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Focus: Renewed human rights emphasis in Australian law and policy

3 May 2010

In brief: In response to the report on the Federal Government's National Consultation on Human Rights, the Government has released its proposed agenda on the issue, Australia's Human Rights Framework. Partner Alex Cuthbertson (view CV), Senior Associate Rachel Nicolson and Lawyer Swee Leng Harris summarise the framework's key initiatives, and their likely impact on federal legislation, policies and programs.

How does it affect you?

  • Under the Federal Government's proposed human rights agenda, all new, and some existing, federal legislation will be scrutinised for compatibility with human rights, resulting in a greater alignment of federal laws with Australia's international human rights obligations.
  • Future Bills will be accompanied by statements of compatibility with human rights, which may be used by courts as extrinsic material when interpreting the enacted legislation.
  • Current federal anti-discrimination laws are to be combined into a single Act, to reduce regulatory overlap and to make this regulatory system more 'user-friendly'.
  • Increased education about human rights, including training of the federal public sector across the board, will influence government policy and practices.
  • It is not proposed that a federal Bill of Rights be introduced, as recommended by the National Human Rights Consultation Report (the report). This means that human rights law obligations will not be streamlined at the federal level, but will remain in force across a range of laws, such as privacy, equal opportunity and workplace relations laws.

Background

The Federal Government commenced its National Consultation on Human Rights on 10 December 2008. Its stated aim was to find out 'which human rights and responsibilities should be protected and promoted in Australia, whether human rights are sufficiently protected and promoted, and how Australia could better protect and promote human rights'.1

The report prepared by the Consultation Committee, which was chaired by Father Frank Brennan AO, was released on 8 October 2009. Its key recommendations included:

  • increased human rights education;
  • introduction of a federal human rights Act or charter;
  • human rights compatibility statements for all new Bills;
  • establishment of a Joint Parliamentary Committee on Human Rights;
  • amendment of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to make human rights a relevant consideration in government decisions and in the absence of a federal human rights Act; and
  • amendment of the Acts Interpretation Act 1901 (Cth) to require courts to interpret legislation consistently with human rights where possible. 

(For a summary of the report, please see our Focus). 

The Federal Government responded to the report and its recommendations by releasing Australia's Human Rights Framework,2 announced by Attorney-General Robert McClelland on 21 April 2010. 

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Australia's Human Rights Framework

What human rights are addressed by the framework?

The framework does not provide a list of Australian human rights and responsibilities, as recommended by the report. Instead, the framework takes seven international treaties on human rights, to which Australia is a signatory, as its point of reference for human rights.3 These treaties concern:

  • civil and political rights;
  • economic, social and cultural rights;
  • racial discrimination;
  • discrimination against women;
  • rights of the child and rights of persons with disabilities. 

This is significant, as the framework introduces this large body of international law into the legislative process, Federal Government policy and practices, and into Australian public discourse on human rights protection. Notably, this is a far broader spectrum of human rights than is addressed by current state human rights-dedicated legislation; namely, the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT).

Impact on federal legislation

The framework will result in some significant human rights impacts on federal legislation.

First, it is proposed that a new Joint Parliamentary Committee on Human Rights be established, and tasked with scrutiny of existing and new legislation for compatibility with human rights. The Federal Government will also refer broader human rights inquiries, which are not focused on the legislative process or law reform, to the Joint Committee. This follows a similar model in other jurisdictions, such as the United Kingdom, where the United Kingdom Joint Parliamentary Committee on Human Rights has played an integral role in development and review of government policy, practices and law with respect to human rights. 

Second, it will be mandatory for all new legislation, regardless of its area of regulation, to be accompanied by a 'statement of compatibility' with human rights. This requirement already exists in other jurisdictions, including Victoria, the Australian Capital Territory, the United Kingdom and New Zealand. The Federal Attorney-General has stated that it is anticipated that human rights compatibility statements will be used as ancillary, or extrinsic, parliamentary material by courts when interpreting legislation that contains any ambiguity, in accordance with established principles of statutory interpretation.4 Existing laws will be reviewed for compatibility with human rights as the need arises.

Reform of federal anti-discrimination laws

The framework proposes that current federal anti-discrimination laws will be combined and 'harmonised' into a single Act and reviewed for compliance with international human rights law. The federal anti-discrimination laws to be harmonised are the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), and the Age Discrimination Act 2004 (Cth).

This proposed review and streamlining is aimed at reducing regulatory overlap and compliance burdens for individuals and businesses, and to assist regulatory enforcement, business certainty and compliance.

In combination with the potential use of statements of compatibility in statutory interpretation outlined above, this reform will mean that federal anti-discrimination laws will be drafted and interpreted with regard to international human rights law.

Impact on Federal Government policy and practices

The framework makes education about human rights a centrepiece of its initiatives. This includes education programs for the public service, proposed with a view to integrating human rights considerations into policy development and government program implementation. This can be expected to have flow-on impacts on policy-making and program delivery across all areas of Federal Government activity.

Engagement with international human rights institutions and issues

The Federal Government has reaffirmed its commitment to engagement with the international community and international institutions on human rights. This may result in international human rights policy and law having greater prominence in the Federal Government's agenda, and having continued influence on federal law and policy. 

Federal human rights Act not proposed

A key focus of the National Human Rights Consultation was the possible introduction of a human rights Act or charter for Australia, which the Consultation Committee also recommended. The Federal Government did not take up this recommendation. State human rights-dedicated legislation, such as the Charter of Human Rights and Responsibilities Act 2006 (Vic), and federal and state laws that provide various human rights protections (such as privacy laws and equal opportunity laws) will therefore remain the primary vehicles for statutory human rights protection in Australia. Entities with operations in Victoria and the Australian Capital Territory will need to remain across developments in respect of human rights charters in those jurisdictions, as discussed in our previous Focus publications of April 2009 and March 2010.

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What does the framework mean?

The Federal Attorney-General has stated that the Government is committed to 'positive and practical change' and described the framework as directed at 'systemic changes that promote awareness and respect of human rights'.5 The measures contained in the framework aim to engage the legislative and executive arms of government with human rights, and to encourage a whole-of-government focus on human rights. 

As a result, those with responsibility for the development of federal laws and policies, or delivery of federal programs or services, will be required to take into account relevant human rights in the conduct of their activities. Also, anyone who engages with the Federal Government in the course of their business or activities will need to consider how human rights may be relevant to that engagement.

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What next?

Following the framework's release, the Federal Government will develop a National Action Plan on Human Rights, in consultation with the states, territories and non-government organisations. 

The Federal Government has said that it will review the framework's operation in 2014.

Footnotes
  1. National Human Rights Consultation Committee, National Human Rights Consultation Report (2009), xiii.
  2. Australia's Human Rights Framework (2010) Attorney-General's Department, 29 April 2010.
  3. These treaties are: the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities.
  4. Attorney-General Robert McClelland, 'Address to the National Press Club of Australia – Launch of Australia's Human Rights Framework' (speech delivered at the National Press Club of Australia, Canberra, 21 April 2010).
  5. Attorney-General Robert McClelland, 'Address to the National Press Club of Australia – Launch of Australia's Human Rights Framework' (speech delivered at the National Press Club of Australia, Canberra, 21 April 2010).

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