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A national Human Rights Act needs to be introduced in Australia

Commission – General

Opinion piece by Commission President Emeritus Professor Rosalind Croucher AM, first published in the Canberra Times.

People's human rights matter, all of the time, but this does not hold true in Australian law. We need to change that by introducing a national Human Rights Act.

If there were ever a time to do so, it is now - as public awareness of human rights has been reignited through the ramifications of COVID-19 safety measures, the administration of the robodebt scheme, and the impacts of artificial intelligence on decision-making, to name just a few.

The royal commission into the robodebt scheme has revealed, almost daily, that decisions in the scheme's administration were made without due consideration of human rights impacts on vulnerable Australians.

One wonders whether such a scheme would ever have been possible if a Human Rights Act had existed, with an enforceable obligation for ministers and public servants to consider the consequences their decisions would have on people's human rights.

This week the Australian Human Rights Commission launched its proposed model for a national Human Rights Act, detailed in a comprehensive position paper.

This model would ensure legal protections for the fundamental rights of all Australians and provide avenues for redress where people's rights are breached.

Australia is the only liberal democracy that does not have an act or charter of rights, and Australians currently enjoy very few legal protections for their basic rights.

The starting point for a national Human Rights Act is to recognise that everyone's rights matter, all of the time. We should expect that Parliament and public servants will actively consider the human rights impacts of decisions they make, and there should be consequences if they fail to do so.

It would mean that the absence of courage, interest and awareness in human rights that public servants have admitted to throughout the robodebt royal commission could have had more serious legal consequences.

The present failure to meet this expectation shows why a Human Rights Act is the central missing piece of government accountability in Australia.

It would act as a proactive, preventative measure by articulating what Australians' basic rights are; and its provisions for enhanced scrutiny of executive decision-making would increase transparency and trust in governments by requiring parliamentarians and public servants to fully consider human rights in their decisions, laws, policies, and practice.

A Human Rights Act would be responsive, as well as preventative, with avenues for people to challenge infringements of their rights. Under the proposed model, the commission would continue to conciliate human rights complaints, and complainants would have access to the Federal Court if matters were unable to be resolved through conciliation.

The model also includes pathways to review administrative decisions that are incompatible with human rights.

During COVID-19, Australian citizens stranded overseas were effectively abandoned, with no avenue to appeal decisions on their travel bans.

Under a Human Rights Act, people could endeavour to reach a solution through conciliation or administrative appeal, supported by the commission's processes, and then refer the matter to the Federal Court.

This replicates the current process for unlawful discrimination complaints and builds on the experience of the commission over 30-plus years. In short, it is an evolution not a revolution.

It would also realise the original design of the commission when it was permanently established in 1986, which was designed around an Australian Bill of Rights.

Opponents of a Human Rights Act often claim the Constitution and common law rights established by courts provide sufficient human rights protections.

But neither were effective remedies for a wide range of human rights breaches during the COVID-19 pandemic, nor did they sufficiently protect the rights of victims of the robodebt scheme.

And indefinite administrative detention is still lawful under Australian law. There are too many examples that demonstrate that the constitution and common law rights are not sufficient at proactively preventing human rights breaches or providing remedies when they occur.

Australia needs a national Human Rights Act to close that gap, but also to safeguard against new types of human rights abuses that arise in our ever-changing society, often with emergence of new technologies.

The impacts of social media and artificial intelligence on basic rights like privacy, equality and procedural fairness are well publicised, but they are not well accounted for in existing legislation.

A Human Rights Act would ensure emerging technologies and commercial practices, and the laws that govern them, comply with human rights principles.

A Human Rights Act at the federal level would also join the dots with those states and territories that have introduced statutory human rights protections, and build the fabric of national protections.

It would cover all the basic rights that Australians expect should be protected by law, according to our values of fairness, equality of opportunity, freedom, and respect.

These rights would apply equally to all people. Australia has committed to various international human rights obligations, telling the world those rights matter. We need to legislate domestically to ensure these rights matter for all Australians, all of the time.

Rosalind Croucher AM, President