Editor’s Note:
The Melbourne Law School is hosting Emeritus Professor Rosalind Croucher, President of the Australian Human Rights Commission and Laureate Professor Cheryl Saunders, Melbourne Law School, hosted by Professor John Tobin, to discuss the question of:
Do we really need a federal Human Rights Act and what form should it take?
The discussion will take place at the Melbourne Law School in room G08, from 1-2pm on Thursday 30 March 2023. All are welcome to attend.
Laureate Professor Cheryl Saunders, 2021; and Emeritus Professor Rosalind Croucher, 2021.
In 2008, the newly elected Rudd-Labor government commissioned the National Human Rights Consultation Report, which was completed in 2009. The report considered the human rights landscape in Australia, the areas in which rights were most under threat, and the policy and legislative solutions which might protect those who were vulnerable to the breach of their human rights.
The Report ultimately recommended that the Federal Government adopt a Human Rights Act, arguing that such legislation could ‘provide a resilient thread in the federal quilt of human rights protection’.[1] In discussing the Report, Graeme Innes AM invoked the motto which appears on the Queensland coat of arms − Audax at fidelis, meaning bold but faithful − to suggest that it was time to be courageous and insist on the legislative protection of rights in modern Australian society.[2] 14 years later, no progress has been made on enacting legislative protection of human rights at the Commonwealth level. But why is this the case? What is preventing the enactment of a federal Human Rights Act?
Sceptics of a federal Human Rights Act consistently point to a range of issues which would need to be resolved prior to legislative protection of rights at the federal level.
First is the threat which such an Act could pose to the Australian tradition of parliamentary sovereignty. It is argued that a Human Rights Act could transfer a substantial amount of power away from Parliament, and into the hands of the unelected judiciary. The question of which rights ought to be protected, and what precisely constitutes a breach of human rights, it is argued, is a question which ought to be left to our democratic, responsible and accountable Parliament, rather than the courts.
Second, it is argued that a federal Human Rights Act could involve the Commonwealth impermissibly limiting the legislative competence of the States, in breach of the Melbourne Corporation Doctrine. While Victoria and the ACT have both enacted legislation which protects human rights in their respective jurisdictions,[3] the other states and territories have either failed to consider how rights should be protected in their jurisdictions or have actively considered passing a Human Rights Act before deciding that such an Act would be too burdensome, either politically or legally.[4]
Third, some have proposed that enshrining rights into law might actually have negative outcomes for rights protection. Senator George Brandis SC, on behalf of the federal opposition in 2009, submitted that a Human Rights Act would declare ‘that those identified rights have a certain status or privilege, which other putative rights … do not enjoy’.[5] In other words, enshrining only those rights which have been deliberatively agreed upon into law might mean that progress in expanding rights claims for the most vulnerable members of our society become more difficult, not less. In doing so, only those classes of individuals who enjoy social or political power and influence would be able to see their interests protected under a federal Human Rights Act.
Overall, the arguments against the enactment of a federal Human Rights Act range in their reasonableness and persuasiveness, but it is clear that existing human rights protections have been inadequate to protect the interests of the most vulnerable members of Australian society. Australia’s standing in the international sphere is seriously undermined by the lack of human rights protections in our system of law. The International Commission of Jurists submitted to the National Human Rights Consultation Commission that ‘current democratic institutions [in Australia] do not work to protect basic human rights’.[6] Australia has been criticised by the United Nations Human Rights Committee – which oversees compliance with the International Covenant on Civil and Political Rights – for failing to enact legislation in alignment with its international obligations, and its continued and abhorrent mistreatment of asylum seekers and refugees.[7]
Would a Human Rights Act solve Australia’s poor track record of protecting the rights of the most vulnerable and marginalised members of our community? This is unclear. More work is needed to explore how such an Act could improve the Australian system of law and government, and the input of jurists and academics in the Constitutional and Human Rights spheres will be invaluable in moving the debate forward and seeing practical outcomes.
Members of the MLS community and general public are invited to attend a discussion between Emeritus Professor Rosalind Croucher, President of the Australian Human Rights Commission and Laureate Professor Cheryl Saunders, Melbourne Law School, on Thursday 30 March, which concerns this very issue. The discussion will consider whether a federal Human Rights Act is necessary, and what form such an Act could take. This will be an informative and lively discussion of an enduring and difficult area in Australian politics, and is not to be missed.
The discussion will take place at the Melbourne Law School in room G08, from 1-2pm on Thursday 30 March 2023. All are welcome to attend.
[1] National Human Rights Consultation Report, (Report, 30 September 2009) 377 (‘NHRC Report’).
[2] Graeme Innes, ‘A Human Rights Act for Australia’ (Speech, Queensland Charter Group, 6 March 2009).
[3] Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2004 (ACT).
[4] NHRC Report (n 1), xxii.
[5] Ibid 289.
[6] Ibid 266.
[7] Ibid.
Purely Dicta 