Summary: Parliamentary Joint Committee on Human Rights Inquiry into Australia’s Human Rights Framework
On 15 March 2023, Federal Attorney-General Mark Dreyfus KCMP asked the Parliamentary Joint Committee on Human Rights (PJCHR) to hold an inquiry into Australia’s human rights framework, and if it should include a legislated Human Rights Act or similar.
After receiving 338 submissions and holding 6 public hearings, the inquiry reported on 30 May 2024. Its most important recommendations were for legislating an Australian Human Rights Act.
Read the final PJCHR report here.
You can download the Human Rights Law Centre’s explainer of of the final report here, or read the full explainer below.
Introduction
On 15 March 2023, the Attorney-General referred to the PJCHR the following matters for inquiry and report:
to review the scope and effectiveness of Australia's Human Rights Framework and the National Human Rights Action Plan;
consider whether the Framework should be re-established, as well as the components of the Framework, and any improvements that should be made;
consider developments since 2010 in Australian human rights law (both at the Commonwealth and State and Territory levels) and relevant case law; and
consider any other relevant matters.
The PJCHR received 335 submissions, which are published on the PJCHR website and held six public hearings between 12 May 2023 and 20 October 2023.
On 31 May 2024, the PJCHR published its report making 17 recommendations aimed at improving Australia’s human rights framework, including a recommendation that Australia enact a legislated federal Human Rights Act (HRA).
The PJCHR report details key elements of a HRA and has attached a model HRA to the report. This explainer considers the following key elements of the PJCHR recommendation, and the model HRA:
Overview of the model
To whom will the HRA apply?
To what laws will the HRA apply?
Application of the HRA to public authorities
Limitation clause
Interpretive clause
Economic, social and cultural rights to be included in the HRA
Override declaration
Declarations of incompatibility
Enforcement mechanisms
National human rights education
Cultural change
Public sector human rights training
Right to self-determination
Right to a healthy environment
Civil and political rights
Conclusion
Overview of the model proposed
The PJCHR recommends a legislative HRA based on the "dialogue model" put forward by the Australian Human Rights Commission (AHRC) in its position paper on a HRA for Australia. This model retains parliamentary sovereignty while strengthening Australia's human rights framework by requiring:
Parliament to expressly consider human rights when making laws;
Public authorities to consider rights when making decisions and act compatibly with rights (unless Parliament has directed them to do otherwise); and
Courts to determine whether legislation is incompatible with the HRA, or if a public authority has acted incompatibly with the HRA.
Key feature of the model HRA include:
An interpretive clause requiring all Commonwealth legislation to be interpreted, so far as is reasonably possible, in a manner that is consistent with human rights.
Statements of Compatibility requiring all legislative instruments to include statement explaining how it is compatible with human rights and if it is incompatible, the nature and extent of the incompatibility, which expands the current requirement for a statement of compatibility of proposed legislation with the seven core human rights conventions Australia has signed.
Expanded role for Parliamentary Committee including recommendation to allow the PJCHR to inquire on any matters relating to human rights on its own initiative.
Imposing a Participation Duty to engage with Aboriginal or Torres Strait Islander people, people with disability, or children in decisions affecting these communities.
Imposing a Positive Duty on public authorities to consider and act in accordance with human rights.
To whom will the HRA apply?
The federal HRA will apply to all people within Australia’s geographical territory and people outside Australia’s geographical territory, but who are subject to Australia’s jurisdiction (including when they are located overseas but subject to Australia’s effective control).
To what laws will the HRA apply?
The PJCHR recommends that HRA should apply only to federal laws and that state and territory human rights laws should continue to operate unaffected by the introduction of federal HRA,5 and state and territory jurisdictions without a human rights act should be encouraged to enact one based on the federal HRA.
The concurrency provision included in the model HRA is based on section 6A of the Racial Discrimination Act 1975 (Cth) and is as follows:
This Act is not intended to exclude or limit the operation of a law of a State or Territory that furthers the objects of human rights and is capable of operating concurrently with this Act.
The PJCHR report notes that further consideration would need to be given to whether this concurrency provision is sufficient.
Application of the HRA to public authorities
The PJCHR recommends that the federal HRA should apply to public authorities with powers or functions under Commonwealth laws including organisations such as private businesses, non-government organisations and contractors where they are performing public functions, and state public authorities when exercising Commonwealth functions.7
The model HRA included in the report provides the following examples as functions of public nature:
operation of prisons and other places of detention or correctional facilities under control of the Australian Government [in accordance with definitions under the Optional Protocol to the Convention against Torture],
the provision of federal public health services [for example, Medicare funded services],
public disability services [for example, National Disability Insurance Scheme services],
public education, including public tertiary education and public vocational education [for example, government schools and public universities],
emergency services [for example, Home Affairs emergency management programs],
public housing services [for example, remote Aboriginal and Torres Strait Islander housing programs], and
aged care services [for example, Aged Care Quality and Safety Commission accredited services].
Limitation clause
The PJCHR recommends a single limitation clause detailing when human rights can be limited, which provides that:
A human right may be subject under law only to such limits that are reasonable and can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.9
The limitation clause also outlines factor to consider when deciding whether a limit on human rights is reasonable and justified including nature of the right, and objective of the limitation.
Interpretive clause
The PJCHR report recommends that an interpretive clause be included in the a federal HRA that will require courts to interpret all primary and subordinate Commonwealth legislation, as far as is reasonably possible, in a manner that is consistent with human rights and if a statutory provision cannot be interpreted in a way that is compatible with human rights the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.10
Economic, social and cultural rights to be included in the HRA
The PJCHR considered advice provided to the National Human Rights Consultation Committee (Consultation committee) in 2009 by Stephen Gageler AC (then Commonwealth Solicitor-General, and now Chief Justice of the High Court of Australia) and Henry Burmester AO KC that provided ICESCR rights would likely to be “regarded by the High Court as lacking "sufficient specificity" to support the making of a law under the external affairs power” 11 and that economic, social and cultural rights are unlikely to be justiciable.
The PJCHR also considered advice from Peter Hanks KC, Debra Mortimer SC (now Chief Justice of the Federal Court), Associate Professor Kristen Walker (now Justice of Appeal, Supreme Court of Victoria) and Graeme Hill (now SC) obtained by the Human Rights Law Centre which concluded that there is “no necessary constitutional objection to including economic and social rights in any federal [HRA]’.
On the basis of the above consideration the PJCHR recommends that the immediately realisable aspects of economic, social and cultural rights such as requiring the government to ensure that people enjoy economic, social and cultural rights without discrimination; satisfy certain minimum aspects of these rights; and not take backwards steps (known as ‘retrogressive measures’) should be included in a HRA.
PJCHR has also recommends that the government seek updated advice from the Solicitor-General on the inclusion of social, economic and cultural rights in the HRA in order to avoid potential constitutional challenges.
The following ICESCR rights are included in the model HRA:
Rights to culture
Right to education
Right to health
Right to adequate standard of living, which includes a right to housing
Right to a healthy environment
Right to work and other work-related rights
Right to social security
The right to education as included in the model HRA is narrower than provided in the ICESCR as it replaces language from article 13(3) of the ICESCR with language from article 18(4) of the ICCPR in order to address objections raised by the religious groups, and the dissenting report.
Override declaration
The PJCHR does not recommend an override declaration which is a mechanism that allows Parliament to pass laws despite being incompatible with human rights.
The Victorian Charter, and the Queensland Human Rights Act both include an override provision, however during the inquiry both the Victorian and Queensland human rights commissions made submission to the PJCHR that an override declaration should not be included in the federal HRA. The ACT Human Rights Act does not have an override provision.
The Queensland Human Rights Commission provided that “laws subject to such a declaration provisions, and any statutory instruments made under those provisions, cannot be declared incompatible with human rights by a court, are not subject to human rights compatible rules of statutory interpretation, and ‘signals to public entities that they do not need to act compatibly with human rights when implementing these provisions’.17 The Victorian Equal Opportunity and Human Rights Commission provided that the inclusion of an override declaration suppresses the judiciary’s contribution to the dialogue model.
Declarations of incompatibility
In citing Momcilovic v The Queen18 in which a majority of High Court justices indicated that a federal court could not make a declaration of incompatibility because of the separation of powers requirement in Chapter III of the Commonwealth Constitution,19 the PJCHR did not recommend power for a court to make declaration of incompatibility.
Instead the PJCHR recommends that the Attorney-General’s Department to establish a process to monitor cases that arise under the HRA and if a court finds that it is not reasonably possible to interpret a statute in a way that is consistent with the HRA, the Attorney-General should be required to trigger a process for reviewing the law in question.20
The PJCHR recommends that the government seek legal advice as to whether requiring the Attorney-General to monitor court cases involving the HRA and reporting to Parliament would raise constitutional issues.21
Enforcement mechanisms
The PJCHR recommends that HRA should allow people to make complaints to the AHRC for conciliation, and if that fails or is inappropriate, to provide a stand-alone cause of action to the federal courts.
Administrative law pathway
The PJCHR recommends that the government seek legal advice in relation to the appropriateness of including compliance with duties and obligations under a HRA as part of a judicial review claim.22
Immediate adjudicative process
The PJCHR recommends that the government seek legal advice as to whether there is a constitutionally sound way of reintroducing an intermediate adjudicative process that could determine complaints under the HRA.23
Remedies
The PJCHR recommends that courts have the discretion to order a range of remedies under a HRA, including injunctions, orders requiring action, monetary damages, and the setting aside of administrative decisions.24
Costs
The PJCHR recommends that specific provision should be made to protect individuals from adverse costs orders when bringing action against public authorities under the HRA.25
National human rights education
The PJCHR recommends that the government commit to:
significant and ongoing funding of human rights education for the community, including in primary and secondary schools;26 and
appropriately funding the AHRC and non-government organisations to develop educational programs and resources.27
Cultural change
The PJCHR recommends that the government commit to significant and sustained funding to ensure greater respect for individual rights and freedoms, in particular by ensuring:
the AHRC 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 PJCHR; and
non-government organisations, including those providing legal services, are sufficiently funded to allow them to advance human rights protection.28
Public sector human rights training
The PJCHR recommends that the government (in consultation with the AHRC) 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;
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); and
The 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.29
Right to self-determination
A number of submitters to the inquiry, including the Indigenous Law and Justice Hub, and Jumbunna Insitute for Indigenous Education and Research highlighted the need for a stand-alone right to self-determination to be included in a federal HRA. The additional comments in the PJCHR report by Senator Lidia Thorpe also reinforced the growing calls for the inclusion of a stand-alone right to self-determination.
The PJCHR in noting the particular significance of the right to self-determination to Aboriginal and Torres Strait Islander people, recommends that the government seek legal advice as whether a stand-alone right to self-determination can be included in a HRA as an enforceable collective right.30
Right to a healthy environment
The PJCHR recommends the inclusion of the right to a healthy environment and expresses this right in the model HRA as follows:
Every person has the right to an environment that does not produce adverse health consequences in the following respects:
(a) every person has the right not to be subject to unlawful pollution of air, water and soil; and
(b) every person has the right to access safe and uncontaminated water, and nutritionally safe food.
(2) No unjustified retrogressive measures should be taken with regard to this right.
(3) No person should be subject to discrimination regarding the realisation of this right.
The primary sources for the inclusion of this right are article 6 of the ICCPR and articles 11 and 12 of the ICESCR and the United Nations General Assembly resolution, on the human right to a clean, healthy and sustainable environment.31
The PJCHR recommends “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.”32
Civil and political rights
The PJCHR recommends inclusion of civil and political rights in the HRA based on the AHRC’s position paper, but have made some amendments based on the dissenting report, and submissions from religious organisations criticising the AHRC’s model for departing from the ICCPR. For example, the wording of freedom of thought, conscience and religion in the AHRC model is amended to more closely align with the wording in the ICCPR.33
Conclusion
The PJCHR following its Inquiry into Australia's Human Rights Framework has made 17 recommendations that aims to strengthen Australia’s human rights framework. Although there are still questions that require further discussion, legal analysis and contribution from the civil society and wider public, the key recommendations of the PJCHR including the introduction of HRA, public awareness and education of human rights, and improved parliamentary scrutiny of human rights will strengthen Australia’s human rights framework.