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Engaging in the Debate the National Human Rights Consultation Engaging in the Debate law human resource rights centre The National Human Rights Consultation Engaging in the Debate The National Human Rights Consultation Engaging in the debate Philip Lynch and Phoebe Knowles Human Rights Law Resource Centre Ltd Level 17, 461 Bourke Street Melbourne VIC 3000 P (03) 8636 4450 F (03) 8636 4455 E [email protected] W www.hrlrc.org.au Written and researched with the substantial assistance of: Chiara Caputo, Bryn Dodson, Jess D’Souza, Andrew Gun, Francisca Hoffmann-Axthelm, Annette Hughes, Suzanne Komattu-Mathews, Elana Pose, Chris Rosario, Anthony Sciuto, Elisabeth Sobon and Gerard Woods of Allens Arthur Robinson (www.aar.com.au). The National Human Rights Consultation – Engaging in the Debate Table of Contents Executive summary 1 Part A. Background questions 3 1. What are the arguments for and against a Federal Charter? 3 1.1 Introduction 3 1.2 Summary of arguments 3 1.3 Arguments for 4 1.4 Arguments against 8 2. What will it mean to me? 15 2.1 Obligations 15 2.2 Rights 15 3. What else do we need to know? 16 3.1 Overview 16 3.2 Education programs 17 3.3 Funding and resources 17 3.4 Availability of legal and advocacy services 17 3.5 Responsible body 17 3.6 Review mechanism 18 3.7 Changes for specific groups 18 3.8 Changes to related laws 19 Part B. Do we need it? 20 1. Introduction 20 2. Human rights protection in Australia 22 2.1 Domestic human rights protection 22 2.2 International human rights protection 27 2.3 Conclusions about current legal protection of human rights in Australia 30 3. Human rights breaches in Australia 31 3.1 Examples of human rights breaches 31 3.2 Other human rights concerns in Australia 34 3.3 Recent developments in the promotion of human rights in Australia 39 Part C. What would it do? 40 1. Introduction 40 2. What rights might it protect? 40 2.1 The international human rights framework 40 2.2 Australia's international human rights obligations 42 2.3 Civil and political rights 42 2.4 Economic, social and cultural rights 43 3. Whose rights should be protected? 49 3.1 Rights of individuals 49 3.2 Rights of non-citizens 49 Page ii The National Human Rights Consultation – Engaging in the Debate 4. Should there be limitations on human rights? 50 4.1 Are human rights absolute? 50 4.2 Limitations under the ICCPR 50 4.3 Limitations under domestic human rights instruments 53 5. Who would have to comply with it and how? 55 5.1 Defining who would be bound by a Federal Charter 55 5.2 Definition of 'public authority' 56 5.3 'Government agency' as an alternative to 'public authority' 61 5.4 A further alternative: staying silent on the obligations of public authorities 62 5.5 Executive policies and practices 63 5.6 What obligations should a Federal Charter impose? 64 Part D. How would it work? 69 1. Introduction 69 2. What are the possible models? 69 2.1 Key issues in selecting a model 69 3. Models from other jurisdictions 76 3.1 Australian Capital Territory 77 3.2 Victoria 81 3.3 United Kingdom 88 3.4 New Zealand 92 3.5 Canada 94 3.6 South Africa 98 3.7 United States 100 4. How would it affect democracy and parliamentary sovereignty? 103 4.1 Parliamentary sovereignty 103 4.2 Impact on democracy 105 5. What are the constitutional issues? 111 5.1 Constitutional model 111 5.2 Legislative model 112 5.3 Power of federal courts 115 5.4 Effect of a Federal Charter on state laws 118 6. What remedies could be available if a person’s human rights are breached? 121 6.1 Obligation to ensure effective remedies in international law 121 6.2 How can disputes about breaches of human rights be resolved? 122 6.3 Should there be an independent cause of action under a Federal Charter? 124 6.4 Standing 125 6.5 Articulation of remedies in a Federal Charter 125 6.6 Breaches of civil and political, or economic, social and cultural rights 126 6.7 Possible remedies under a Federal Charter 127 List of defined terms 136 Page iii The National Human Rights Consultation – Engaging in the Debate Executive summary Executive summary On 10 December 2008, the 60th anniversary of the adoption by the United Nations of the Universal Declaration of Human Rights (UDHR), Australia's Federal Government launched a national public consultation about the legal recognition and protection of human rights and responsibilities.1 The National Human Rights Consultation is a historic opportunity for individuals and communities throughout Australia to improve our democracy and to have our say about the protection of fundamental values such as freedom, respect, dignity and a fair go. The Government has appointed a Committee, chaired by Father Frank Brennan (a Jesuit priest and Law Professor), to undertake the Australia-wide community consultation. The Committee has been tasked to ask the Australian community: • Which human rights (including corresponding responsibilities) should be protected and promoted? • Are these human rights currently sufficiently protected and promoted? • How could Australia better protect and promote human rights?2 Submissions to the Committee are due by 29 May 2009 and the Committee has been asked to report to the Australian Government by 31 July 2009 on the issues raised and the options identified to enhance the protection and promotion of human rights. According to the Committee's Terms of Reference, '[t]he options identified should preserve the sovereignty of the Parliament and not include a constitutionally entrenched bill of rights.'3 This report by the Human Rights Law Resource Centre (HRLRC) aims to provide information and evidence to enable individuals and organisations to engage in this debate in an informed and balanced way. Consistent with the Committee's Terms of Reference, by far the most likely model for a federal law (if any law is introduced) is the legislative 'charter model', which protects human rights using an ordinary Act of parliament. The legislative model has been adopted in Victoria, the Australian Capital Territory (ACT) and the UK, and, as Federal Attorney-General Robert McLelland has said,4 and there is virtually no chance that a constitutionally entrenched bill of rights would be introduced in Australia. Accordingly, and for the sake of brevity, this report uses Federal Charter to describe a possible federal human rights law. The report begins by outlining the arguments for and against a possible Federal Charter, the potential implications for private citizens and what would need to occur to implement a Federal Charter. The report then seeks to address the central issues in the debate by answering three broad questions: 1 See the National Human Rights Consultation website: www.humanrightsconsultation.gov.au 2 National Human Rights Consultation, Terms of Reference, available at: http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Terms_of_Reference. 3 Ibid. 4 Robert McLelland, 'Human rights and Australia – Writing the next chapter' (Panel discussion at RMIT Storey Hall, Melbourne, 11 December 2008). Page 1 The National Human Rights Consultation – Engaging in the Debate • Is a Federal Charter necessary? • What would a Federal Charter do? • How would a Federal Charter work? Addressing the question of whether a Federal Charter is necessary requires an assessment of the current state of human rights protections in Australia and whether human rights breaches occur here despite those protections. The report then considers what rights might be protected, whether those protections should be subject to limitations, whose rights would be protected and who would have to comply with a Federal Charter. The final section considers the mechanics of a federal human rights law, and the principal issues that would arise in its drafting and implementation, including whether such a law would be part of the Commonwealth of Australia Constitution Act 1901 (Cth) (Constitution) or an ordinary piece of legislation, the role of the courts, the impact on parliamentary sovereignty and democracy, potential constitutional issues, and what remedies might be available for people whose rights have been breached. The section looks at the existing models for human rights laws in Victoria, the ACT, the United Kingdom (UK), New Zealand, Canada, South Africa and the United States of America (US). The HRLRC welcomes the clear commitment by the Australian Federal Government to the promotion and protection of human rights, and presents this report to contribute to an informed debate on how human rights should be promoted and protected at the federal level. This report demonstrates that there is scope for a Federal Charter to contribute to the continual improvement of Australian democracy and the protection of human rights. Page 2 The National Human Rights Consultation – Engaging in the Debate Part A: Background questions Part A. Background questions 1. What are the arguments for and against a Federal Charter? 1.1 Introduction This section summarises some of the main arguments for and against a Federal Charter. In appraising these arguments, it is important to bear in mind that their strength and relevance greatly depends on the kind of model that is considered for a Federal Charter.5 The arguments summarised here are not blanket statements that apply to any model for a Federal Charter. Rather, they are intended to assist in critically examining proposed models, and evaluating their advantages and disadvantages. 1.2 Summary of arguments Arguments for Arguments against A Federal Charter may: A Federal Charter may: • protect fundamental human rights, • create a 'flood of litigation'; promote human dignity and address • assist
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