20 Apr 2024

Dialogue is not enough; we need a justiciable Human Rights Act

In May 2024 the federal Parliamentary Joint Committee on Human Rights will report on its review of Australia’s 2010 Human Rights Framework. The Coalition government having the Framework, the Committee is asked to report on whether any part of it should be re-established and improved on.

The Framework was the very limited response to the 2008 report of a government-commissioned National Human Rights Consultation, chaired by Frank Brennan. It largely drew attention to and relied on the efficacy of established institutional mechanisms such as the Australian Human Rights Commission, anti-discrimination law, administrative law and courts’ statutory interpretation.

This reliance on established institutional mechanisms was inadequate. Our democratic institutions are not designed or operated to extend human rights protection to all. Reliance on those institutions suits principally people with the power and position to make use of them and to influence them, power and position that is usually derived from wealth, social status, education, family, friendships, and simple good fortune.

The one innovation that came out of the Consultation report was the Parliamentary Joint Committee on Human Rights itself, to scrutinise legislative instruments for human rights compatibility. But the Committee cannot ensure that executive action – the way that legislative instruments are given effect by government officers – is human rights compliant. This is the work a Human Rights Act would do.

Significantly, however, the then government explicitly rejected the Consultation report’s recommendation that it enact a national Human Rights Act. The Attorney-General’s stated reason was curious: “the enhancement of human rights should be done in a way that, as far as possible, unites rather than divides our community.” This disregards local and near-global international experience of human rights laws, and relies on the untenable proposition that no legislation ought be passed against which there is opposition.

Differently from legislative scrutiny, a Human Rights Act is concerned with what people are concerned with: human rights in their daily lives. The human rights that matter to people are the human rights that are affected by the actions, decisions and discretions of those who act under the legislative instruments.

The Australian Human Rights Commission makes this argument in its 2022 Position Paper on a Human Rights Act for Australia, and it was illustrated in the National Human Rights Consultation’s direct engagement with people who are marginalised in society or are specifically vulnerable to their rights being threatened or violated.

The Consultation reported that the vast majority of participants referred “not to human rights per se, but to service providers”, and that there was a feeling that “when rights were not upheld it was often due to systemic problems with service delivery”. It was reported that “[s]ervice delivery was seen as a major area where improvements were possible – largely because this is where the actual day to day experience often derives from”, and that:

[a] fundamental, written document outlining the rights of all groups in society was seen by many of the marginalised and vulnerable groups to be a necessary step before any rights could be consistently protected. Although most generally agreed that Australian culture and society usually sought to uphold human rights, most felt that it was necessary to commit to the protection of human rights in writing so that this good intent had some specific guidance.

From this it is apparent that the adequacy of human rights protection in Australia must be measured first against the needs of disempowered people: people who do not gain the benefits of full participation in our liberal-democratic-market society, who do not enjoy the protection that comes from having ready access to established institutions, complex systems and a dominant culture, from being able to exercise and influence power, from being able to participate in public debate and political life, and from engaging in and profiting from the market economy.

Those whose rights are at stake include children and young people, casual workers, debtors, defendants, elderly people, homeless people, illiterate people, indigenous peoples, migrants, people with disabilities, people of different sexualities, poor people, prisoners, refugees, rural residents, single parents, tenants, under-educated people, and unemployed people.

Public policy commonly relies on education and awareness-raising as a means of achieving community wide attitudinal change particularly, in recent years in Australia, in relation to human rights. But in the absence of laws and their enforcement, no amount of education and awareness activity will achieve lasting change. Education and awareness activity alone do not prevent false and misleading commercial conduct, which is why we have fair trading laws, or prevent race discrimination, which is why we have anti-discrimination laws, or prevent erroneous decisions by bureaucrats, which is why we have laws that permit merits review.

For the disempowered – for those to whom the promise of human rights has real meaning – law is a last but necessary resort when advocacy, persuasion, campaigning, shaming and pleading fail to alleviate harm being done, or unfairness being perpetrated. Legal remedies are a part of the liberal-democratic package of protecting people and monitoring the state.

It is often the case that no law has been written to address a person’s situation, and that institutional processes or creative use of existing laws are inadequate. What is missing – the tool that the disempowered need – is a law that gives them the same entitlement to rights protection regardless of their status, that sets universal expectations of behaviour, that speaks to and for all people in all circumstances, and that guarantees minimum standards of respect, decency, and regard for human dignity.

A piecemeal approach to protecting interests will always exclude some and privilege others. A single law that guarantees the same standards to all is a statement of equality, inclusiveness and respect, and an essential means of directing society’s attention to the needs of the disempowered.

Australia is engaged in a continuing project to achieve a fair and inclusive society. Policies, practices and complementary laws offer protection and promise in many areas of life, to many people; none, yet, offers protection and promise to all. It is self-evidently the case that the human rights of the disempowered are not sufficiently protected; that people in Australia live today, and tonight, in poverty, fear, hunger, homelessness, ignorance, confusion, pain, powerlessness and despair is confronting evidence of the inadequacy of human rights protections in Australia.

A law that guarantees respect for human rights, by everyone for everyone, is an essential step towards completion of the project, to achieve a fair and inclusive Australian society.

For a Human Rights Act to play this role means, necessarily, that the guaranteed human rights are justiciable and enforceable. The human rights protections in the Australian Capital Territory, Victoria and Queensland are not, or not easily or comprehensively, justiciable and enforceable. Rather, those laws rely principally on a “dialogue” where the Executive, the legislature and the courts formally exchange their views on the enacted human rights law which has, it is hoped, rhetorical force.

The “dialogue model” is not an effective guarantee of people’s human rights, and its professed deference to “parliamentary sovereignty” is misguided. To quote Associate Professor Ryan Goss: “There is no Australian legislature that is sovereign or supreme.” As Goss points out, it is unremarkable that “substantive legal limits apply to Australian legislatures’ legislative power, and the Australian courts enforce those limits”.

A Human Rights Act would only be such an enforceable limit. It would define, promote and enforce human rights standards only in the same way that legislation, and courts, commonly promote and enforce expected standards of behaviour in society.

Similarly misguided is a view that economic, social and cultural (ESC) rights are not justiciable and enforceable in Australia.

There is extensive scholarly literature on the justiciability and enforceability of economic, social and cultural rights around the world. Analysing the National Human Rights Consultation report, Professor Andrew Byrnes criticised the report on the basis that it “restates the traditional position, assumes that ESC rights invariably and only involve major distributional choices, and fails to respond to the many arguments that have shown that such a simplistic dichotomy does not represent current thinking or practice in relation to ESC rights”.

In a 2009 opinion, barristers Peter Hanks QC, Graeme Hill, and Kristen Walker and Debbie Mortimer SC (as their Honours then were) advised on the justiciability of social and economic rights under a Commonwealth Human Rights Act, and said that there is no necessary constitutional objection to including economic and social rights in a federal Human Rights Act, and that such rights are capable of being interpreted and applied in the exercise of federal judicial power.

Submissions to the Committee’s review of the Human Rights Framework have closed. The Committee reports that it accepted submissions on, in particular, “whether the Australian Parliament should enact a federal Human Rights Act, and if so, what elements it should include”.

Those with most to gain from a justiciable and enforceable Human Rights Act are those least likely to have made a submission to a parliamentary inquiry. The Committee’s position on a Human Rights Act will reveal the extent to which their need for human rights protection has been recognised.

Originally published in Volume 98 of the Australian Law Journal, 2024, page 248 as ‘Will a Parliamentary Joint Committee Recommend a Justiciable Human Rights Act?’