Submission: Free and Equal, Human Rights in Australia - July 2019

A NSW Council for Civil Liberties Submission to the Australian Human Rights Commission’s Free and Equal: An Australian conversation on human rights project. This submission argues that human rights have not been respected in Australia, are not protected, and suggests some methods to improve human rights in Australia.

This submission intends to address the following questions from the Issues Paper:

2. How should human rights be protected in Australia?
3. What are the barriers to the protection of human rights in Australia?

View submission

Recommendations in the submission -

Recommendation 1: Develop a national strategy for implementing the outstanding recommendations of the Bringing them Home report.

Recommendation 2: Prohibit racial discrimination in the Constitution. Provide for a special measures exception, on the basis that any special measures conform with the United Nations Committee on the Elimination of Racial Discrimination’s General Recommendation No 32 (2009).

Recommendation 3: Repeal section 25 of the Constitution.

Recommendation 4: Progress the Uluru Statement from the Heart recommendation on a constitutionally enshrined Voice, through the co-design process recommended by the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples.

Recommendation 5: Implement the Uluru Statement from the Heart recommendation on a Makarrata Commission to supervise a process of agreement making between government and First Nations, and truth-telling about our history.

Recommendation 6: Enact Federal human rights legislation to give effect to all of the rights of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. This legislation should:

  1. a)  establish a mechanism to ensure Australian laws comply with the International Covenant

    on Civil and Political Rights and the International Covenant on Economic, Social and

    Cultural Rights,

  2. b)  Provide effective judicial remedies to protect those rights,

  3. c)  train the judiciary, lawyers, prosecutors, law enforcement officers, public servants and federal immigration staff on protecting rights.

Recommendation 7: Human rights legislation should include the economic, cultural and social rights enshrined in the International Covenant on Economic, Social and Cultural Rights, and be modelled on the Bill of Rights in the South African Constitution.

Recommendation 8: If a Member of Parliament or Attorney-General, in their statement of compatibility, finds that a Bill is inconsistent with human rights, the Bill should be withdrawn. If a parliamentary Committee, engaging in mandated legislative scrutiny, finds that a Bill is inconsistent with human rights, the Bill should be withdrawn.

Recommendation 9: Override declarations should not be included in future human rights legislation. Override declaration provisions should be removed from the Human Rights Act 2019 (Qld), and the Charter of Human Rights and Responsibilities 2006 (Vic).

Recommendation 10: Existing and future human rights legislation should provide that all laws must be interpreted in a way that is compatible with human rights, irrespective of their purpose.

Recommendation 11: Seeking a declaration of incompatibility from the Supreme Court should not require referral from a court or tribunal.

Recommendation 12: Under a future federal human rights act, a declaration of incompatibility should affect the validity, operation or enforcement of impugned legislation or statutory provisions. Under existing and future state and territory based human rights acts, declarations of incompatibility should affect the validity, operation or enforcement of impugned legislation or statutory provisions, unless they are federal legislation or subordinate legislation.

Recommendation 13: Under existing and future human rights legislation, members of the public should be able to initiate legal proceedings where they allege that a public authority has acted inconsistently with their human rights. Doing so should not require an existing tribunal or court proceeding.

Recommendation 14: Pass human rights legislation in the remaining State and Territory jurisdictions in Australia that do not have existing human rights Acts.

Recommendation 15: Fully fund the National Congress of Australia's First Peoples, and commit to bipartisan entrenchment of its budget on an ongoing basis.

Recommendation 16: Government funding agreements for Aboriginal and Torres Strait Islander organisations should not impose advocacy restrictions. There should be a political norm, and legal requirement, that funding of Aboriginal and Torres Strait Islander organisations cannot be connected directly or indirectly to their political advocacy.

Recommendation 17: Implement the Redfern Statement.