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What will a Human Rights Act achieve?

While we may not automatically conceive of many things as ‘human rights issues’, every aspect of our lives intersects with human rights and responsibilites. By re-imagining our democracy under a protective umbrella of human rights promotion, we can set about creating a vibrant, diverse and productive community that ensures the protection of each of its members. Human rights protection on the one hand prevents governments from infringing on our peaceful enjoyment of life; but on the other it confers on each of us a responsibility to work towards building a society where all can enjoy a quality and dignity of life.

A Human Rights Act will enhance basic democratic values and improve public policy. A Human Rights Act will encourage rights protection through better transparency and accountability and through dialogue between the courts and Parliament. When new policies are being developed, human rights principles will be used as framework. When laws are introduced to Parliament, they can be assessed as to whether they are compatible with the Human Rights Act. When a matter is taken to the courts, they will be able to either interpret laws to be consistent with the protected human right, or if this is not possible, declare a law is incompatible with human rights. Importantly, courts will not be able to dismiss laws on the basis of the Act. The final decision on how to deal with the incompatibility will always remain with the Parliament.

Click here to make your submission to the Government on human rights.

Why do we need a Human Rights Act?

We don’t need to look far to see that violations of human rights are occurring in Australia. Children have been held in detention centres, asylum seekers have been detained for indefinite periods, terrorism laws have stripped back fundamental freedoms and Indigenous Australians have been left without adequate housing, health and education services. And these are just some of the human rights violations that hit the headlines.

The vast majority of human rights violations occur quietly – inflicted upon vulnerable and marginalised people who can’t stand up for themselves, let alone attract media attention to their predicament. Our system fails all of these people. And we shouldn’t have to rely on community outrage to ensure that laws and decisions are right and fair. In a modern democracy, we need to find a way to make sure that human rights are taken into account when decisions are made, so that nobody falls through the cracks.

Click here to make your submission to the Government on human rights.

Some examples of how human rights legislation is operating elsewhere is useful to understand the effect that it will have on ordinary people.

A sample of the kinds of cases that are being addressed under the Victorian Charter:

• A woman suffered a brain injury that caused severe and very painful contractures in her left hand. Unless treated, the woman will probably have to have her hand amputated. Though she has been waiting for three years, she is not considered a priority for treatment because she is over 50 years of age. The Charter is being used to argue that the woman should have prompt access to treatment on the basis of a right to non-discrimination and other rights under the Victorian Charter.
• A pregnant single mother with two children was living in community housing. She was given an eviction notice, which didn't provide any reasons for the eviction, or allow her to address the landlord’s concerns. The Victorian Charter was used to negotiate with her landlord to prevent an eviction into homelessness, and reach an alternative agreement.
• The human rights of a young boy with intellectual difficulties are being emphasised to ensure that his transport to and from school enables him to concentrate and participate in classes.
• A prisoner who could not afford the high transport costs to attend his civil court hearing used the Charter to argue that his right to a fair hearing was at risk, and the costs were waived.

For more information on the operation of the Victorian Act, see the Human Rights Law Resource Centre website.

Click here to make your submission to the Government on human rights.

A sample of the kinds of cases being addressed under the UK Human Rights Act:

• A man detained in a mental health hospital repeatedly soiled himself, and staff refused to clean him up or take him to another room, claiming that he would simply make a mess again. He argued that this treatment breached his right not to be treated in an inhuman or degrading way, and his right to respect for private life, and the hospital changed their practice.
• A husband and wife had been married for 65 years. He was unable to walk unassisted, and relied upon his wife for mobility. She was blind, and relied upon her husband as her eyes. The husband fell ill and was moved into a residential care facility. The wife requested to move with him, but was denied because she did not meet the entry criteria of the facility. She successfully argued for her admission on the basis of the right to family life.

For more information on the operation of the UK Act, see the British Institute of Human Rights website.

Note that most of the examples listed above never went to court; the human rights legislation was used to achieve a more humane compromise without ever resorting to litigation.

Click here to make your submission to the Government on human rights.

How can we make sure that we don’t get stuck with rights that we will regret later?

The current debate about human rights protection in Australia centres around whether we should have a statutory Human Rights Act, rather than the US style Constitutional Bill of Rights. So while a Constitutional Bill of Rights can only be changed by referendum (a notoriously difficult process), the model of human rights protection that is on the table in Australia can be amended by an ordinary Act of Parliament, and will not result in a legal instrument that can’t be changed as our society develops.

Will a Human Rights Act transfer power from Parliament to unelected judges?

Those who express concern about the transfer of power to the courts are often referring to a constitutional Bill of Rights, like the one in operation in the US. There are other ways of protecting human rights, and a Human Rights Act will not impact unduly on our existing system of government.

When a matter is taken to the courts, the courts will be able to either interpret laws to be consistent with the protected human right or, if this is not possible, to declare a law to be incompatible with human rights. But the courts will not have the capacity to dismiss or invalidate laws. The incompatible law will be tabled in Parliament and the final decision on how to deal with the incompatibility will remain with the Parliament.

Click here to make your submission to the Government on human rights.

Will a Human Rights Act lead to an increase in litigation?

In the UK, statistics show that in the first year there was only a very small increase in the total work of the courts. Senior judges there commented that the Act had complemented the system rather than disrupted it.

A five-year review of the UK law found that the overall impact on UK law had been positive. The full report can be found at the UK Department of Constitutional Affairs. In terms of remedies, the interpretation provision had been used by the courts on only 12 occasions since 2000 and there had been 20 declarations of incompatibility made, 6 of which were later overturned.

Will the Government ever be able to limit human rights in the national interest?

There may well be situations in which rights need to be limited in the public interest.

In a public emergency Parliament will still be able take measures that override all but a few ‘absolute’ rights. These rights that may never be interfered with include the protection against torture and cruel, inhuman or degrading treatment and the prohibition against slavery.

Is there legislation to protect human rights at the state level?

In Australia, Victoria and the ACT have now enacted human rights legislation to this effect, and community-based reports in Tasmania and Western Australia have recommended the same outcome.

Click here to make your submission to the Government on human rights.