Angel Barber and Stella Wailes
Australia is the only liberal democracy without a national Human Rights Act (HRA). In May 2024, the Parliamentary Joint Committee on Human Rights recommended that a national HRA be introduced in Australia. An HRA would significantly improve Australia’s framework for protecting rights and amidst a worsening housing crisis and the prosecution and imprisonment of whistleblowers, it is crucial to embed human rights into government decision making and promote a human rights culture across the nation.
What is a Human Rights Act?
An HRA is a legislative charter of rights. It would expressly recognise a consolidated set of human rights that reflects Australia’s obligations under international human rights treaties.
An HRA would establish an obligation on public authorities such as government agencies, Commonwealth ministers and Federal Police to respect, protect and promote the human rights set out in the Act. Courts would be required to interpret and apply laws in a way that does not breach human rights protected in the HRA. All bills introduced in Parliament would need to be weighed in accordance with the HRA, providing a layer of scrutiny and guidance. It would operate in a similar way to the state-based HRAs currently in force in the Australian Capital Territory, Victoria and Queensland.
Former President of the Australian Human Rights Commission, Emeritus Professor Rosalind Croucher AM, suggests that a national HRA would ‘set out the basic rights of Australians, require proactive consideration of how these rights are being protected, and provide avenues for redress if people’s rights are infringed’.
The case for an Australian Human Rights Act
Legal protection of human rights in Australia is limited, currently relying on a ‘patchwork system of rights protection’ that flows from our international human rights obligations and includes reliance on the Constitution, anti-discrimination legislation and ad-hoc court cases.
This fragmented approach makes it difficult for Australians to easily determine when their human rights have been breached and seek appropriate relief. When human rights abuses do occur, legal remedies can be opaque, difficult to access and there is not always a direct legal pathway to hold those responsible to account.
Recent Royal Commissions into Robodebt and the aged care and disability sectors have exposed shocking human rights abuses. The lack of accountability demonstrates the inadequacy of our current human rights framework and as former High Court Justice, human rights advocate and jurist, the Hon Michael Kirby AC suggests, "anyone’s human rights can be trampled by government decisions at any time - not just people in minority groups".
There is strong support for an HRA in Australia. Polling by the Human Rights Law Centre in 2021 found that four in five Australians believed that there should be a document that sets out the rights of all Australians and 87% of submissions to the recent Parliamentary Joint Committee's Inquiry into Australia's Human Rights Framework were in favour of an HRA.
In its May 2024 report, the Committee concluded that there was a ‘clear need’ for the establishment of a federal, comprehensive and enforceable rights-based framework. There were 17 recommendations made, including the enactment of a HRA that largely reflects the model proposed by the Australian Human Rights Commission. The Committee published a draft Human Rights Bill that includes a range of civil, political, economic, social and cultural rights recognised in international human rights treaties.
The Committee's report proposes establishing a positive duty on public authorities to act in a way that is consistent with and properly considers human rights in decision making. The Committee recommended that an individual should be able to bring a case under the HRA directly to the Federal Court when conciliation is not appropriate. It was also suggests that the Court be able to award a range of remedies on a discretionary basis.
How would a Human Rights Act work in practice?
The two case studies below illustrate how a national HRA could assist in tackling the housing crisis and bolstering protections for whistleblowers in Australia.
Case study 1: Human Rights Act and the housing crisis
Australia is facing a growing housing crisis with historically high property prices, rent increasing faster than wages, record-low rental vacancies and a significant shortfall in supply. In March 2024, a report from real estate data firm PropTrack showed that rental affordability is at its lowest since 2008.
The right to adequate housing is a human right which is enshrined in international law. The right to an adequate standard of living which includes the right to adequate housing is recognised in the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR).
As a party to the ICESCR, Australia has obligations under international law to ensure affordability and accessibility of housing. However, there is currently no legal right to housing enshrined in the Australian Constitution or federal legislation. A national HRA would protect the human rights commitments Australia has made under international law including the right to adequate housing.
The Committee's draft bill for a national HRA includes the right to adequate housing and imposes an obligation on public authorities to provide adequate, affordable and accessible housing. An HRA is crucial in establishing overarching protection of the right of all Australians to adequate housing. It will provide a basis for other laws to expand, clarify and give effect to this fundamental human right.
A new housing bill, introduced by independent federal parliamentarians Kylea Tink and David Pocock on 24 June 2024, is one such example. The National Housing and Homelessness Plan Bill 2024 adopts a human-rights based approach to housing policy. It seeks to recognise that housing is a ‘fundamental human right’ which is essential to the ‘inherent dignity and well-being’ of a person and give effect to Australia’s international obligations to ensure adequate housing under the ICESCR.
This housing bill requires current and future governments to develop and implement a National Housing and Homelessness Plan in line with legislated objectives of ensuring that everyone in Australia has adequate housing, preventing homelessness and improving housing availability and affordability. A new government officer would be created to independently investigate housing policy issues and monitor progress against the plan. The bill also requires the government to establish a collaborative advisory body with representatives of tenants, homeowners and people that experience homelessness.
Signatories to the open letter calling on the Housing Minister Julie Collins to adopt the plan include 117 housing experts, academics, politicians, former MPs from different sides of politics, peak bodies and advocates. The bill is currently being debated before Parliament.
Case study 2: Human Rights Act and whistleblower protections
Whistleblowers are essential to a healthy democracy. Whistleblowing upholds transparency, accountability, and access to information and is vital to exercising the right to freedom of opinion and expression. A whistleblower is an individual who discloses information about wrongdoing in good faith, which is in the public interest. However, a spate of recent high-profile cases has brought Australian whistleblower laws under the spotlight, emphasising the urgent need for more robust protection.
Witness K and Bernard Collaery faced prosecution for disclosing the Australian government’s spying on Timor-Leste to secure the upper hand in oil and gas negotiations. Witness K pleaded guilty, and Collaery continued to face prosecution until Attorney-General Mark Dreyfus dismissed the case in July 2022. In 2016, David McBride reported on alleged war crimes being perpetrated by Australian forces in Afghanistan. McBride was sentenced to five years and eight months in imprisonment, making him the first Australian to be imprisoned in relation to the alleged war crimes. Richard Boyle spoke up about unethical debt recovery practices at the tax office. If convicted, Mr Boyle could face up to 46 years in prison.
Although Australia is a party to the ICCPR, which recognises a right to freedom of opinion and expression, the Constitution does not expressly protect this right. The High Court has inferred an implied right to freedom of political communication. However, this implied right is subject to limitations. Similarly, Australia currently has a very fragmented approach to whistleblower protection. Whistleblower protections are spread across multiple federal, state, and territory legislative instruments, each with different standards, coverage and protections. This creates confusion and inconsistencies, particularly for whistleblowers operating in multiple jurisdictions or sectors.
The prosecution of Witness K, Collaery, McBride and Boyle demonstrates a lack of protection for individuals who speak up about wrongdoing. They are punished rather than protected, though without them, corruption, misconduct, human rights abuses, and wrongdoing remain in the shadows. However, the introduction of an HRA may significantly improve the protections available to them.
Adopting an HRA that guarantees freedom of opinion and expression is essential to improving a fragmented whistleblower framework. A unified framework would streamline disparate laws, potentially enabling the establishment of a dedicated whistleblower protection authority or commissioner. By consolidating protections, individuals would feel empowered to disclose wrongdoing without fear of reprisal, upholding freedom of opinion, expression, integrity and accountability in Australia.
Conclusion
Amidst a deepening housing crisis and the continued prosecution of whistleblowers, the case for implementing an HRA is more compelling and urgent than ever. An HRA would provide a robust legal framework that protects and promotes human rights, enhances transparency and accountability and fosters a human rights culture in which ‘all members of the Australian community are treated with dignity and respect’. In light of growing public support and the Committee's recommendations, the government must seize this opportunity and momentum to establish a much-awaited national HRA.
Angel Barber and Stella Wailes were interns with the Australian Human Rights Institute for Term 2, 2024.