The Great Debate: Does Australia need a charter of human rights
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The Great Debate: Does Australia need a charter of human rights

October 9, 2019

Australian Human Rights Commission:
everyone, everywhere, everyday The Great Debate — Does Australia
need a charter of human rights? My role for today
is to talk about what a Human Rights Act
for Australia might look like and to address
some of the arguments that have been made against
an Act of this kind being adopted. But, I’d like to open with
just a few general observations. The first is that there
is no perfect model of human rights protection waiting to be discovered by
this committee or anyone else. Thoughtful, informed
well-meaning individuals who care about human rights can, and do, hold,
sometimes passionately, very different views on
the best way for Australia to protect human rights. While the views of all of
these people are to be respected, ultimately the issue calls
for a judgment to be made about what is the best
that we can do at this time
for this country. We on this side
of the debate do not suggest that
a Human Rights Act provides the perfect solution. But, we do believe that,
despite its shortcomings, it is a necessary element of the best
model of human rights protection that can be devised
for Australia now. My second observation is
that fear of change is natural but not necessarily logical. So, it is fortunate
that we in Australia are not the first
liberal democracy to have considered statutory
protection of human rights. We can learn from the comparable
experience of other jurisdictions with whom we have
much in common, like the United Kingdom, like Canada,
like New Zealand, and like Victoria
and the ACT. They have gone down
this path before. These jurisdictions,
we can observe, have not experienced
the terrible things that we are told to fear
from a Human Rights Act. The sky has fallen in
in none of those places. Indeed, responsible people, some of whom have been
heard over these three days, who have worked closely with a
statutory protection of human rights in those jurisdictions are very comfortable with
the way those acts are working and the way they’ve impacted
on the three branches of government in those jurisdictions. My third observation is
one that Lisa also made, but let me make it again. While human rights
are for everyone, some in Australia are much
more likely than others to find that their human rights
are not being respected. Lisa has told us of some
of them in very moving terms. These people are not,
as a general rule, found in academia
or in judges’ chambers, they do not hold offices
as Ministers of the Crown, or as Senators, or indeed as President of
the Australian Human Rights Commission. I urge the consultation Committee, in informing its judgments as to whether human rights are
adequately protected in Australia, and as to what
rights particularly require greater protection
in our country, to give primary weight to the
voices that they have heard from the most vulnerable
in our society to human rights abuses. My final general observation is that the
Human Rights Act for which we on this side
of the debate advocate is not a powerful instrument. Indeed, it is criticized by
many for being too weak. The Act would be
a modest addition to the existing
checks and balances on the powers of the three
branches of government that we have learned to value. But it would be an addition
that would appropriately reflect the growing recognition
in this country and elsewhere that respect for human rights
is critical to a peaceful, to an inclusive and
therefore to a safe society. Equally important,
it seems to me, and act of this kind would
provide a moral compass to guide public decision
making in good times, and perhaps more importantly
in bad times. So, what of the model? There are, of course,
many possible models of a Human Rights Act. The model that we support would help develop a culture
of respect for human rights in Australian government
and more generally. It is such a culture, if I may answer something
just said by Professor Craven, that might have saved
Mr. Ward, it is that culture that might
have made Parliament think about what it meant to imprison
children behind barbed wire. It is a culture of that kind
that might have spared Ms. Cornelia Rau
and Dr. Haneef. The Act would do this by requiring
each branch of government to integrated consideration
of human rights into its work. In summary, the Act
would require Parliament to scrutinize all proposed laws
for compliance with human rights, require the executive to take
human rights into account when developing policies
and making decisions, and it would require the judiciary
to interpret and imply all laws compatibly with human rights unless to do so would
not be consistent with the puropose
of the legislation. So, let me speak
just a little more about how the Act would
impact on the Parliament and the executive. The Act would not prohibit
the passing of laws that infringe human rights. But, one of the big advantages
of having a Human Rights Act is that it could
require government to consider human rights
from the earliest stages of policy-making
and law formulation. It would promote a culture in
which every exercise of power, that might affect
our human rights and fundamental freedoms, is identified and justified. All new laws would be accompanied
by a human rights impact statement. A Parliamentary committee
would assess that statement and publish its own report. These measures would inform,
and therefore improve, parliamentary debate. They would also encourage
informed public debate about the human rights impacts of executive and
parliamentary decisions, and may prevent human rights
from incurring in the first place. Although we could
have these things without having a
Human Rights Act, the experience of
other jurisdictions is that their impact is
likely to be reinforced if there was a
Human Rights Act in place. Turning to the judiciary a Human Rights Act should also
provide guidance to the courts on how the legislature wishes
its laws to be construed by indicating that all laws
should be construed consistently with the rights
protected by the Act unless to do so
would be inconsistent with the purpose
of the law in question. An interpretative
provision of this kind would be but a
modest expansion of the common law presumption that Parliament does
not intend to infringe on common law rights
and fundamental freedoms. It would be in this context that a court might find that it
was unable to construe a law compatibly with a
Human Rights Act. In such a case,
a finding . . . In such a case . . . In the case of such a finding a Human Rights Act should,
we believe, allow for the Attorney-General
to be advised and require that office holder,
when so advised, to report to the Parliament
on the court’s finding. The Act would not,
as I have mentioned, give the courts the
power to invalidate laws, and so it would do nothing to
impair Parliamentary sovereignty. And, to answer something
said by Mr. Carrow earlier, no one is proposing
constitutional change. That is why there is no issue
of anyone going to the court for a constitutional ruling. We also urge the enactment
of a Human Rights Act which gives individuals
the right to obtain redress when their human rights,
as protected by the Act, are not respected. We are persuaded that a right
for which there is no remedy is no right at all. But, redress, of course,
would only be available when the act complained of was
not an act required by the law. And, we do not step back
from recommending that the redress extend to
economic, social, and cultural rights. The adjudication of
rights of this kind is happening all
around the world, and indeed in this country. Under our
Racial Discrimination Act complaints can be made concerning issues
such as housing, the right to education
and training, and the right
to health care. My commission now
entertains complaints of breaches of economic,
social, and cultural rights. So, let me conclude
by saying simply this, Australia is a
great country to live in for most of us
most of the time. However, review of our history,
including our recent history, shows that we can do better, particularly better so far as the
most vulnerable in our communities are concerned. The enactment of
a Human Rights Act would show that we
are seriously committed to doing just that.

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