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A Human Rights Act for Australia

Rights Rights and Freedoms

A Human Rights Act for Australia

Graeme Innes AM

Queensland Charter Group

6 March 2009

I begin by paying my respects to the Jagera and Turrbal people, the traditional owners of the land where we gather today.

I would also like to acknowledge the presence of Members of Parliament - Mike Reynolds (Speaker of the Legislative Assembly), Linda Lavarch, Dean Wells, Evan Moorhead; Christine Smith, Desley Scott, Kate Jones, Dianne Reilly and Vicky Darling.

I would also like to acknowledge Justice Atkinson; Commissioner Susan Booth, the Honourable Matt Foley, Aunty Valda Coolwell, Simeon Beckett, and Michael Cope.

Finally, I would like to thank the Queensland Charter Group for inviting me to make this address.

Since the announcement of the National Human Rights Consultation in December last year, discussion about human rights has steadily grown. Advocates, politicians, journalists, academics and ordinary people in communities across the country are talking about human rights. It is a pleasure to speak here today and to contribute to this national conversation.

This is a time of change, and a time of real opportunity to take part in shaping a new era for human rights in this country. The Queensland coat of arms proudly displays the motto; Audax at Fidelis (Bold but Faithful). It is an admirable maxim, and one which neatly encapsulates what I want to talk to you about today; a human rights act for Australia.

I will begin by talking about how human rights are protected in Australia, and where these protections still fall short.

I will then draw on my experiences as Human Rights Commissioner in discussing the need for more effective human rights protection.

Finally, and most importantly, I will demonstrate how a federal Human Rights Act would provide comprehensive legal protection for human rights for everyone, everywhere, everyday.

So, where are we at now in Australia? Are we at the dawn of a new era of rights protection? Many of you would agree that we seem to be in the midst of a time of significant change.

Over the past few years, we've seen exciting developments at the state and territory level. We've had human rights charters adopted in the ACT and Victoria, and successful consultation processes held in Tasmania and Western Australia.

Additionally, the past year has seen some very encouraging developments in human rights protection at the federal level. These include:

  • the apology to the stolen generations
  • a commitment to renewed engagement with the United Nations system
  • support for the Declaration on the Rights of Indigenous Peoples
  • a commitment to ratify the optional protocol to the Convention against Torture
  • consultations underway on ratifying the optional protocol to CEDAW
  • consideration by the Treaties Committee of ratification of the Disability Convention
  • closure of the detention centres on Nauru and Manus Island
  • and, of course, the announcement and progress of the National Consultation.In fact, as we have this discussion today, the National Consultation Committee are in Queanbeyan NSW holding their first Community Roundtable, hearing firsthand about the human rights concerns of that community.

We welcome all of these developments. But they do not take away from the fundamental flaws in Australia's legal and political systems when it comes to protecting human rights; flaws which I have no doubt the National Consultation committee will hear a great deal about in the months to come.

The fact is that human rights are still insufficiently protected in Australia. Let me give you a few familiar examples from my work as Human Rights Commissioner.

The first is mandatory detention of asylum seekers, who arrive in Australia without a visa. This policy has had devastating impacts on both adults and children. One boy was so affected and distressed by his detention at Woomera immigration detention centre, that in the space of four months, he tried to hang himself four times, climbed into the razor wire four times, slashed his arms twice, and went on hunger strike twice. This boy was only fourteen years old. He was eventually found to be a refugee.

Some important changes have been made to immigration policy since then, which mean that children aren’t held in immigration detention centres anymore. However, Australia’s mandatory detention policy still stands, and children continue to be detained in alternative forms of detention.

Australia’s anti-terrorism laws also have insufficient regard for human rights standards. They significantly restrict rights such as the right to freedom of expression, and freedom of association. The impact of these laws was graphically demonstrated in the case of Dr Haneef, an innocent man detained for 12 days without charge.

These, and many other examples, demonstrate the need for greater human rights protection in Australia. So, how can we achieve this?

The Australian Human Rights Commission believes that the first step towards achieving better rights protections, and a human rights culture in Australia, is through a federal human rights Act. Many of the worst violations of human rights that have taken place in Australia, could have been prevented – or at least, minimised – if there had been a clear legal statement of the basic rights which the government and public bodies were committed to respecting and promoting.

The essential aim of a federal Human Rights Act would be to stop human rights from being breached in the first place, by making sure that Parliament takes relevant rights into account before passing laws. And by making sure the government and public authorities consider human rights as they design and implement policies.

Over the long term, what we need is a governing culture where this is the accepted norm, not the exception to the rule.

Let’s take some specific examples from the disability area of what a Human Rights Act could do. These examples show how human rights protections could be improved for a very large number of people in Australia.

A Human Rights Act would make the federal Parliament consider how laws impact on human rights for example, Parliament might be required to explain whether new laws are compatible with the rights in the new UN Disability Convention.

A Human Rights Act would make the federal government respect human rights when developing policy – for example, policies about providing services for people with disability or support for their carers.

A Human Rights Act would make public servants take human rights into account when making decisions and delivering services – for example, by making sure that every Centrelink office has at least one person trained to work with people with disability.

A Human Rights Act would provide a range of enforceable remedies if a government department breaches the human rights of people with disability.

Most importantly, a Human Rights Act could also provide a stronger framework for advocacy on disability rights issues. It would provide a language that people with a disability and their advocates could use to describe what is required to live with dignity and respect.

In the UK, where there has been a national Human Rights Act since 1998, advocacy has been a powerful tool for protecting the rights of people with a disability. A publication by the British Institute for Human Rights tells the story of a disabled woman who was advised by her occupational therapist to get a special ‘profile’ bed. She was unable to leave her bed and this new arrangement would allow carers to give her bed baths. The woman requested a double bed from the authority caring for her, so that she could continue to sleep next to her husband. Her request was refused, even though she offered to pay the difference in cost between a single and double bed herself. After an 18 month stalemate the woman sought advice from a disability advocacy group, who suggested the woman invoke her right to respect for private and family life under the UK Human Rights Act. Within three hours of putting this argument to the authority, it found enough money to buy the whole of her double profile bed.1

Debate about the merits of a Human Rights Act for Australia has already begun in our newspapers and on talkback radio. At one end of the spectrum, at the end of last year callers to a radio program were promoting the protections of rights such as:

  • the right to wear thongs anywhere I please
  • the right to collect my ball from over my neighbour’s fence.

I’m pleased to see that Australians are already taking it all so seriously, in true Aussie spirit!

More serious questions involve matters such as what a human rights act means for Australian democracy, and whether a charter transfers too much power to our judges. A human rights act is fundamentally democratic. It would not, as many commentators would have you believe, transfer power to judges. Instead, it would ask judges to advise Parliament about whether laws complied with human rights standards. The last word on rights would always stay with our elected members of Parliament.

A human rights act would simply cement in Australian law the basic standards of dignity, equality and fairness, that the government has already agreed to uphold through ratifying the major international treaties.

Australia is the only western democracy without some form of comprehensive legal protection of human rights. This is a problem because, as I have already outlined, these human rights continue to be violated. It's time we caught up with the rest of the world.

Most Australians care about being treated with dignity and respect. They value their freedom. And they expect to be treated with equality. Most Australians wholeheartedly support those values – even though they may not identify them as being fundamental human rights. Our challenge is to make this connection.

A Human rights Act for Australia is bold but faithful; it is faithful to the international human rights principles which we have already signed up to, and importantly it is faithful to the Australian values of respect, dignity, freedom and equality. A human rights act would boldly turn these principles into a law which everyone – including the most vulnerable people in our society – can use to better protect their human rights.

Our challenge now is to be active players in this new era of rights. Spread the word. Reach out beyond the usual suspects you might expect to take part in a consultation like this. We need to include as broad and diverse a range of voices as possible. Talk to your friends, your colleagues, your neighbours and your community about human rights. Make a submission to the consultation. Make sure that your views on human rights are heard.

[1] British Institute of Human Rights, Changing Lives (2nd Ed, 2008), 14.

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