Making rights a reality: the need for a Human Rights Act for Australia

Emeritus Professor Rosalind Croucher AM
FRSA FACLM(Hon) FAAL TEP

ACLM Sydney Dinner Meeting

10 December 2022

Abstract: This presentation, on International Human Rights Day, advances the case for a Human Rights Act for Australia, reflecting on experiences during COVID and the difference a Human Rights Act may have made.

Acknowledgements

Thank you, ACLM President, Dr Adam Griffin for your welcome.

Let me begin by acknowledging the traditional custodians of the land on which we meet, the Gadigal people of the Eora Nation and pay my respect to Elders, past, present and emerging.

Given our proximity to Barangaroo, perhaps we should also remember the woman after whom this part of Sydney is now named. Barangaroo was the second wife of Bennelong, and acted as an intermediary between the Aboriginal people and the early British colonists in New South Wales. She was a member of the Cammeraygal clan of the Eora Nation from across the harbour. Although not her traditional land, Barangaroo is named in her honour.

For my subject this evening, I will continue a theme I introduced on Monday, in my speech in the opening plenary panel of the WAML World Congress, namely the importance of a Human Rights Act for Australia — especially as this is Human Rights Day, marked in the international calendar of dates in honour of the passage of the Universal Declaration of Human Rights by the UN General Assembly on 10 December 1948.

Why a Human Rights Act?

As I reflect on the past nearly three years, it is clear that the pandemic has brought a renewed national focus, indeed, global focus, on the importance of centralising considering rights and freedoms during times of crisis — a greater ‘rights consciousness’.

Our challenge in the ‘after’, is to ensure that human rights remain central to government decision making and policy design on an ongoing basis.

In some way or another, each and every one of us has encountered restrictions — on our freedom of movement, the right to peaceful protest, the ability to engage in public areas without wearing masks and the requirement to provide personal information for the purpose of contact tracing. Thankfully, most of those restrictions have now gone.

Australians for the most part were willing to ‘do the right thing’, guided by public health advice informing the restrictions imposed by Federal, State and Territory governments. For the most part, governments openly justified their decisions — the Premiers and first ministers of this country maintaining a regimen of press conferences, often on a daily basis, that assisted some acceptance of the limits to rights and freedoms that were part of the emergency response. Although the action of the former Prime Minister in having himself sworn in to multiple ministries, without the knowledge of the relevant ministers, or the general public, did not pass official scrutiny.^[1] It led to a censure motion in Parliament and certainly did not pass what we call ‘the pub test’.

Government measures in the interests of protecting the health of the entire community have provided a range of conversations about our rights. But there is room for a deeper understanding of our rights in general and about human rights in particular — and especially about what rights are protected, or not, under Australian law.

In part, this a conversation about public understanding of rights. It is also a conversation about the legal architecture, or grammar, for protecting rights and freedoms in Australia. Other conversations go to the accountability of those for their decisions, which was the focus of my keynote address on Monday. Tonight, I want to focus on the idea of a human rights and the case for a Human Rights Act for Australia.

The grammar of ‘human rights’ and international law

The distinct language of ‘human rights’ arose principally in the aftermath of the Second World War and the horrors of the holocaust, embodied first in the Universal Declaration of Human Rights.^[2] This landmark document, adopted by the UN General Assembly on 10 December 1948.

That moment, in 1948, was embraced and marked across Australia. The Hon Michael Kirby AC CMG, whom many of you may know, remembers clearly that the UDHR was given to every schoolchild in Australia, on that flimsy aerogramme paper that some of you may remember.

What was distinctive about the UDHR was its move away from an international law that was about the rights of states among themselves, to an international law of human rights, which confers rights on individual men and women, and in a context where the United Nations was recognised as a distinct actor.

The UDHR was followed two decades later by two other major components of what is known as the ‘International Bill of Rights’—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.  Australia was a founding signatory to each of these instruments — as well as to the Charter of the United Nations itself. Indeed, an Australian was in the Chair of the General Assembly when the UDHR was adopted. And as a nation, Australia stepped forward in embracing the commitments of these great instruments.

Australia has signed and ratified each of the key international treaties since. And it has not been a party-political embracing of such treaties, either. Both sides of our politics of Westminster government — and in equal measure — have signed and ratified them, undertaking obligations to the world^.[3]

Sovereign domestic parliaments may not want to be ‘ruled by Geneva’ as one of the phrases goes, but signing up to the international community through its conventions, declarations, covenants and treaties does affect what sovereign parliaments do. It’s not so much about ‘rule’ by Geneva, but about reflecting sincerely upon those deep commitments in one’s domestic fields of operations.

However, little has been done to enact the rights and freedoms protected by these instruments into Australian law — despite the aspirations perhaps encouraged in the schoolchildren of Michael Kirby’s young years. This means that the rights and freedoms enshrined in these international human rights instruments are not directly enforceable in Australia. Our promises to the world, while genuine, are not backed up fully in practice.  

So, something like freedom of speech, contained in art 19 of the ICCPR for example, is found implied in the limited freedom of political communication in our federal Constitution (as a legislative limit, not a positive right), and in things like the limits on it expressed in defamation law and the constraints of the equitable doctrine of breach of confidence, and the grounds of unlawful discrimination, but if you wanted to pin it down more directly, other than in hyberbole, to explain to, let’s say, ‘the man on the Clapham omnibus’ or ‘the Bondi tram’ (drawing from your lectures in negligence law), you’d be struggling.

It is in ‘the vibe’, but it is not in law.

There is already considerable momentum in the direction of stronger human rights protections in Australia in the form of dedicated legislative embodiment as Human Rights Acts in Queensland, Victoria and the ACT. There is considerable agitation and advocacy in other State and Territory jurisdictions towards this objective too.

And while the model of these, as in all other Commonwealth countries, is nothing like that in the US, just because ‘everyone else’ has one, does that necessarily mean that we need one too at the federal level?

From the perspective of the jurisdiction of the Australian Human Rights Commission, it is still unfinished legal architecture. When we were put on a permanent foundation in 1986, the Commission was designed in tandem with an accompanying Australian Bill of Rights Act. The Bill was passed in the House of Representatives, but did not survive the Senate. More recently, the idea was the principal recommendation of the National Human Rights Conversation led by Fr Frank Brennan SJ, over a decade ago. It also did not progress — then under a Labor government, which may have been more inclined to consider it.

We are like a doughnut — with a hole in the middle.

The beauty of a Human Rights Act, and other measures that frontload rights-mindedness, is that they are expressed in the positive: affirming rights and freedoms, not just implying them or leaving them in the somewhat invisible space of an incomplete schedule to the Commission’s Act.

They become the basis of informed and accountable decision making, framed around a human rights-based approach.

For my own part, I have had somewhat of a ‘Road to Damascus’ conversion to the idea of, and need for, an Australian Human Rights Act and embedding human rights thinking more directly in our laws and decision making.

My journey

I must confess that was somewhat resistant to the idea of a Human Rights Act in Australia for a number of years. The American experience of a constitutional Bill of Rights, and litigation about rights in the courts, so publicly played out, were somewhat discouraging. For those like us with a deeply entrenched sense of the Westminster system of government and a strong adherence to the separation of powers, such a model does not sit well, particularly the politicisation of appointments to the US Supreme Court that we have all observed.

Our own constitutional drafters took a different approach. Not having a revolution as a propelling force in our constitutional imagining, we were more reserved. Our Constitution was essentially a deal among the nascent States in a federation. Moreover, we still regarded ourselves as ‘essentially British’.^[4]

It is not that our constitutional tradition was ‘opposed to rights’, but rather ‘opposed to judges having power to protect them from interference by legislation’.^[5] Those who drafted our Constitution, ‘preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers’.^[6]

Parliament is pivotal as the vehicle of rights protection. Whether it has been able to do this appropriately, as considered through the lens of COVID responses, is a central issue for continued reflection (as I posed in my remarks on Monday).

So, what changed my thinking about the importance of a Human Rights Act in Australia? It was not one specific Damascene moment, but a growing realisation, in three parts. And it was also about the model — the model of statutory rights protection in Commonwealth countries, retaining and emphasising parliamentary supremacy.^[7]

First, while our sense of rights is embedded in the common law, the common law has its limits. Protection of serious invasions of privacy, for example, has got stuck (in this country). The common law needs a great leap forward, as it achieved in Donoghue v Stevenson in relation to negligence (the snail in the bottle case),^[8] but we have not got there yet. Perhaps the ‘age of drones’, is the contemporary equivalent of the ‘age of railroads’ to provide the necessary catalyst for the common law.

Secondly, we have a patchy expression of rights protection, and most of which is framed in the negative — in terms of what you can’t do. This is the way that our set of four federal discrimination laws work. (This has also, in my view, driven some of the contemporary discourse and criticism about human rights being driven by ‘identity politics’. But you can only bring a complaint if you can come within a ‘protected attribute’ — on the basis of race, sex, age and disability.)

Our discrimination laws are also reflective of the context and times of their introduction, since 1975 when the first of the discrimination laws was passed in implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. The political compromises which drove these laws have been forgotten, and what was envisaged as a temporary expedient to secure passage of legislation becomes part of the permanent structure of the law, without thinking of why: why was it there, what is its purpose now, is that purpose still relevant or necessary today? Should the protections go further? Should the definitions be consistent? These are all good law reform questions.

Such concerns drove me to the work I completed at the end of last year on discrimination law reform — in the form of a position paper that we released on International Human Rights Day, 10 December, last year, including 38 recommendations for reform.

The third part of my journey was the realisation of the effectiveness of the complaint-handling jurisdiction of the Commission, which it has had since the very first days.

To give you an idea of the complaint-handling jurisdiction, the Commission is contacted by, on average, in pre-COVID times, 15,000 individuals and businesses a year seeking information about rights and obligations under federal discrimination laws. They are assisted or referred, and in some instances proceed to lodge complaints. About 2,000 individuals each year pursue the Commission’s formal complaints process — one that is based on alternative dispute resolution. Only a tiny number of the unlawful discrimination complaints ever end up in court — on average 2–4%; and most participants, both those who complain and those who are complained against, are very satisfied with the professionalism of the process and its outcomes.

If we look at the number of complaints the Commission received and conciliated over the 20 years to 2018, the numbers represent successful alternative dispute resolution through conciliation for more than 30,000 people and organisations.^[9] The process can also achieve many positive systemic outcomes through the conciliation process that is the heart and soul of the complaints-handling processes, and the principal vehicle of operation of discrimination laws.^[10]

Moreover, analysis of the cost impact of the services provided in complaint handling by the Commission, rather than through a court process, suggests significant savings. Private costs in having matters conducted through the Commission are minimised, typically through limited involvement of lawyers and there are no costs of making a complaint. There are public costs of providing the service, but compared to the public cost of court time and private costs of legal fees in a litigation context, the difference is considerable. At one time it was estimated as being a saving of up to $200 million per annum.

Where the law can work well, and indeed much better, is where it frames the way people, and workplaces, interact. That they are respectful of difference. That decisions are made in the light of the impact they may have. This is where the discussion about making decisions through the lens of a human rights-based approach comes in. This is a focus not on litigation and courts, but upon the upstream making of decisions, and laws, that are respectful and have the least intrusion on the rights and freedoms of others. This is what human rights-based proportionality analysis is all about.

Human rights-based thinking — through a range of mechanisms — is the kind of law reform that can make a difference.

The difference of a Human Rights Act

Australia is one of the only liberal democracies in the world that does not have its own Human Rights Act at the national level. 

Such laws provide powerful framing instruments for decision-making and enable the development and embedding of what I call ‘rights-mindedness’ in policy and legislative design.

However, the absence of a Human Rights Act does not mean that we do not have a strong tradition of rights and freedoms — we do — and they go back directly to the Magna Carta of 1215, but it does mean that the rights and freedoms enshrined in the international human rights instruments are not directly enforceable in Australia, unless there are instruments like the Victorian charter. This means that rights and freedoms can be conveniently ‘distanced’, where the moment or politics pushes the issue.

Our experience with COVID-19 responses has provided in many ways the national test case for decision-making — and executive accountability. This was a topic I discussed on Monday.

The beauty of a Human Rights Act, and other measures that frontload rights-mindedness, is that they are expressed in the positive — and they are ahead of any dispute. They become the foundation of improving decision-making so that disputes can be avoided — or decisions properly challenged when necessary.

A human rights-based approach requires us to answer distinct questions when legislators seek to limit rights and freedoms: is it necessary — and public health and the right to life are good reasons for legislating restrictions of the kinds we have all experienced this year; is it proportionate to achieve its goal, being the least restrictive way to achieve it, and for the shortest time needed — eg, were curfews in Victoria really needed at night, for example; were the lockdowns required for as long as they were?

The restrictions on rights also need to be provided by law — which also means to be open to proper legislative scrutiny. In the current context one of the issues that I have drawn attention to is the use of much delegated legislation in response to the emergency situation we find ourselves in, which was part of my address on Monday.

Concluding comments

In shaping my speech tonight, in terms of ‘making rights a reality’, I think of my grandchildren.

A number of years ago, my eldest grandson, then aged seven, spotted the Magna Carta on the wall in my study — a lovely facsimile produced by the Rule of Law Institute in 2015 to mark the 800th anniversary of the sealing of that landmark document — and said, ‘Grandma, you have the Magna Carta on your wall!’. How did he know about it? Through ‘Horrible Histories’ on television. It was a story of King John being nasty — exceeding power without accountability to parliament. But how does this lead to a conversation about rights, in Australia today? It is hardly the UDHR that young Michael Kirby took home.

The Magna Carta is not what you might describe as a highly accessible document, in the medieval Latin of the early thirteenth century. It is iconic, perhaps ‘the vibe’ of our understanding of rights, but over breakfast with your grandchildren?

On access to justice, how about this:

Nulli vendemus, nulli negabimus, aut differemus rectum aut justiciam!

(To no one will we sell, to no one will we refuse or delay, right or justice)

Human rights-based approaches give us a legal grammar for approaching complex balancing issues where rights are engaged. A greater embedding of our promises to the world in Australian law would provide the pathway to do so.

On Human Rights Day 2022, that is my wish for the nation.

Endnotes

^[1]     ‘Outrage’: <https://7news.com.au/politics/outrage-over-revelation-scott-morrison-secretly-swore-himself-into-three-ministries-c-7881165>; ‘Shock’: <https://www.news.com.au/national/politics/scott-morrison-shocked-minister-by-secretly-swearing-himself-into-cabinet-portfolio/news-story/ac7505f1648a335ccd01f88faf881086>. On 22 August 2022, the Solicitor-General presented his opinion that, while lawful, the PM’s action ‘was inconsistent with the conventions and practices that form an essential part of the system of responsible government prescribed by Ch II of the Constitution’: In the Matter of the Validity of the Appointment of Mr Morrison to Administer the Department of Industry, Science, Energy and Resources, SG 12 of 2022 (22 August 2022) 4. There was also an inquiry by the Hon Virginia Bell AC: https://www.ministriesinquiry.gov.au/system/files/2022-11/ministries-inquiry-report.pdf.

^[2]   Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).

^[3] Apart from the Second Optional Protocol to the ICCPR on the abolition of the death penalty which I am sure would have been supported by both sides of politics, it is an equal split for the remaining 20 signing and ratification moments.

^[4]  R French, ‘Protecting Human Rights Without a Bill of Rights’, John Marshall Law School, Chicago, 26 January 2010, 7. The speech can be found at http://www.hcourt.gov.au/publications/speeches/current/speeches-by-chief-justice-french-ac.

^[5] Jeffrey Goldsworthy, ‘Constitutional Implications Revisited’ (2011) 30(1) University of Queensland Law Journal 9, 25.

^[6] Australian Capital Television v Commonwealth (1992) 177 CLR 106, [23], Dawson J.

^[7] See, eg, J L Hiebert, ‘Parliamentary Bills of Rights: An Alternative Model?’ (2006) 69 Modern Law Review 7; S Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49(4) American Journal of Comparative Law 707, 710.

^[8] Wikipedia gives a simple account: https://en.wikipedia.org/wiki/Donoghue_v_Stevenson.

^[9]  Looking at Annual Reports from July 1998 to July 2018.

^[10] See my article on this topic, ‘”Seeking equal dignity without discrimination”: The Australian Human Rights Commission and the handling of complaints’, (2019) 93 ALJ 571.