Human rights for Australians: Towards a Human Rights Act NSW Geography Teachers’ Association Conference NSW Parliament House 7 August 2009 Edward Santow Senior Lecturer, Faculty of Law, UNSW Director, Charter of Human Rights Project, Gilbert +Tobin Centre of Public Law 1

Session coverage What are ‘human rights’? Current protection of HR in Australia. What would a Human Rights Act look like? – Dominant HRA model. – Operation of HRAs around the world. National Human Rights Consultation. 2

What are ‘human rights’? Human rights designed to protect individuals’ dignity and ability to participate in society. Two main categories of human rights: (i)Civil and political rights. (ii)Economic, social and cultural rights. 3

Civil and political rights These include your right to: life; not to be tortured; be free from slavery and forced labour; be free from arbitrary arrest or detention; freedom of movement and association; privacy; freedom of expression; vote. 4

Economic, social and cultural rights These include your right to: family life, and to look after your children; work and to be treated fairly at work; form and join a trade union; an adequate standard of living, including adequate food, clothing and housing; access to appropriate health care; a basic education; maintain your culture and language access services regardless of your race, gender, age or disability. 5

A hierarchy of legal norms Constitution Acts of Parliament Common law (judge- made rules) Societal practice and culture 6

How are human rights protected now? Constitutional protection (limited). Specific legislation—eg, anti-discrimination laws. Common law. A ‘culture’ of human rights protection. 7

What is a ‘Human Rights Act’? Nomenclature: Bill of Rights, Charter of Rights, Human Rights Act… all the same thing. Dominant Human Rights Act model: – Statutory, not constitutionally entrenched. – Bills of Parliament to be scrutinised against HRA. – The executive (public servants) required to conform to HRA. – Court cannot strike down incompatible legislation: only issue a declaration of incompatibility. 8

Aims of the dominant HRA model Improving public service decision making. Maintenance of core constitutional principles—eg, parliamentary supremacy and the separation of powers. Protection of, at least, civil and political rights. Debate over inclusion of ESC rights. 9

A Human Rights Act – myths “The Bills of Rights in Zimbabwe and the USSR didn’t stop human rights violations.” “Democracy and the common law adequately protect human rights.” “A HRA transfers power from Parliament to unelected judges.” “A HRA will create a flood of litigation.” “Will be used only by criminals and terrorists to exploit loopholes.” 10

The HRA debate: why does it matter? Australia is the only liberal democracy in the world without some form of HRA. Widespread reform throughout the British Commonwealth on human rights protection. Overwhelming evidence that a HRA really makes a difference: case studies. 11

National Human Rights Consultation: the Brennan Committee Father Frank Brennan AO Mary Kostakidis Mick Palmer AO APM Tammy Williams Timeline: Roundtable meetings: now. Submissions due: 15 June Committee to report to Australian Government: 30 September Consultation website: 12

National Human Rights Consultation: Getting involved Three questions posed to the Committee: 1. Which human rights (including corresponding responsibilities) should be protected and promoted? 2. Are these human rights currently sufficiently protected and promoted? 3. How could Australia better protect and promote human rights? Terms of Reference requirements: The Committee must consult widely, and assess community support for the various options. The Committee must not consider a constitutional Bill. The Committee must consider all methods of protecting HR. 13

Further information Gilbert + Tobin Centre of Public Law: gtcentre.unsw.edu.au/projects_partners/projects/cohr gtcentre.unsw.edu.au/projects_partners/projects/cohr Aust Human Rights Group: humanrightsact.com.au/ahrg humanrightsact.com.au/ahrg Human Rights Law Resource Centre: hrlrc.org.auhrlrc.org.au Australian Human Rights Commission: humanrights.gov.au humanrights.gov.au Consultation website: humanrightsconsultation.gov.au humanrightsconsultation.gov.au 14