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Whither human rights and freedoms protections in Australia?

Rights and Freedoms

Whither Human Rights and Freedoms Protections in Australia? Rights and Freedoms in the Age of COVID-19

Samuel Griffith Society 32nd Conference 29–30 April 2022

Emeritus Professor Rosalind Croucher AM FAAL FACLM (Hon) FIAETL FRSA TEP President, Australian Human Rights Commission

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In January 2020, I reached out to the Society regarding the then upcoming conference that was to be held in August 2020. 

My father, the Hon Dr Frank McGrath AM OBE, has been keenly involved in the Society’s conferences over the years (as was my late mother, Dr Amy McGrath OAM). I had planned to bring father to the Sydney conference and considered that this would provide a happy conjunction with my interest in offering myself as a speaker. He was 98 at the time.

Father celebrated his 100th birthday on 30 December. Yesterday we marked his passing at St James’ Church, the church traditionally associated with the legal profession and where the opening of law term services are still held, at least the Anglican ones, as the repertoire of those has expanded with the diversity of the bench and profession itself and the faiths reflected in the diversity. I was looking forward to discussing with him my thoughts of my presentation today, as I have many of my speeches and articles in recent years. Sadly, we could not.

When I wrote to the Society, I said that I would be interested in contributing in any that might be considered appropriate.  One thought I suggested was about the protection of human rights in a federal system with a constitution that was born not out of revolution but out of a compact with the states. 

Since that email, COVID-19 happened. Issues of rights, incursions upon rights and freedoms, and democratic accountability for executive action have all been thrown up in the air.

I have also thought about what I could contribute to this lively and engaged group from the perspective of my current role as President of the Australian Human Rights Commission.

The first part of my title, ‘Whither Human Rights and Freedoms Protections in Australia?’ is an echo of a conference I attended many years ago, in which the late the Hon Roddy Meagher AO QC was a keynote speaker. The title of that conference was ‘Whither Equity?’ I remembered the conference and the title well. I liked the homophonic pun of whither/wither with the question mark. I also remembered the deference paid to then Justice Meagher, with speakers dropping ‘behoves’ in like confetti, in linguistic deference to the very articulate, eloquent and somewhat old-fashioned judge. (I taught Equity with him at Sydney University for a number of years. I found him interesting.)

My understanding of my role as President

Coming into this role, after 10 years at the Australian Law Reform Commission, I had many questions. I sought to answer these in a thematic way through the vehicle of speeches and articles over the years since.[1] I am now heading to the fifth anniversary of my appointment on 30 July.

I also had a particular view about my role. All of the complaint handling functions of the Commission are vested in me — not in any of the other Commissioners for over twenty years. And while we do not make any determinations in matters that come to us as complaints, I see my role as quasi-judicial. The process of handling complaints is a well-regarded example of alternative dispute resolution, based on mediation, handled through delegation to experienced and qualified mediators. It has framed the way I approach my role and how I engage publicly on various issues pertaining to rights and freedoms in Australia. Which is to say that I prefer to put my thoughts in considered writing, as today, rather than through social media.

I also came into my role after a period of intense scrutiny of the Commission, and also of Commissioners.

I set as a personal goal to ensure that the Commission was not in the headlines for the wrong reasons. That the focus should be on our work and any engagement was with our work, rather than ad hominem challenges of Commissioners and, indeed, the President.

I needed to understand about us, as a national commission, and about the breadth of our mandates. I needed to understand about the complaints handling jurisdiction. I needed to look into how Australia protects rights and freedoms.

I needed to lead a national human rights institution in a federal system.

In the time I have with you today I thought I would share some of my journey through these questions, and how new questions have emerged over the past two years as well as the underscoring of the importance of the questions I had in the first place.

Everyone’s talking about rights …

As I reflect on the past two years, it is clear that the pandemic has brought a renewed national 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 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, many of those restrictions are now lifting.

Australians for the most part have been 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 have openly justified their decisions — the Premiers and first ministers 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.

Government measures in the interests of protecting the health of the entire community have provided a range of conversations about our rights. And for the most part, I welcome these discussions. 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.

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.

It was a moment that was embraced and marked across Australia. The Hon Michael Kirby AC CMG remembers clearly the UDHR being 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. We 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. Labor and the Coalition — 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 (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’, you’d be struggling.

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

The unfinished architecture

The first Human Rights Commission was established in 1981 by a conservative Government (under Malcolm Fraser as Prime Minister), after Australia had ratified the ICCPR in August the year before.[4] It had part-time commissioners, and Dame Roma Mitchell was appointed to lead it.[5] The passage of the Australian Human Rights Commission Act 1986 (Cth) marked the establishment of the present Commission, symbolically on 10 December 1986 — International Human Rights Day.

The Australian Human Rights Commission has a number of broad roles. One is a complaints handling role, both for complaints concerning human rights matters involving the covenants referred to in the Act — principally the ICCPR — and complaints of discrimination on specific grounds under the set of anti-discrimination Acts. There are also reporting functions and education functions; intervention and amicus functions; and there is growing international engagement especially through inter-governmental initiatives embraced by the Department of Foreign Affairs and Trade.

When the Commission was put on a permanent foundation, it 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 .

The functions under the ICCPR for Australia remain in a schedule to our Act, enabling complaints to be brought to the Commission. Even without a formal enactment of the covenant as a ‘Bill of Rights Act’, people can bring a complaint on the basis of the ICCPR rights to us at the Commission.

In the past two and a half years this jurisdiction has become especially important. Freedom of movement, of association, of speech, of privacy, the right to leave and to enter one’s own country — all ICCPR rights — have prompted complaints under this original jurisdiction of the Commission during the pandemic.

But these complaints are completely different from complaints that are grounded in the anti-discrimination laws, which make conduct unlawful. The complaints under the scheduled instruments begin a conversation, but in the absence of specific domestic legislation anchoring them, let alone the possibility of effective remedies, the jurisdiction is somewhat hollow.

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.

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 Commission’s jurisdiction, it is still unfinished legal architecture. We are like a doughnut — with a hole in the middle.

When I was involved in a panel that was looking at the protection of religious freedom in Australia over the summer of 2017–18 — the panel chaired by the Hon Philip Ruddock AO — I was struck by the fact that both the broad sets of protagonists saw an answer in having a Human Rights Act as part of federal protections of rights and freedoms. This was even from those who had been ardent opponents in previous times. But it also struck me that having one was not an end, in and of itself, but the beginning or the unravelling of many more questions. Whether we introduce one; what it would look like; and what role the Australian Human Rights Commission would play, are all key questions, for example.

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 along the road to Damascus

I must confess that I was a little — a lot — resistant to the idea of a Human Rights Act in Australia before I came into this role. The American experience of a constitutional Bill of Rights, and litigation about rights in the courts, so publicly played out, were somewhat discouraging.

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’.[6]

This is an entirely different approach to rights from, say, the United States, with its codification of rights in its Constitution through a series of amendments.[7] This approach has led to a politicisation of appointments to the US Supreme Court that we have all observed — an approach, if I might say, that should not be emulated in our own constitutional context.

In clear contrast, the model of statutory rights protection in Commonwealth countries retains and emphasises parliamentary supremacy.

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’.[8] 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’.[9]

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.

So, what changed my thinking? It was not one specific Damascene moment, but a growing realisation, in three parts. I began to share my thoughts on this subject in Perth when I was invited to open Law Week in May 2019. Let me also do so today.

The three parts:—

  • First, while our sense of rights is embedded in the common law, the common law has its limits.
  • Secondly, it was a realisation that the statutory expression of rights is played out in the negative, reliant on individual disputes; and what coverage there is, is patchy.
  • Thirdly, was my experience in observing, and being responsible for, the complaints-handing processes of the Commission, where I have seen how it is not about courts and litigation so much, but about what happens with that only as a last resort possibility (at least for our discrimination law complaints).

Let’s take each idea in turn

The limitations of the common law

First, the common law. Protection of serious invasions of privacy, for example, has got stuck. The common law needs a great leap forward, as it achieved in Donoghue v Stevenson in relation to negligence, 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.

The negative expression of rights

Secondly, there is the negative expression of rights.

The problem of much of our human rights protections in Australia is that they are 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 framed 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. The political compromises which drove them 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.

We set out 38 recommendations covering every aspect of our federal discrimination law system, to ensure that it offers robust protection against discrimination, provides better support for businesses and organisations to do the right thing, and is simpler to use.

(If I may venture to say this, in relation to a document of which I was the principal drafter, it makes a significant contribution to the conceptualisation and operation of our federal discrimination laws.)

It will form part of a larger report to be completed this year.

I look forward to whoever becomes the government after 21 May to progress this work.

Effectiveness of the complaint-handling processes

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 under the Racial Discrimination Act of 1975.

You may be able to refer to one or two examples that have made their way into the media — not by us, I should say, as we have confidentiality obligations and, indeed, secrecy provisions that prevent us. These examples have been made public by a handful of participants, and without our being able to provide any counter-narrative.

But those one or two examples are but drops in an ocean of effective dispute resolution. Many have outcomes beyond just the people involved.

Let me give you an illustration. It comes from a conversation with the Hon Tony Abbott AC in March 2018. I had reached out to Mr Abbott to invite him to come to the Commission — to meet our staff, and to chat about our work. After about 20 minutes of engaged conversation, he mentioned an incident involving his father. Mr and Mrs Abbott had arranged to take Mr Abbott’s father to the Opera. But, on attempting to drive Mr Abbott senior to be dropped off under the sails, they were stopped by a police officer, who would not let them in due to Vivid related road closures. Mr Abbott senior managed to walk the distance, over those uneven paving stones, proud to do so, but why should Mr Abbott junior not have been able to provide this support to his father? ‘Perhaps I should have made a discrimination complaint,’ he said to me. Indeed, I said. This was a good example of precisely the kind of matter that a body like ours, or in this case the NSW Anti-Discrimination Board, could assist in. Why should Mr Abbott senior have been discriminated against on the basis of his disability in having access to the Opera House? A conversation would have opened up with the managers of the Opera House and the NSW Police about what could be done — perhaps an apology to Mr Abbott, but more importantly a commitment to review and change their access policy to ensure that people with disability have proper access to the Opera House. It may mean that there is a dedicated means of access in such circumstances, balancing any security issues that might be involved. But it would not mean simply saying ‘no’ and forcing the outcome that it did on that occasion.

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.[10] 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.[11]

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.

The process is not the punishment. The process — in the overwhelming experience of those who have been engaged in our mediations over 40 years — is effective and positive in its outcomes.

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 positive duties and also 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.

Shaping rights-mindedness

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.

Let me give you example from the UK, which has had a Human Rights Act since 1998.[12]

On 21 July 2020, Robert had a serious fall at home and his wife Muriel called an ambulance. The ambulance arrived and Muriel was told she could not accompany Robert, ‘due to Covid rules’. Robert, who is 79 and has dementia, was in intensive care for 12 weeks. Muriel was not allowed to visit; nurses gave her daily telephone updates. On 25 October, Robert was discharged to residential care. The care home he was moved to was locked down the following morning due to a positive Covid-19 test. 

The couple had no contact in the next four months as Robert was too distressed to talk on the phone, and he was deteriorating mentally and physically. The thought that she might not get to say goodbye keeps Muriel awake at night. Muriel reached out to an advocacy organisation who advised her that, based on the severe impact this is having on Muriel and Robert’s mental and physical wellbeing, the couple’s right not to be treated in an inhuman and degrading way (Article 3, HRA) might be at risk. Restricting or risking this right is not lawful because it is an absolute human right. 

Muriel uses a template letter to raise the care home’s legal duty under the HRA. The care home then arranged for Muriel to be provided with full PPE so that she could visit Robert regularly and ensured that Muriel was vaccinated together with staff so that she can spend time with Robert as he neared the end of his life

It is instructive in showing how the Act informed important decision-making in the COVID context.

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, but it does mean that the rights and freedoms enshrined in these international human rights instruments are not directly enforceable in Australia. Which means that they 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.

With respect to lawmakers and explicitly considering the impact of laws on human rights, we went partly down that road with the introduction of the Parliamentary Joint Committee on Human Rights in 2011, and the requirement to produce ‘compatibility statements’ with human rights.[13] There are several other committees, some very longstanding, that scrutinise bills and other instruments for compatibility with rights too (in a generic sense). The processes of scrutiny of legislation in Australia are strong, as the report I led at the ALRC on Freedoms discussed, but there is also room for improvement.[14] Their weakness is that they are not grounded in obligations set out in domestic laws.

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. The become the foundation of improving decision making so that disputes can be avoided.

A statute names them; it provides an obligation to consider them and a process by which to do it — together supporting a cultural shift towards rights-mindedness, becoming part of the national psyche, not just an afterthought.

Even without a Human Rights Act, the positive framing of rights can have other expressions in building a human rights-based approach more clearly into decision making itself — for example when making decisions in the name of public health concerns that have huge social and economic ramifications across whole States. Just as it did for Muriel.

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 to achieve it — 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.

The use of legislative instruments means there is not the same level of independent scrutiny as regular legislation. Much of the scrutiny comes after the fact. There has also been the use of extraordinary measures, known generically as ‘Henry VIII’ clauses, whereby delegated instruments can change the meaning of legislation agreed by the Parliament.[15]

The checks and balances that ordinarily exist are integral to our democracy. Australians have been, and continue to be, exposed to potentially unnecessary restrictions of their rights and freedoms, because of the lack of transparency and accountability. The decisions may be justified, but how can we know without appropriate democratic scrutiny and accountability?

Concluding comments

Our current system for protecting human rights lacks a sufficient level of proficiency, or fluency, to converse in human rights terms when discussing issues of major concern to the community.

The past two years has brought this into sharp relief. People are talking about rights. People are demanding their rights. Governments are defending their incursions on people’s freedoms in terms of rights.

In asking the question, ‘Whither human rights protections in Australia?’, I think of my grandchildren.

One 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 — 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.

But even if there were direct laws about rights, it doesn’t mean that everything is a right, nor does it mean that rights are unqualified. And all human rights come with the corresponding responsibility to respect the rights of others.  

Having a greater embedding of human rights as Australian law would give us a way to help our future generations, let alone our present ones, to understand and exercise their rights and freedoms better. It would ensure that human rights and freedoms do not ‘wither’.



[1] Some examples of articles I have written in that time: ‘Righting the relic: towards effective protections for criminal record discrimination’ (2018) 48 (September) Law Society Journal 73–75; ‘“Seeking equal dignity without discrimination”—The Australian Human Rights Commission and the handling of complaints’ (2019) 93 Australian Law Journal 571–584; ‘Freedom of religion and speech in the spotlight—towards a new way of thinking‘ (2019) 58 Law Society Journal 72–75; ‘Emergency Powers Need Scrutiny: Ensuring Accountability Through COVID-19 Lockdowns and Curfews is a Human Rights Issue’ (May, 2021) Law Institute Journal 19; ‘Lockdowns, curfews and human rights—unscrambling hyperbole‘ (2021) 28(3) Australian Journal of Administrative Law 137–148.

[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] For a history of the establishment of the 1981 and 1986 Commissions, see Peter Bailey, Human Rights: Australia in an International Context (Butterworths, 1990) 117–147; and Peter Bailey, The Human Rights Enterprise in Australia (Lexis Nexis, 2009) 327–395.

[5]  Human Rights Commission Act 1981 (Cth) s 7(1), as Chairman.

[6] 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

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

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

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

[11] 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.

[12]  BIHR submission to UK HRA review

[13] Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

[14] Freedoms Report, [3.95].

[15] I wrote of my concerns about this in the Law Institute Journal in May, ‘Emergency Powers Need Scrutiny: Ensuring Accountability Through COVID-19 Lockdowns and Curfews is a Human Rights Issue’ (May, 2021) Law Institute Journal 19; and then in an article published in the Australian Journal of Administrative Law: ‘Lockdowns, curfews and human rights—unscrambling hyperbole‘ (2021) 28(3) Australian Journal of Administrative Law 137–148. Human Rights Commissioner Lorraine Finlay and I have also just written a chapter for a book on Public Health Law, entitled ‘Limiting Rights and Freedoms in the Name of Public Health: Ensuring Accountability during the COVID-19 Pandemic Response’.


rosalind croucher

Rosalind Croucher AM, President

Commission – General