lhen read in con7unction with the re"ort(s summary$ Cha"ter 1,
reveals the Committee(s thinkin! behind the "rimary
recommendations&
Summary

1 )))i