A Federal Bill of Rights for Australia – But Disappointing News for ESR Advocates
Today, the National Human Rights Consultation Report recommended that Australia enact a Federal Human Rights Act. According to information on the Human Rights Law Resource Centre, the Committee (the ‘Brennan Committee’) recommends that a federal Human Rights Act should:
- promote a dialogue about human rights between parliament, the executive and the courts;
- protect civil and political rights and possibly social and economic rights, such as the right to adequate housing, the right to health and the right to education;
- require that a Joint Committee on Human Rights review all legislation for compliance with human rights;
- require that federal authorities act compatibly with rights and give proper consideration to human rights in decision making;
- require courts to interpret law compatibly with human rights but not empower courts to invalidate legislation; and
- provide people with effective remedies, including damages, where their human rights are breached.
Further key recommendations in the Committee’s almost 500 page report include that:
- the Federal Government develop a national plan of comprehensive human rights education;
- the Federal Government audit all legislation, policies and practices to ensure human rights compliance;
- Parliament establish a Joint Committee on Human Rights to review all legislation for compliance with human rights (whether or not a Human Rights Act is adopted);
- the Federal Government appoint a Minister responsible for human rights;
- federal departments and agencies develop human rights action plans and report on human rights compliance in their annual reports;
- and the Australian Human Rights Commission receive a strengthened mandate and powers.
While much of the Report is positive in terms of the effective enforcement of human rights, the recommendations on the justiciability of ESR are not what ESR advocates would hope for. The Committee states that complaints involving such rights should be dealt with by the Australian Human Rights Commission as:
‘It is the body most suitable for investigating complaints that the Commonwealth Government has failed to pay due heed to economic and social rights. In the light of the concerns that were raised about the justiciability of economic, social and cultural rights, and the limited experience to draw on from other jurisdictions, the Committee concludes that, where it is not possible to reach a settlement of these complaints by conciliation, recourse to the courts should not be available. The commission could, however, report to the Attorney-General on the matter.’ (p.359)
This will be particularly disappointing for groups such as New Matilda and, more recently, the Human Rights Act for Australia campaign, that have campaigned for a Bill of Rights that will accord equal protection to civil, economic, social and cultural rights.
I will blog further about the many other interesting elements of the Report over the next week.