What Is A 'Framework' And How Does It Protect Rights?


Last week, federal Attorney-General Robert McClelland launched the Government’s Human Rights Framework. This was not the announcement that human rights advocates nationwide had been hoping for. In lieu of initiating a federal human rights act, the Government’s attempt to address the many recommendations in the National Human Rights Consultation Committee report has fallen well short of any normative conclusion.

The Committee was established by the Rudd Government in December 2008 to conduct a nationwide consultation on human rights in Australia. It subsequently received in excess of 35,000 submissions — the highest number of submissions ever received in Australia for any national consultation.

From the submissions received, a clear majority of 87 per cent (27,888 submissions) supported the introduction of a federal Human Rights Act. Thirteen per cent (4,203 submissions) were received in opposition. In its report, which was released in September last year, the Committee ultimately recommended the adoption of a federal human rights act.

The Government’s Human Rights Framework provides for various initiatives: the provision of $2 million to NGOs and $6.6 million to the Australian Human Rights Commission for human rights education purposes; a $3.8 million education and training package for the Commonwealth public sector; a Parliamentary Joint Committee on Human Rights to monitor compliance of legislation with Australia’s "core" international human rights obligations; introduction of legislation requiring that new bills be submitted to Parliament with statements of compatibility; streamlining federal anti-discrimination laws; a Human Rights Forum to be held annually to encourage human rights discourse with NGOs; and a new National Action Plan on Human Rights to be drafted in consultation with NGOs and state and territory governments.

While the Government’s funding allocations for human rights education are welcomed, a much greater commitment from the federal government is needed in the long run. Changes need to be systemic and uniform throughout Australia.

The Castan Centre for Human Rights Law, a research centre based at Monash University for the scholarship and advancement of human rights, issued a press release on 21 April 2010 stating that "human rights education is most effective when there is a domestic human rights act on which to base that education".

A federal human rights act would underpin human rights education in the community. Let’s hope that the educative measures in the Human Rights Framework do assist in increasing awareness in the community so that more citizens will start to question why Australia doesn’t have its own federal Human Rights Act — ideally, before the Government’s review of the Human Rights Framework in 2014.

Human rights acts have been enacted in other countries, including New Zealand in 1990, and the United Kingdom in 1998. The Committee’s report noted that Australia is "the only Western democracy that does not have some form of national charter or bill of rights".

Within Australia, the ACT was the first territory to enact its own Human Rights Act in 2004. Victoria followed in 2006 with its Charter of Human Rights and Responsibilities Act. These two acts are premised on a dialogue model of human rights legislation and they require parliaments to issue statements of compatibility of all laws with human rights obligations. This dialogue model enables judges to interpret laws in a manner compatible with human rights obligations, and to declare when laws are incompatible. The National Human Rights Consultation Committee recommended the implementation of this kind of dialogue model for a federal human rights act.

Opponents argue that a federal human rights act would enable the judiciary to "change" laws. This argument relies on a misconception about the type of model under discussion.

Former High Court justice and eminent human rights authority, Michael Kirby AC CMG, stated in an address to the Law Institute of Victoria in August 2008 that such a dialogue model "does not give courts a power to override or invalidate a law made by Parliament. It simply encourages courts to interpret laws made by Parliament, in so far as they can, to be consistent with the charter. If an inconsistency exists, this is brought to the attention of Parliament. It still has the final say."

Further, the Committee recommended that any federal human rights act include a provision requiring "legislation to be interpreted in a way that is compatible with the human rights expressed in the act and consistent with Parliament’s purpose in enacting the legislation." Courts would be restricted to interpretation in line with Parliament’s intention, a far cry from an "unfettered" judicial discretion.

The "floodgates" argument is often mobilised by opponents of a federal human rights act who worry that such an act will open the floodgates to litigation in courts. This has not occurred in New Zealand, the United Kingdom, the ACT or Victoria.

The "if it ain’t broke" argument also gets a run — but those who use it ignore the many inadequacies and omissions in Australia’s existing human rights laws. A federal human rights act would provide protections for the marginalised and disadvantaged in our community who fall through the gaps in our current human rights laws. Furthermore, the many inconsistencies between existing human rights laws at state and territory levels would best be resolved with the uniformity of a federal human rights act.

For the NGOs, advocates and individuals that had put forth numerous submissions during the course of the consultation in favour of a federal human rights act, McClelland’s announcement of the Human Rights Framework was a bitter disappointment.

Notwithstanding the positive measures in the Framework, the disappointment stems from the obvious omission in the new scheme. It is a misnomer to label these initiatives a "Human Rights Framework" in the absence of federal human rights legislation to enforce any such framework. The framework lacks credibility in a practical sense because it fails to ensure accountability for human rights violations.

Chairman of the National Human Rights Consultation Committee, Father Frank Brennan AO, invoked the great Labor politician H. V. Evatt in his Foreword to the Committee’s report.  Dr Evatt was a staunch defender of human rights and civil liberties and the first and only Australian to serve as President of the United Nations General Assembly. In 1948, he presided over the adoption of the Universal Declaration of Human Rights (UDHR). Having assisted in the creation of what is arguably the most important human rights document in the 20th century, one wonders what Evatt would make of Labor’s approach to human rights in 2010.

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