Conference Conversations is a 3-part blog series based on papers from key speakers at the Castan Centre Human Rights Law Conference 2021, which took place on Friday 23 July this year. The final blog in this series is based on a paper presented by the author, Emeritus Professor Rosalind Croucher AM, in session three of the conference on ‘Charters of Human Rights: the Victorian Experience and the National Potential’.

Mapping an agenda on promoting, protecting and fulfilling human rights in Australia

By Emeritus Professor Rosalind Croucher AM, President, Australian Human Rights Commission

Everyone’s talking about rights …

Have you noticed over this past year and a half that there’s been a lot of talk about human rights? There has been anger and resistance to the restrictions to our rights and freedoms as Australia deals with the COVID-19 pandemic, and there has been passionate defence of the need for such restrictions to fully protect the human rights of the entire community. 

I think this has been a really good thing, speaking to a heightened ‘rights consciousness’ in the face of COVID-19 restrictions.  

In some way or another, each and every one of us has encountered restrictions—on our freedom of movement, the right to peaceful protest, on our ability to spend time with our family and friends, to celebrate marriages, memorialise our dearly departed, in recording our every movement in the community and providing personal information for the purpose of contact tracing. 

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. Trusting their governments. But some have not. Some have acted through a sense of invulnerability, ignorance or simple stupidity. Others have spoken about their rights. Some have even invoked the Universal Declaration of Human Rights, as did the protester at Bunnings last year, or other international human rights instruments in their refusal to follow public health directives. 

At the Castan Centre two years ago I spoke about the need to reimagine our system of protections of human rights and freedoms in Australia, asking what kind of Australia do we want to live in? Our experience with COVID 19 responses has provided the national test case and setting for looking at answers.

Government measures in the interests of protecting the health of the entire community have provided a range of conversations about our rights. 

In part this is a conversation about public understanding of rights, and it is part of a much wider discussion—about the legal architecture, or grammar, for protecting rights and freedoms in Australia.  Our experience over this year and a half, of responding to a pandemic, has brought the contours of this conversation into stark relief.

Australia’s response to the pandemic has involved Parliaments nationwide transferring extraordinarily wide powers to executive governments and agencies, with significant impacts on individual rights and freedoms.¹ Emergency times required emergency measures.

Different layers of scrutiny have applied, depending on whether measures are legislated; whether they are in the form of ‘disallowable’ instruments; or whether, as has been the case for a number of measures, they are introduced through instruments that are not disallowable or reviewable, and which have not included human rights compatibility analysis. 

Some of these measures have been hugely controversial: like curfews and criminal sanctions for Australian citizens seeking to return to their homeland from overseas.

In December 2020, the Senate Standing Committee for the Scrutiny of Delegated Legislation² released an interim report in its inquiry into the exemption of delegated legislation from parliamentary oversight, using delegated legislation made in response to COVID-19 as a case study to ‘shine a light on the deeper, systemic issues which inhibit Parliament from effectively overseeing delegated legislation at all times, not just during emergencies’.³ The Committee noted that, in 2019, 20% of the 1,675 laws made by the executive were exempt from disallowance and that

The significant volume of delegated legislation made by the executive, and the frequent exemption of this delegated legislation from parliamentary oversight, pose serious challenges to Parliament’s constitutionally recognised law-making role.⁴

The checks and balances that ordinarily exist are integral to our democracy.

The complexity of our federal system also makes it difficult to ensure appropriate scrutiny of these measures. The National Cabinet is not accountable in the same way as the federal, state and territory cabinets are, which ‘complicates the way responsible government functions in practice’.⁵

We need to embed a human rights scrutiny process better into all emergency responses, to ensure that any intrusion on our rights is always fully justified, and the debate is had at the time the restrictions are considered—not afterwards.

For the most part, governments have openly justified their decisions. The Premiers and first ministers have maintained a regimen of press conferences, often on a daily basis, that have assisted in the acceptance of the limits to rights and freedoms that have been part of the emergency response.

But we need to ensure that ordinary accountability measures resume ‘as quickly as possible’.⁶ To maintain public trust and ensuring compliance with restrictions. To provide a safeguard that, when we plan for recovery from this crisis, no-one gets left behind. Embedding human rights thinking more broadly in decision-making, and the accountability measures that express it, will assist in ensuring the maintenance of trust in our governments and our parliaments, and those who are delegated to act on our behalf, especially in times of emergency, a trust that has been the foundation of our democratic structure since 1688.

There are new expectations from the community generally about the dialogue around human rights and justification for limitations, more public discussion and explanation of the consideration of what is the least restrictive approach that can protect the community; and a broad consensus about the need to advance and protect the rights of the community as a major focus of what government does. 

This creates the momentum for a ‘new normal’ in the post-COVID world. 

A federal Human Rights Act or Charter is a key piece of architecture that can ensure a ‘dialogue model’ between the government of the day, as well as the Parliament, the courts and the community.

In conducting the national conversation project, the Commission has been looking to ways to fully integrate human rights into our national systems of law, policy and programs. Not as an afterthought but as a deliberative tool to aid better government decisions.

Our national conversation project has been framed in three parts: reforming discrimination laws; positive framing of human rights, including a federal Human Rights Act; and accountability measures.

Engaging with this issue again as part of the human rights architecture is part of our conversation. It is also a missing piece in the architectural framework of the Commission.

The framing of rights in Australia

Our Constitution expressly speaks about some rights, but the ‘rights’ questions in the Australian constitutional context are framed through the lens of limitations on legislative power—and largely through arguing about the implications of such limitations. They are not about personal rights.⁷

Contrast the ‘Bills of Rights’ approach as in the US, with its constitutionally entrenched rights and freedoms.⁸ Not driven by wars of independence from other nations, our Constitution was designed around the concerns of its time: foreign affairs, immigration, defence, trade and commerce, and industrial relations—as well as about ‘colonising activities of France and Germany in the region’. We saw ourselves as ‘essentially British’, as the Hon Robert French AC remarked, and the rights ‘most intensely debated’ were those ‘of the individual colonies as proposed states, vis a vis, the proposed federal parliament’.⁹ It was, in essence, a deal among the States.

While the US approach has given strong protections to rights and freedoms, it is an approach that has led to a politicisation of appointments to the US Supreme Court—one, if I might say, that should not be emulated in our own constitutional context. I observe in contrast that the model of statutory rights protection in Commonwealth countries is a different one, which retains and emphasises parliamentary supremacy—and the clear separation of powers between the courts and the parliament.  

The language of ‘human rights’ and international law

It has been remarkable I think that people have been invoking human rights in the context of COVID responses. The Bunnings protester strongly invoked the Universal Declaration of Human Rights (UDHR). This landmark document, adopted by the UN General Assembly on 10 December 1948, was one of the first decisions of the United Nations. Australia’s own ‘Doc’ Evatt was in the Chair as President of the General Assembly on that significant occasion.

It was a moment that was also embraced and marked across Australia. Michael Kirby remembers clearly the UDHR being given to every schoolchild in Australia, on that flimsy aerogramme paper that some of you may remember. 

Australia was a founding signatory to each of the other major first human rights instruments—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, as well as to the Charter of the United Nations itself. Overall, we have signed up to seven major treaties and a number of associated protocols.¹⁰ I note in this respect that if you look at the treaties Australia has committed to and their ratification, it is an equal split of Coalition and Labor support. It is neither a ‘Labor’ nor a ‘Coalition’ project.

The UDHR was an aspirational document, without conferring rights as such, but the other treaties do, and governments commit to them in signing and ratifying them. 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—no matter how loudly protesters may invoke them. 

The legislative framework of rights we got

While Australia has not ‘domesticated’ these international commitments, we did get anti-discrimination laws. On this I should note that one of the big pieces in our national conversation project has been to look at these laws.  We will shortly release our final position paper on this subject, framed around four outcome pillars: building a preventative culture; modernising the regulatory framework; enhancing access to justice; and improving the practical operation of laws.

But looking at rights and freedoms more generally, the central piece—direct implementation in a Human Rights Act—never happened, despite repeated and current pressure to do so.^.

When the Commission was put on a permanent foundation in 1986, as HREOC, after its predecessor had completed its five years under the leadership of Dame Roma Mitchell, 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. The past President of the Law Council of Australia, Pauline Wright, in her Press Club address, called for an Australian Bill of Rights, joining many voices to do so, amplifying the conversation, to do at the federal level what the ACT, Victoria and Queensland have done in relation to State and Territory decision making and accountability. 

Following Brennan’s report we got the Parliamentary Joint Committee on Human Rights, but we did not get a Human Rights Act.

While the entire Commonwealth of Nations has moved forward by introducing comprehensive human rights protections in legislation, Australia stands alone in the Commonwealth for not having introduced such protection, at least at the Commonwealth level. 

From the perspective of the Commission’s jurisdiction, it is still unfinished legal architecture. To continue along the allegorical lines, we are like a doughnut— with a hole in the middle.

The functions under the ICCPR (and other treaties) for Australia are there, but essentially invisible to people like the Bunnings protester. Even without a formal enactment of the covenant as a Human Rights Act or Charter, people can bring a complaint on the basis of the ICCPR rights to us at the Commission. Our functions, since 1981, when the Commission was first established under Dame Roma Mitchell at the helm, have included a complaints mechanism. And ever since 1981 the Commission has been handling human rights complaints based on the instruments that are scheduled to our Act.¹²

So, for example, we have a particular and growing set of complaints invoking the right to return to the country and for children to enter or leave Australia for the purpose of family reunification.¹³ These are complaints that do not sit under the category of ‘unlawful discrimination’ in the four anti-discrimination laws, but in what we describe as our ‘human rights’ jurisdiction that links to the treaties. 

Complaints under our Act have increased 500% with COVID-19—masks, travel caps, travel bans, family reunion, people with disability and COVID restrictions, and vaccinations. Our overall complaint caseload has also increased nearly 100% over the past year.

This human rights jurisdiction is important, but it is limited, and essentially invisible. The process itself, however, may have impact for individuals through quiet diplomacy. But if the process does not lead to a successful result, there is no access to judicial consideration, nor to any enforceable remedies.

Moreover, its central weakness is that it is a jurisdiction based on international treaties that are scheduled to our Act. It is not about direct obligations under Australian law. A similar weakness affects the operation of the Parliamentary Joint Committee on Human Rights. In both cases the weakness is stifling the effectiveness of the processes. 

The beauty of a Human Rights Act, and other measures that frontload rightsmindedness, is that they are expressed in the positive: affirming rights and freedoms—not just implying them—and giving a clear anchor for decision making. It frontloads human rights thinking. It is also Australian legislation. It is parsed in the vernacular.

This is the focus of the other major part of our national conversation project: advancing the case for a Human Rights Act and other complementary reforms.

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

It was not one specific Damascene moment, but a growing realisation, in three parts. 

Part one—while the common law strongly embeds the idea of rights, the common law has its limits. 

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. 

Part two—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. They are framed in terms of what you can’t and, like the common law, they rely on a dispute before offering a solution.

This is not to say that our discrimination laws are not important. They directly reflect international commitments, being domestic implementations of them, and they can 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.¹⁴ 

Part three—was the realisation of the effectiveness of the complaint-handling jurisdiction of the Commission, when it is dealing with claims of unlawfulness under Australian law. This is a jurisdiction the Commission has had since the very first days under the Racial Discrimination Act of 1975. 

Complaints usually start with just a phone call or email—some form of contact— by, on average, 15,000 people a year, individuals who consider that they have been badly done by in one way or another, and businesses just trying to understand their obligations. They are assisted or referred. About 2,000 people pursue the Commission’s formal complaints process—one that is based on conciliation. Only a tiny number of these 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.¹⁵

Compare the situation now in relation to the implied freedom of political communication in the Constitution—this is entirely played out in High Court litigation for the most part. In contrast, only a tiny percentage of complaints matters handled by the Commission get anywhere near a Court.

The kinds of objections that lawyers may have to the imprecision of rights language, when framed as laws, need to be set in a context in which most arguments about rights happen not in a judicial environment at all. It is also about seeing the experience of those common law jurisdictions that have made the leap into the legislative model, and that the world has not fallen in as a result.

The essential idea that a Human Rights Act captures is a positive framing of rights. 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. It provides the foundation for shaping human rights-based decision-making and for shifting towards a culture of human rights thinking.

We don’t have a sufficient level of proficiency, or fluency, to converse in human rights terms when discussing issues of major concern to the community. 

This year and a half 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. 

Human rights approaches provide the parsing for the solution. A human rightsbased approach gives us the grammar we need─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. It provides the way for an Australian conversation about rights.

A federal framing

When I was involved in a panel that was looking at the protection of religious freedom in Australia over the summer of 2017–18, I was struck by the fact that both of the broad sides of the argument saw an answer in having a Human Rights Act as part of the commonwealth 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 will play, are all key questions, for example. 

The purpose needs to be about changing the culture of decision-making and embedding transparent, human rights-based decisions as part of public culture.

For me the outcome needs to be that decisions are made through a human rights lens.  It is the upstream aspect that is so crucial to change.

The focus has often been on the downstream—in courts—because it is there that the tests are demonstrated in the public gaze. This has prompted jibes like ‘lawyers’ picnic’. Academic scrutiny—vindication or condemnation—follows.

How do we shift the decisions themselves?

Of course, education from the basis of a Human Rights Act is a solid foundation, as has been demonstrated well in Victoria.

We are in the middle of consultations on what federal initiatives can be taken.

We are looking at the rights and freedoms to be in the list. We want to give greater prominence to rights to participation and to procedural fairness. We are looking to address the limitations in the existing state and territory Human Rights Acts, by ensuring a direct cause of action—not requiring people to tie themselves in knots to bring claims through so-called ‘piggy-backing’ off other claims. 

We are navigating all the constitutional issues—most notably the High Court’s Momcilovic decision and understanding how far judicial power stretches—and we are having wonderful, probing, engaged conversations. Not so long ago we actually had these conversations ‘in 3D’, in Melbourne. 

We know that the political realities are as they are, but when we complete our work we will have three position papers, compiled as a report, providing our views as the national human rights institution as a roadmap to reform in protecting human rights in Australia – both aspirational and practical – with different horizons, short, medium and long-term.

We are framing our work in terms of our view, as the National Human Rights Institution, of what the reform agenda needs to be to respect, protect and fulfil human rights in Australia in the future.

Madeleine Albright was asked whether she was an optimist or a pessimist. Her answer, ‘I’m an optimist who worries a lot’. So in that vein, I will finish with optimism. 

When I launched this project I referenced the last stanza of a poem by Indigenous poet, Oodgeroo Noonuccal, ‘A Song of Hope’. 

To our fathers’ fathers

The pain, the sorrow;

To our children’s children The glad tomorrow.

Let’s end on that note.

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References

1. Sarah Moulds, ‘Scrutinising COVID-19 laws: An early glimpse into the scrutiny work of federal parliamentary committees’ (2020) 45(3) Alternative Law Journal 180, 180–181.
2. The Committee was established in 1932.
3. Senate Standing Committee for the Scrutiny of Delegated Legislation released an interim report in its inquiry into the exemption of delegated legislation from parliamentary oversight, 7 December 2020, xiii.
4. Ibid.
5. Janina Boughey, ‘Executive power in emergencies: Where is the accountability?’ (2020) 45(3) Alternative Law Journal 168, 169.
6. Ibid, 174.
7. McCloy v New South Wales [2015] HCA 34 [30]. See also Unions NSW v New South Wales (2013) 252 CLR 530 at 554 [36]. 
8. 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.
9. R French, ‘Protecting Human Rights Without a Bill of Rights’, John Marshall Law School, Chicago, 26 January 2010, 7.
10. The International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD).
11. Most notably, however, these instruments do not include the ICESCR.
12. For individuals alone—Art 12 ICCPR; for family groups—Art 12,17 and 23 of ICCPR; and family groups with children—all of the above plus Arts 3, 8, and 10 of the CRC.
13. See my article on this topic, ‘”Seeking equal dignity without discrimination”: The Australian Human Rights Commission and the handling of complaints’, (2019) 93 Australian Law Journal 571.
14. For example, if we look at the number of complaints the Commission has 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: looking at Annual Reports from July 1998 to July 2018.

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Emeritus Professor Rosalind Croucher AM is President of the Australian Human Rights Commission. She was appointed in July 2017, after seven and a half years as President of the Australian Law Reform Commission.

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This post was originally published on Castan Centre for Human Rights Law.