Discussion paper: A model for positive human rights reform (2019)

This year, the Australian Human Rights Commission is undertaking a major project: ‘Free and Equal: An Australian conversation on human rights’ (the National Conversation). Through the National Conversation, the Commission is working to identify what principles and key elements would make up an effective system of human rights protections for 21st Century Australia. Its findings will inform a comprehensive reform agenda to modernise human rights protection for all.

Australian Governments have ratified human rights treaties on behalf of Australia, and therefore have an obligation to respect, protect and fulfil the human rights of all people in Australia. While some of our international human rights commitments have been enshrined in domestic law, many implementation gaps remain.

In our current system, governments are not always required to make decisions that uphold human rights. Political or economic justifications can easily override human rights, without being tested. There are also minimal protections in place to ensure that the government considers our human rights as part of everyday law and policy making, and takes steps to prevent breaches before they occur. There are limited avenues to seek review of government decisions or actions that violate a person’s human rights.

Often, existing legislative protections frame human rights in the negative rather than the positive. That is, the law narrowly sets out what the government or others cannot do. There is no holistic recognition of our human rights, no positive duty to consider human rights when making decisions, and no process by which to do so. There is also no guidance provided when decision-makers have to balance different human rights.

As a result, our fundamental rights and freedoms are not fully protected or realised. At times, this has led to unfair, unjust or unequal treatment without appropriate recourse or consequences.

Recent public discussions about how far government and private action should be able to limit freedom of speech, freedom of religion, the right to equality and a person’s privacy, are examples of areas where there is no legal framework to resolve complex tensions between fundamental rights and freedoms.

For example, there are very limited grounds to challenge the validity of intrusive police raids conducted on the home and offices of journalists. A right to freedom of speech and a right to privacy would help ensure that national security measures are legitimate, proportionate and limit our free press to the least restrictive degree.

Closing the fundamental gaps in our protection of human rights would enhance dignity, freedom and equality for all members of the Australian community. Reformed protections would work alongside our strong traditions of liberal democracy including the rule of law, separation of powers and free press. They would complement or bolster existing protections in federal discrimination laws, the common law and our Constitution. They would equip the community with tools to challenge government decisions that adversely affect their rights. There are a number of options that Australia has to better protect our fundamental rights and freedoms.

The strongest legal protection would be through a constitutional bill of rights. Another option, supported by the Commission, is a principled, comprehensive and enforceable federal Human Rights Act. Other possible measures include reforming existing laws, policies, decision-making frameworks and other processes, to strengthen human rights consideration and scrutiny.

This paper outlines what our current system of human rights protections looks like, how it is and isn’t effective in ensuring that government respects, protects and fulfils our human rights, why reforming the current system is critical, and options for reform. The case studies throughout show how more fair and equal outcomes can be reached when human rights are protected by law, or instances where there are currently gaps in protection. It provides a basis for members of the public, business sector, NGOs, the legal community and others to submit their views on the proposals contained in this paper, or on other ways to better protect human rights in Australia.