Hugh de Kretser, executive director of the Human Rights Law Centre, said that “charters of human rights in Victoria, Queensland and the ACT have had a clear positive impact on people’s lives. They’ve helped people to overturn unjustified eviction notices that would have seen them homeless; to access appropriate medical treatment; to stop children being locked up in cruel conditions in an adult prison and much more.”

Mr de Kretser emphasised that “we urgently need a charter of human rights at the national level. An Australian charter of human rights will help ensure that shared values like freedom, equality, dignity and respect are at the heart of laws, policies and government services. It will mean that if someone’s rights are violated, they can take action to seek justice. It will help to realise a fair go for all.”  

He continued, “in his victory speech, the Prime Minister spoke of a government that is caring. A society that leaves no one behind. An economy that works for the people and a nation in which no matter where you live or where you come from, the doors of opportunity are open to us all. A charter would play a key role in realising this vision.” 

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Mr de Kretser highlighted that “the Albanese government should move swiftly to introduce an Australian charter of human rights. Our survey research shows strong and increasing support for an Australian charter. Now is the time for action.”

Kerry Weste, president of the Australian Lawyers for Human Rights, agreed that the new government had indicated its support for a national Bill of Rights. She said: “Labor’s National Platform as of March 2021 stated that ‘Labor will review the Human Rights Framework established by previous Labor governments and consider whether it could be enhanced through a statutory charter of human rights or other similar instrument’.”

In the context of the Greens Party, she pointed out that “at the federal level, the Australian Greens aim to: ‘to progress an Australian Bill of Rights and incorporate Australia’s international human rights obligations into domestic law’.”

Under the past federal Coalition government, support for the charter of rights has been limited. Ms Weste indicated, “over the past decade, it appears the federal Coalition has preferred a focus on what they refer to as ‘traditional rights, freedoms and privileges’ with an emphasis on selecting certain rights, such as so-called ‘religious freedoms,’ for legislative protection”.

She continued, “to date, this has not included a commitment at the national or state and territory levels to review existing human rights frameworks in the context of examining the need for comprehensive legislation that incorporates a wide range of Australia’s international obligations into domestic law”.

Ms Weste remarked that “in 2004, the Australian Capital Territory was the first Australian jurisdiction to introduce a Human Rights Act, this was followed by Victoria in 2006 and most recently Queensland in 2019. Years of operation have proven that these state-based laws are consistently and demonstrably improving the lives of individuals in those jurisdictions. By articulating and legally protecting the values we hold most dear, like freedom, equality and dignity, they work in practical ways to protect people’s safety and quality of life.”

The existing state-based acts, she went on, “provide protection for most internationally recognised civil and political rights and some economic, social and cultural rights. This includes, for instance, protection from torture, cruel, inhuman, degrading treatment or punishment, the right to a fair trial, freedom of speech, movement and assembly, the right to privacy, the right to an education and the right to access healthcare without discrimination.”

Ms Weste emphasised that “there is now a significant body of examples that demonstrate the key achievements of these laws in improving people’s lives and fostering a culture of respect for human rights in the way that we are governed. A prime example is the way the Victorian charter assisted the law-making process during the process of legislating the government’s COVID-19 emergency laws, by ensuring the government’s powers were more proportionate and compatible with human rights, while still achieving their primary purpose.”

She observed that “human rights legislation has also provided a human rights framework for the lawmaking process and informed stakeholder consultations in the development and implementation of legislation and reforms. When the Transport Integration Act 2010 was being developed, the Victorian government undertook significant stakeholder consultations. These consultations identified the relationship between the planning, management and operation of the state public transport system and the protection of human rights.”

Ms Weste noted that “the ACT government has published guidelines to instruct government departments on how to consider human rights in the development of legislation and policy. The guidelines alert public officials to the specific human rights that might be engaged by different types of policy and law. For example, the guide instructs public officials to consider the cultural rights protected by section 27 of the Human Rights Act 2004 (ACT) when they are developing policies that have the potential to limit the ability of Indigenous or other ethnic groups to continue to take part in distinct cultural practices.”

Moreover, she said, the Queensland Human Rights Act’s accessible complaints mechanism is “providing people with cheap and simple pathways that they can use to take action if their human rights are breached. This delivers tangible outcomes that make a real difference in people’s lives such as the installation of escalators as part of a railway station upgrade to improve disability access, the ongoing provision of appropriately accessible public housing for families living with disability, or ensuring that a teenager in youth detention during COVID-19 visiting restrictions could access a video call with his family for his birthday.”

In the same way, a federal human rights charter would further strengthen human rights protection. Ms Weste said that “the framework created by these models is sorely needed at the federal level as well as in other states and territories. Australia is a federation so we need the unique contribution of both national and state-based legislation to ensure that everyone’s human rights are considered by all levels of government as they go about making the laws, policies and decisions that significantly impact our daily lives.”

Ms Weste continued that “although Australia has committed to respect, protect and promote all of the core international human rights treaties, successive federal governments have cherry picked only a limited number of our international obligations for protection in their legislation. The problem with this selective and piecemeal approach is that it leaves many people in Australia without any legal recognition whatsoever of their most fundamental human rights.”

She emphasised that “a federal charter of human rights and the introduction of further state-based human rights acts would address this by, firstly, requiring all of our parliaments to consider human rights when passing and amending legislation; secondly, by requiring public entities, such as state and federal government departments, local councils, government schools, universities, the police and all organisations performing public functions to act compatibly with our human rights; thirdly, enabling all Australian courts and tribunals to interpret legislation consistently with human rights and empowering them to issue declarations for our parliaments to consider if they find that legislation breaches human rights; fourthly, providing ways that individuals can make complaints and seek remedies if their human rights are breached.”

Ms Weste concluded that “in essence, this would deliver greater protection of all of our human rights in all areas where government actions touch on our lives. Moreover, in the absence of a federal framework to protect human rights, there is no mechanism in Australia to allow for appropriate and proportionate balancing between, for example, ‘national security’ and freedom of expression or between religious rights and other rights. This perpetuates divisive and harmful discourse because we have failed to establish a national framework that reflects the core principle that everyone’s human rights are equally worthy of protection.”

She said, “no matter where we live in Australia, we all deserve laws that ensure we are entitled to be treated fairly and equally, with dignity, compassion and respect. The citizens of every other comparable democratic nation enjoy such protections and Australians deserve nothing less. It’s time for an Australian charter of human rights and for our remaining state and territory governments to commit to implementing their own human rights acts.”

The Human Rights (Parliamentary Scrutiny) Act 2011 requires statements of compatibility, which have been a poor substitute for a federal human rights charter. Ms Weste stated that “the Human Rights (Parliamentary Scrutiny) Act 2011 requires all federal legislation be accompanied by a ‘statement of compatibility’ with human rights. These statements should assess compatibility against the seven core United Nations human rights treaties to which Australia is a party. The act also established a parliamentary joint committee on human rights. It is worth noting that this mechanism was part of the then federal government’s response to the National Human Rights Consultation which, in fact, recommended Australia adopt a federal Human Rights Act based on the dialogue model.”

Ultimately, Ms Weste argued that “statements of compatibility on their own are an extremely poor substitute for a comprehensive framework that expressly articulates and protects our fundamental human rights within domestic legislation, requires parliament to consider human rights when passing and amending legislation; requires public entities to act compatibly with our human rights, enables courts and tribunals to interpret legislation consistently with human rights; and issue declarations if they find that legislation breaches human rights. Most importantly, statements of compatibility do not protect people’s fundamental right to access a remedy if their human rights are breached.”

Ms Weste indicated that overseas jurisdictions have been an important source of guidance in the development of human rights charters in Australia. She said, “in addition to looking toward the ACT, Victorian and QLD Human Rights Acts, Australia can also look to overseas jurisdictions in order to observe the demonstrable improvements delivered when governments incorporate their international human rights obligations into domestic legislation. These jurisdictions also serve to disprove claims that human rights frameworks are too costly to implement, disproportionately interfere with the ability to govern through crises or lead to an overly litigious society.”