Inquiry into Australia's Human Rights Framework

REPORT - May 2024

List of recommendations

Recommendation 1

9.11The committee recommends that the government re-establish and significantly improve Australia’s Human Rights Framework, which should include:

comprehensive and effective protection of human rights in legislation, through the establishment of a Human Rights Act;

a significant and ongoing commitment to national human rights education;

requirements for public servants to fully consider human rights in the development of legislation and policies;

enhancements to human rights parliamentary scrutiny;

enhancements to the role of the Australian Human Rights Commission;

review of Australia’s legislation, policies and practices for compliance with human rights; and

measures to monitor progress on human rights.

Recommendation 2

9.42The committee recommends that the government introduce legislation to establish a Human Rights Act. The committee considers the bill should broadly reflect the model proposed by the Australian Human Rights Commission, with the following modifications and considerations (the committee has prepared an example Human Rights Bill, see Appendix 5, in order to promote understanding of this proposed model):

ensure the drafting of all rights and freedoms:

-is consistent with international human rights law (except with respect to the principle of progressive realisation in relation to economic, social and cultural rights). This should include ensuring rights, such as the right to freedom of religion and the prohibition of torture or cruel, inhuman or degrading treatment or punishment, are drafted consistently with the provisions of the International Covenant on Civil and Political Rights;

-includes legislative notes where relevant to indicate if more specific limitation criteria apply under international human rights law to those rights (for example, the right to freedom of religion);

-captures the immediately realisable aspects of economic, social and cultural rights, including obligations to ensure people enjoy rights without discrimination; satisfy certain minimum aspects of these rights; and not take backwards steps (or ‘retrogressive measures’) with respect to these rights;

-captures the right of aliens not to be expelled without due process; the prohibition against advocacy of national, racial or religious hatred; and the right of all persons to take part in cultural life and to enjoy the benefits of scientific progress and its applications;

-includes, where appropriate, notes referring to the elaboration of these rights in other United Nations (UN) treaties and the United Nations Declaration on the Rights of Indigenous Peoples, and is accompanied by detailed guidance materials to assist public authorities in interpreting and applying the law;

consult with Aboriginal and Torres Strait Islander peoples in relation to the framing of Indigenous peoples’ right to culture to ensure it adequately captures all applicable rights under international human rights law;

further consideration be given to the drafting of the right to a healthy environment, including consultation with Aboriginal and Torres Strait Islander peoples on how best to recognise the relationship between the right to a healthy environment and the rights to culture, health and self-determination for Aboriginal and Torres Strait Islander peoples;

allow cases to be brought directly to a federal court, without the need for conciliation, when conciliation is not appropriate;

specific provision should be made to protect individuals from adverse costs orders when bringing action against public authorities under a HRA, in line with the government’s proposed equal access cost protection provisions for federal anti-discrimination claims (see Australian Human Rights Commission Amendment (Costs Protection) Bill 2023); and

the first review of the Act should specifically be required to consider whether:

-progressive realisation principles should be incorporated; and

-additional rights relating to specific groups, such as Aboriginal and Torres Strait Islander people, people with disability, children, older persons and victim-survivors of crime, should be included.

Recommendation 3

9.43The committee recommends the government seek legal advice as to:

whether the collective right to self-determination could be recognised as a stand-alone right in a Human Rights Act (HRA);

whether requiring the Attorney-General to monitor court cases involving a HRA and reporting to Parliament would raise constitutional issues;

the appropriateness of including compliance with duties under a HRA as part of a judicial review claim;

whether including courts in the definition of public authorities would raise constitutional issues; and

whether there is a constitutionally sound way of reintroducing an intermediate adjudicative process that could determine complaints under the proposed HRA (a process sitting between conciliation by the Australian Human Rights Commission and litigation at the federal courts).

Recommendation 4

9.44The committee recommends the government consult with Aboriginal and Torres Strait Islander people, people with disability, children’s groups, civil society and other experts on how the proposed participation duty and equal access to justice duty should operate, including whether it adequately captures the principle of free, prior and informed consent. Following this, the committee recommends the government develop detailed guidance material to assist public authorities to understand their specific obligations under these duties.

Recommendation 5

9.50The committee recommends that the government commit to:

significant and ongoing funding of human rights education for the community, including in primary and secondary schools; and

appropriately funding the Australian Human Rights Commission and representative non-government organisations to develop educational programs and resources.

Recommendation 6

9.51The committee recommends that the Attorney-General’s Department republish on its website the 2009 National Human Rights Consultation report, associated submissions and commissioned research to operate as an educational resource, reflecting the large body of work done in reviewing the state of human rights in Australia.

Recommendation 7

9.54The committee recommends that the government commit to significant and sustained funding to ensure greater respect for individual rights and freedoms, in particular by ensuring:

the Australian Human Rights Commission is effectively and sustainably funded to perform its community educative role, help lead cultural change within public authorities to better respect human rights, and conciliate human rights complaints;

departments and agencies are appropriately resourced to develop internal human rights understanding and the Human Rights Office within the Attorney-General’s Department is adequately resourced to establish a centre of expertise to provide whole-of-government human rights advice;

sufficient resources and expertise are provided to support the work of the Parliamentary Joint Committee on Human Rights; and

non-government organisations, including those providing legal services, are sufficiently funded to allow them to advance human rights protection.

Recommendation 8

9.59The committee recommends that the government (in consultation with the Australian Human Rights Commission) provide ongoing training and resources for public authorities, including;

making basic human rights training mandatory for all Australian Public Service employees (including the Senior Executive Service);

providing specific and tailored ongoing human rights training and guidance material to all public sector staff involved in:

-delivering services to the community;

-developing policy in areas that engage human rights; and

-developing legislation;

making human rights training available to all parliamentarians, including ministers, and their staff; and

providing tailored human rights guidance material to those private entities that perform functions of a public nature (for example, aged care and National Disability Insurance Scheme providers).

Recommendation 9

9.60The committee recommends the government update the Australian Public Service (APS) Code of Conduct and Values to require APS employees to respect and promote human rights by making decisions and providing advice consistent with human rights, and implementing, promoting and supporting human rights.

Recommendation 10

9.63The committee recommends that the Secretaries Board establish a standing senior leadership group or sub-committee comprising senior leaders of all departments and a representative of the Australian Human Rights Commission to regularly:

consider the human rights training needs of public servants;

consider reports of the Parliamentary Joint Committee on Human Rights and responses to those reports;

establish senior leaders as Human Rights Act champions;

discuss emerging human rights issues and get updates on any complaints or cases taken under a Human Rights Act; and

get updates on comments or decisions involving Australia by United Nations human rights treaty bodies and on Australia’s Universal Periodic Review process.

Recommendation 11

9.72The committee recommends, in order to embed requirements for public servants to consider people’s rights and freedoms when developing government policy and legislation, that the government:

set up specialised human rights units in each government department to provide advice on the applicability of human rights within each portfolio;

establish a Human Rights Office in the Attorney-General’s Department (AGD) with staff with human rights law expertise;

update policy development guidelines to require policy makers to consider the potential impact of each decision on human rights and the need to consult with potentially affected groups, particularly those with relevant lived experience;

develop tailored human rights impact assessment tools or checklists to guide decision makers in determining whether human rights are engaged by the proposed policy or legislation;

amend budget documentation to include an assessment of the human rights compatibility of the budget measures in the statements of compatibility for the annual appropriations bills;

update the Legislation Handbook and the Legislative Instrument Handbook to alert public servants to the need to consider human rights when developing legislation, and the need to involve their human rights unit and the Human Rights Office early in the development of legislation;

require the Human Rights Office to provide advice on legislation and policies at the early stage of development, including;

-to be provided with drafting instructions and early drafts of all bills to provide advice to instructing officers and the Office of Parliamentary Counsel (OPC) on how the proposed legislation can better protect human rights;

-to review all statements of compatibility with human rights involving bills;

require OPC to review their drafting practices, drafting guidance materials and drafting directions in line with a reformed human rights framework.

Recommendation 12

9.80The committee recommends that the House of Representatives and Senate amend their standing orders to provide that:

a member of the Parliamentary Joint Committee on Human Rights may move a motion for the adoption of an interim report setting out the bills the committee considers requires its detailed consideration and the day fixed for the committee to report on each bill;

any member of the House or Senate may seek to amend such a motion, including the date by which the committee must report on a bill; and

where the motion is agreed, those bills stated as requiring the committee’s detailed consideration may not proceed after the second reading until the day after the committee reports (with no restriction on the passage of bills that the committee indicates it does not seek to consider in detail).

Recommendation 13

9.85The committee recommends that the government introduce amendments to the Human Rights (Parliamentary Scrutiny) Act 2011 to:

expand the functions of the committee to allow the committee to inquire into any matter relating to human rights (other than individual cases) on its own initiative (without requiring the Attorney-General’s referral);

if a Human Rights Act is introduced in accordance with recommendation2, amend the definition of ‘human rights’ to refer to the rights and freedoms recognised in that Act;

if a Human Rights Act is not introduced in accordance with recommendation 2, amend the definition of ‘human rights’ to include the United Nations Declaration on the Rights of Indigenous Peoples and the Refugees Convention; and

empower the committee to review the results of individual communications against Australia from United Nations bodies, and Concluding Observations from the United Nations about Australia, from time to time and report on the adequacy of the Australian Government’s response to these.

Recommendation 14

9.89The committee recommends that the government introduce amendments to the Human Rights (Parliamentary Scrutiny) Act 2011 to:

require the rule-maker in relation to all legislative instruments (not only disallowable legislative instruments) to cause a statement of compatibility to be prepared in respect of that instrument;

require the statement of compatibility to explain how the bill or legislative instrument is compatible with human rights and if it is incompatible with rights, the nature and extent of the incompatibility; and

require a statement of compatibility to contain a description of the nature of any consultation undertaken on the bill (including by reference to the participation duty under the proposed Human Rights Act) and if no consultation took place, explain why.

Recommendation 15

9.94The committee recommends the government consider expanding the role of the Australian Human Rights Commission to enable, or better enable, the Commission to:

conduct own-motion inquiries into systemic human rights concerns;

monitor, and report on, compliance by public authorities with a Human Rights Act (HRA);

inquire into, investigate, and report on, any act or practice of a public authority that may be contrary to a HRA;

intervene, with the court’s leave, in court proceedings involving the interpretation or application of a HRA; and

where the AHRC has identified systemic human rights concerns, commence proceedings to enforce compliance with a HRA if other methods have failed.

Recommendation 16

9.99The committee recommends that the government review all existing primary and delegated legislation for compatibility with human rights and bring forward any necessary amendments to legislation identified as raised human rights concerns, noting that such reviews:

could prioritise reviewing legislation that this committee has reported on as raising human rights concerns or that courts have found to be incompatible with a Human Rights Act;

should be embedded within government processes, so that when existing Acts are being substantively amended, or legislative instruments subject to sunsetting are being remade, a review of their compatibility with human rights must be undertaken (if not already reviewed); and

should be undertaken in good faith with a view to maximising the realisation of human rights in practice (rather than considering whether the legislation is arguably compatible with rights).

Recommendation 17

9.104The committee recommends that the government commits to monitoring and improving Australia’s progress on human rights, particularly by reference to the Australian Human Rights Commission’s Free & Equal final report, including:

developing a national human rights indicator index to measure progress on human rights over time;

requiring each department and agency to develop human rights action plans detailing how they will respect rights within their portfolio, and make annual reports on compliance with their plan;

requiring the Attorney-General to make an annual statement to Parliament identifying areas of progress on human rights and areas of continued focus;

establishing a publicly available database setting out all findings and recommendations of United Nations human rights treaty bodies about Australia, and individual communications involving Australia, and any Australian government responses;

ensuring regular forums for dialogue with the non-governmental (NGO) sector on human rights and supporting the independent participation of NGOs in the UN human rights processes; and

reviewing, with a view to withdrawing, all existing reservations and interpretive declarations under UN human rights treaties.