The AHRC’s model for a Human Rights Act for Australia

ANU and Amnesty International

Emeritus Professor Rosalind Croucher AM FAAL FRSA FACLM(Hon)

[Check against delivery]

I would like to begin by acknowledging the Ngunnawal and Ngambri people, the traditional custodians of the land on which I am speaking today and pay my respects to elders past, present and emerging and to any First Peoples attending. 

The Australian Human Rights Commission, as the national human rights institution, acknowledges the profound significance of the Uluru Statement from the Heart and affirms its support for the Voice referendum. This is a moment of great importance in the nation’s history.

The impetus for protecting human rights

For the past four years, the Commission has been undertaking a project called Free and Equal, in which we have asked ‘what would make an effective system for the protection of human rights in Australia?” Our proposal for a model Human Rights Act is a major outcome of that conversation. 

To set the scene for my topic this evening, I want to take you back, to 1945 – the final year of the Second World War.^[1] The nations comprising the Allies against Germany and Japan, focused on how to protect human rights in the wake of the horrors experienced during that war. On 26 June, the month following the surrender of Germany, the Charter of the United Nations was signed in San Francisco, at the conclusion of the United Nations Conference on International Organization and came into force on 24 October (now known as United Nations Day), the month after Japan surrendered in the Pacific. Three years before, in the midst of the war in 1942, the Allies had subscribed to the United Nations Declaration. The aim was to establish an international organisation designed to end war and to promote peace, justice and better living for all mankind.^[2] Australia was one of the original signatories.^[3] 

And, on 10 December 1948, the body established as the United Nations adopted the Universal Declaration of Human Rights.^[4] An Australian, Dr HV Evatt, or ‘Doc Evatt’ as he was known, was in the Chair of the General Assembly at that landmark lmoment. This year is its 75th anniversary.

One of the UN’s first goals, was to provide a roadmap to guarantee the rights of every individual everywhere.^[5] In December 1946, it asked the UN Commission on Human Rights to frame an ‘international bill of human rights’.^[6] The first step was the UDHR.

What was distinctive about this Declaration was its move away from an international law that was about the rights of states among themselves, to an international law of human rights, which conferred rights on individual people. That great document represented the coming together of different intellectual, philosophical and political traditions into a set of common commitments for all humankind. The Chair of the Drafting Committee was the indomitable Eleanor Roosevelt, and she is recognised as the driving force for its adoption.

That moment, in 1948, was celebrated and marked across Australia. The Hon Michael Kirby AC CMG, whom many of you may know –even if only by reputation – remembers clearly that the UDHR was given to every schoolchild in Australia, on that flimsy aerogramme paper that some of you may remember. 

The UDHR provided the foundation stone for a pair of binding conventions in the 1960s – the International Covenant on Civil and Political Rights^[7] and the International Covenant on Economic, Social and Cultural Rights^[8] – and the combination of rights guaranteed in these two covenants ‘represent the most authoritative universal minimum standard of present international human rights law’.^[9] Together with the UDHR, these three instruments are known as the ‘International Bill of Rights’. 

Australia was a founding signatory to each of these instruments and, as a nation, we stepped forward in embracing the commitments of these great documents. Australia has signed and ratified each of the key international treaties since then – and it has not been a party-political exercise. Both sides in our system of Westminster government – and in equal measure – have signed and ratified them, undertaking obligations to the world.^[10]

However, little has been done to enact the rights and freedoms protected by these instruments into Australian law – despite the aspirations perhaps encouraged in the schoolchildren of Michael Kirby’s young years. This means that the rights and freedoms enshrined in these international human rights instruments are not directly enforceable in Australia. Our promises to the world, while genuine, are not backed up fully in practice, and the willingness to do so has also fluctuated greatly over the intervening decades.  

The absence of a Human Rights Act does not mean that we do not have a strong tradition of rights and freedoms — we do — and they go back directly to the Magna Carta of 1215, but it does mean that the rights and freedoms enshrined in the international human rights instruments are not directly enforceable in Australia, This means that rights and freedoms can be conveniently ‘distanced’, where the moment or politics pushes the issue. 

So, something like freedom of speech, contained in art 19 of the ICCPR for example, is found implied in the limited freedom of political communication in our federal Constitution (as a legislative limit, not a positive right). It is also expressed in things like the limits on it expressed in defamation law and the constraints of the equitable doctrine of breach of confidence, and the grounds of unlawful discrimination, but if you wanted to pin it down more directly, other than in hyberbole, to explain to, let’s say, ‘the man on the Clapham omnibus’ or ‘the Bondi tram’ (drawing from law students’ lectures in negligence law), you’d be struggling.

The idea of rights is in ‘the vibe’, but it is not in law – as we saw only too well during our COVID years.

From the perspective of the jurisdiction of the Australian Human Rights Commission, the absence of implementation of the treaty commitments is also still unfinished legal architecture. When we were put on a permanent foundation in 1986, the Commission was designed in tandem with an accompanying Australian Bill of Rights Act. The Bill was passed in the House of Representatives, but did not survive the Senate. More recently, the idea was the principal recommendation of the National Human Rights Consultation led by Fr Frank Brennan SJ, over a decade ago, with its report in 2009.^[11] It also did not progress – then under a Labor government, which may have been more inclined to consider it.

Institutionally, then, we are like a doughnut – with a hole in the middle.

Now, the landscape has shifted. There is already considerable momentum in the direction of stronger human rights protections in Australia in the form of dedicated legislative embodiment as Human Rights Acts in Queensland, Victoria and the ACT. There is considerable agitation and advocacy in other State and Territory jurisdictions towards this objective too.

We have also just gone through three years of public health measures in the face of COVID-19 and significant intrusions upon perceived rights and freedoms in consequence. In some way or another, each and every one of us has encountered restrictions – on our freedom of movement, the right to peaceful protest, the ability to engage in public areas without wearing masks, and the requirement to provide personal information for the purpose of contact tracing. Thankfully, most of those restrictions have now gone. But our awareness of the need for the protection of rights, and the vast potential for breaching them without such protection, was brought clearly into focus.

Australians, generally speaking, were willing to go along with the imposition of these measures, guided by public health advice informing the restrictions imposed by Federal, State and Territory governments. And, for the most part, governments openly justified their decisions – the Premiers and First Ministers maintaining a regimen of press conferences, often on a daily basis, that assisted some acceptance of the limits to rights and freedoms that were part of the emergency response. Although the action of the former Prime Minister in having himself sworn in to multiple ministries, without the knowledge of the relevant ministers, or the general public, did not pass official scrutiny.^[12] It led to a censure motion in Parliament and certainly did not pass ‘the pub test’.

The pandemic certainly brought a renewed national focus, indeed, global focus, on the importance of centralising considering rights and freedoms during times of crisis – a greater ‘rights consciousness’. Our challenge now is to ensure that human rights remain central to government decision making and policy design on an ongoing basis – with an embedded ‘rights-mindedness’, as I have called it, and a deeper understanding of our rights in general and about human rights in particular – and especially about what rights are protected, or not, under Australian law.

In part, this is about the public understanding of rights. It is also about the legal architecture for protecting rights and freedoms in Australia and the accountability of governments and public authorities for their decisions.^[13] For my presentation now, I want to focus on the case for a Human Rights Act for Australia – a key piece of our Free and Equal contributions.

The Commission’s Free and Equal work

In December 2018, I threw out a ‘sky anchor’, as I called it, on International Human Rights Day, in announcing Free and Equal. Through the national conversation we have led over the following three plus years, we sought to reimagine Australia’s framework of protections of human rights and freedoms. 

The title of our national conversation was drawn directly from the first sentence of the first article of the Universal Declaration of Human Rights: ‘All human beings are born free and equal in dignity and rights’. 

Through 2019 to 2021, we released an Issues Paper;^[14] three Discussion Papers, ran a submissions process;^[15] we held a spectacular national conference on human rights and associated technical workshops,^[16] featuring the United Nations High Commissioner for Human Rights, Dr Michelle Bachelet; and we conducted a series of roundtables, technical workshops and stakeholder consultations.^[17] It has been an extensive, consultative process.

The project’s final outputs include two position papers on key reform priorities, and a final report – to be completed this year to mark the 75th anniversary of the UDHR. 

The first Position Paper was released in December 2021: Free & Equal: A reform agenda for federal discrimination laws. In this, we set out a reform agenda to modernise our federal discrimination laws, including by remedying deficiencies in the current laws, by placing a greater focus on prevention of discrimination and by introducing co-regulatory approaches that will enable governments and businesses in particular to be better equipped to prevent and deal with discrimination.

But addressing discrimination alone is not enough to ensure that people’s human rights are protected.

The second Position Paper: A Human Rights Act for Australia, launched on 9 March this year, is designed to complement protections against discrimination and deal proactively with issues that discrimination laws cannot address. It presents our case, as the national human rights institution, for the introduction of a federal Human Rights Act in Australia, and an outline of our proposed model and associated reforms.

It seeks to complete the central, missing piece of our domestic legislative framework for the promotion and protection of human rights in Australia – by bringing rights home. 

By enacting a Human Rights Act in Australia we will catch up with every other country in the Commonwealth of Nations by introducing comprehensive human rights protections in domestic legislation. It will also complete the intended design of the Australian Human Rights Commission itself – the ‘hole in the doughnut’ of our institutional legislative architecture. 

My journey – and why we need a Human Rights Act

I must confess that, some years ago, I was a little hesitant about the idea of a Human Rights Act. I was a common lawyer; a property lawyer. I taught Real Property, Equity, Succession. My doctorate was framed through the lens of legal history, so I was very much enmeshed in that kind of legal thinking. The American experience of a constitutional Bill of Rights, and litigation about rights in the courts, so publicly played out, were somewhat discouraging. For those like us in Australia with a deeply entrenched sense of the Westminster system of government and a strong adherence to the separation of powers, such a model does not sit well – particularly the politicisation of appointments to the US Supreme Court that we have all observed.

Our own constitutional drafters took a different approach from the United States. Not having a revolution as a propelling force in our constitutional imagining. We were more reserved. Our Constitution was essentially a deal among the nascent States in a federation. ‘You have lighthouses, immigration; we’ll keep health, education.’ That sort of thing. It was a deal – dividing up the responsibilities among the states, or more particularly, what was going to be allowed to the Commonwealth. Moreover, at that time, we still regarded ourselves as ‘essentially British’.^[18]

It is not that our constitutional tradition was ‘opposed to rights’, but rather it was ‘opposed to judges having power to protect them from interference by legislation’.^[19] Those who drafted our Constitution, as Dawson J observed, ‘preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers’.^[20] 

Parliament is pivotal as the vehicle of rights protection. Whether it has been able to do this appropriately, is a central issue for continued reflection. 

So, what changed my thinking? What made me convinced of the need for a Human Rights Act in Australia? It was not one specific Damascene moment, but a growing realisation, in three parts. And it was also about the model – the model of statutory rights protection that had been developed in Commonwealth countries, which retains and emphasises the supremacy of the Parliament.^[21]

Step one. It was a recognition that, while our sense of rights is embedded deeply in the common law, the common law has its limits. The common law can also get stuck – as has happened, for example, in relation to the protection of serious invasions of privacy. The common law in this country is stuck. The common law needs a great leap forward, as it achieved in Donoghue v Stevenson in relation to negligence (the snail in the bottle case),^[22] but we have not got there yet. Perhaps the ‘age of drones’, is the contemporary equivalent of the ‘age of railroads’ to provide the necessary catalyst for the common law.^[23] But it is a slow process.

The second step. We have a very patchy expression of rights protection, and most of it is framed in the negative – in terms of what you can’t do. This is the way that our set of four federal discrimination laws work – anti-discrimination. This has also, in my view, driven some of the contemporary discourse and criticism about human rights being driven by ‘identity politics’. But you can only bring a complaint to protect yourself against an alleged violation of your rights by identifying through the lens of a ‘protected attribute’ – on the basis of race, sex, age, disability, and for me, as an older person (Age Discrimination Act) who is also married and female (Sex Discrimination Act). It’s only through identifying through the lens of protected attributes that the law protects me.

Our discrimination laws are also reflective of the context and times of their introduction – since 1975 when the first of the discrimination laws was passed in implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. The political compromises which drove these laws, the discrimination laws as they were introduced, have been forgotten. After all, all legislation is a deal – and what was envisaged as a temporary expedient to secure passage of particular legislation easily becomes part of the permanent structure of the law, without thinking of ‘why’? Why was it there? What is its purpose now? Is that purpose still relevant or necessary today? Should the protections go further? Should the definitions be consistent? These are all good law reform questions.

Such concerns drove me to the work I led in relation to discrimination law reform, which was set out in the Commission’s first Position Paper, including 38 recommendations for reform, building on and going further and comprehensively from Respect@Work, which was about sexual harassment in the workplace. 

Step three in my journey was the realisation of the effectiveness of the complaint-handling jurisdiction of the Commission, which it has had since the very first days. 

To give you an idea of that jurisdiction, the Commission is contacted by, on average, at least in pre-COVID times, 15,000 individuals and businesses a year,  seeking information about rights and obligations under federal discrimination laws. They are assisted or referred, and in some instances proceed as complaints. About 2,000 individuals each year (on pre-COVID numbers) pursue the Commission’s formal complaints process — one that is based on alternative dispute resolution. Only a tiny number of those complaints ever end up in court — on average 2–4%; and most participants, both those who complain and those who are complained against, are very satisfied with the professionalism of the process and its outcomes.

If we look at the number of complaints the Commission received and conciliated over 20 years to 2018, for example, the numbers represent successful alternative dispute resolution through conciliation for more than 30,000 people and organisations.^[24]The process can also achieve many positive systemic outcomes through the conciliation process itself that is the heart and soul of the complaints-handling processes, and the principal vehicle of operation of discrimination laws.^[25]

Moreover, analysis of the cost impact of the services provided in complaint handling by the Commission, rather than through a court process, suggests significant savings. Private costs in having matters conducted through the Commission are minimised, typically through limited involvement of lawyers and there are no costs of making a complaint. There are public costs of providing the service, but compared to the public cost of court time and private costs of legal fees in a litigation context, the difference is considerable. At one time it was estimated as being a saving of up to $200 million per annum.

Where the law can work well, and indeed much better, is where it frames the way that people, and workplaces, interact. That they are respectful of difference. That decisions are made in the light of the impact they may have. This is where the discussion about making decisions through the lens of a human rights-based approach comes in. This is a focus not on litigation and courts, but upon the upstream area of the making of decisions, and making laws, that are respectful and have the least intrusion on the rights and freedoms of others. This is what human rights proportionality analysis is all about. 

Human rights-based thinking – through a range of mechanisms – is the kind of law reform that can make a difference.

In our Position Paper, we conclude that the existing mechanisms are insufficient and do not provide the human rights protections that all people in Australia are entitled to. At a personal level, it expresses the completion of my journey as to why a Human Rights Act is indeed needed.

The COVID-19 pandemic showed how important human rights protections are in times of emergency and uncertainty. They help us to discern our priorities, to make difficult decisions that respect human life, and also ensure that other rights are not unnecessarily restricted. As we leave the pandemic behind, it is clear that strong rights protections are needed and wanted to help us navigate our collective future, both through times of calm and in times of crisis.

Our experience with Royal Commissions into Robodebt, and the abuse experienced by persons with disability and in aged care, have exposed egregious human rights breaches, and show how our existing systems are not adequate. 

The experience during COVID-19 also reinforced the need for greater protection of human rights upfront in the policy making process.

The need for better human rights protections in Australia can be summarised by one simple proposition: we should have proper protection of human rights at the national level because everybody’s human rights matter, all the time.

To do so requires that human rights are embedded within the laws of our country, so that they have practical effect for individuals, and are consistently and coherently applied by government. A Human Rights Act would ensure that the rights and freedoms that Australians rightly expect to be – and assume are –protected,^[26] are in fact protected.

Two states and one territory in Australia now have Human Rights Acts. They have made valuable contributions to the law, policy and decision-making processes in those jurisdictions.

At the federal level, the Australian Human Rights Commission has been handling human rights complaints since 1981, through the lens of the international treaties. This is distinct from our jurisdiction to conciliate discrimination complaints. We seek to resolve complaints about breaches of human rights through conciliation. However, unlike the unlawful discrimination pathway, people who complain that their human rights have been breached cannot obtain enforceable remedies through the courts. This seriously limits the effectiveness of conciliation – and the willingness of public authorities to engage.

Human rights are not always respected and protected by governments. Failures to protect human rights can affect all kinds of people, and any lack of respect for human rights degrades society at large. Often, those most harmed by human rights breaches are the most vulnerable among us. 

And look at the cost, when the protection of rights, and particularly in relation to vulnerable people, has broken down. For example, the Law Council suggested that the Royal Commission into Aged Care will cost the Australian Government $104 million over four years; the Royal Commission into Institutional Responses to Child Sexual Abuse cost about $500 million; the Royal Commission into Violence, Abuse and Neglect and Exploitation of People with Disability will cost $527 million, and the Royal Commission into the Protection and Detention of Children in the NT jointly cost the NT and Federal Governments, $54 million.

And that indefinite administrative detention is not unlawful under our existing laws suggests why our current protections are just not enough.

The Human Rights Act model would build on the experience of complaint handling of the Commission over 40+ years and address the weaknesses of the current scheme. In particular, it would provide a pathway to enforceable remedies, and, in that way, substantially improve access to justice and accountability for government decision making. It would provide a greater incentive to think about human rights early, when decisions are made, and before they become complaints. It would be an evolution, not a revolution in our ability to handle and respond to complaints.

Our Position Paper offers a clear and concrete set of proposals to implement a Human Rights Act federally. It is tailored to the unique legal framework at the federal level and would complement the existing human rights protections in two states and one territory. 

Our model retains and emphasises the supremacy of the Parliament. It’s a model that has been described as a ‘dialogue model’ – between the three branches, the executive, the legislative and the judiciary. The possibility of court proceedings is included – without it, you don’t get the accountability leverage you need for improving decision making. But litigation is not the point. It is the positive duty on public authorities to get it right in the first place – by developing policies and framing decisions through the lens of human rights. 

The beauty of a Human Rights Act, and other measures that frontload rights-mindedness, is that they are expressed in the positive – and they are embedded in decision making and ahead of any dispute and they provide a way of resolving intersections of human rights through a proportionality framework. 

A Human Rights Act names rights; it provides an obligation to consider them and a process by which to do it – together supporting a cultural shift towards rights-mindedness becoming part of the national psyche, not just an afterthought.

The model that we have put forward draws on comparative international models and the ACT, Victorian and Queensland models. It builds on the excellent work of the National Human Rights Consultation Committee, and the research and advocacy of the Human Rights Law Centre, the Law Council of Australia, Amnesty International and many other community partners, for bringing rights home. It is a model that retains and emphasises the supremacy of the parliament – an entirely different approach to rights protection from jurisdictions such as the United States of America.

Conclusions

In considering why we need a Human Rights Act for the protection of rights and freedoms in Australia, I think of future generations. I think of my grandchildren. I will finish with a reflection with them in mind.

A number of years ago, my eldest grandson, then aged seven, spotted the Magna Carta on the wall in my study — a lovely facsimile produced by the Rule of Law Institute in 2015 to mark the 800th anniversary of the sealing of that landmark document. He said, rather impressed, ‘Grandma, you have the Magna Carta on your wall!’. How did he know about it? Through ‘Horrible Histories’ on television, of course. It was a story of King John being nasty — exceeding power without accountability to parliament. But how does this lead to a conversation about rights, in Australia today? It is hardly the UDHR that young Michael Kirby took home. 

The Magna Carta is not what you might describe as a highly accessible document, in the medieval Latin of the early thirteenth century. It is iconic, perhaps ‘the vibe’ of our understanding of rights, but over breakfast with your grandchildren?

On access to justice, how about this: 

Nulli vendemus, nulli negabimus, aut differemus rectum aut justiciam!

(To no one will we sell, to no one will we refuse or delay, right or justice)

Human rights-based approaches give us the legal grammar for approaching complex balancing issues. It provides a greater embedding of our promises to the world in Australian law and the pathway to do so. A Human Rights Act for Australia is a missing piece in our domestic implementation of our promises to the world.  In this year, the 75th anniversary of the Universal Declaration of Human Rights, we have the moment to seriously begin the process of bringing rights home. 

Endnotes

[1] The 8th of May marks the day of the unconditional surrender of the German armed forces to the Allies. The war in the Pacific theatre did not end till 2 September that year, with the surrender of Japan.

[2] A recording of Sir Laurence Olivier readding the Preamble of the Charter is included at <https://www.un.org/en/about-us/history-of-the-un/san-francisco-conference>

[3] On the background to the Charter, see <http://www.un.org/en/sections/history-united-nations-charter/1945-san-francisco-conference/index.html>.

[4]  Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).

[5] <https://www.un.org/en/about-us/udhr/history-of-the-declaration>.

[6] A/RES/43 Draft Declaration on Fundamental Human Rights and Freedoms, 11 December 1946. A list of all the meetings involved to achieve the final draft and its adoption by the General Assembly is noted at the beginning of the article by S Pinghua: ‘Pengchun Chang’s Contributions to the Drafting of the UDHR’ (2016) 5(5) Journal of Civil & Legal Sciences 209. DOI: 10.4172/2169–0170.1000209.

[7]  International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[8] 

[9] Manfred Nowak, UN Covenant on Civil and Political Rights, 2nd rev ed, NP Engel, 2005, xx. It took another ten years for the Covenants to enter into force: the ICCPR on 23 March 1976; the ICESCR on 3 January 1976

[10] Apart from the Second Optional Protocol to the ICCPR on the abolition of the death penalty which I am sure would have been supported by both sides of politics, it is an equal split for the remaining 20 signing and ratification moments.

[11] National Human Rights Consultation Report (2009).

[12] ‘Outrage’: <https://7news.com.au/politics/outrage-over-revelation-scott-morrison-secretly-swore-himself-into-three-ministries-c-7881165>; ‘Shock’: <https://www.news.com.au/national/politics/scott-morrison-shocked-minister-by-secretly-swearing-himself-into-cabinet-portfolio/news-story/ac7505f1648a335ccd01f88faf881086>. On 22 August 2022, the Solicitor-General presented his opinion that, while lawful, the PM’s action ‘was inconsistent with the conventions and practices that form an essential part of the system of responsible government prescribed by Ch II of the Constitution’: In the Matter of the Validity of the Appointment of Mr Morrison to Administer the Department of Industry, Science, Energy and Resources, SG 12 of 2022 (22 August 2022) 4. There was also an inquiry by the Hon Virginia Bell AC: https://www.ministriesinquiry.gov.au/system/files/2022-11/ministries-inquiry-report.pdf. 

[13] Accountability was the subject of my presentations: ‘Human rights in the time of COVID: ensuring accountability in the contemporary public health context’, 26th World Congress of Medical Law, Gold Coast, 5 December 2022; and ‘Executive discretion in a time of COVID-19 – promoting, protecting and fulfilling human rights in the contemporary public health context’, 11th Austin Asche Oration in Law and Governance, Australian Academy of Law and Charles Darwin University, 17 November 2022.

[14] Australian Human Rights Commission, Free and Equal: Issues Paper (April 2019) <https://humanrights.gov.au/sites/default/files/document/publication/ahrc_free_equal_issues_paper_2019_final.pdf>.

[15] Australian Human Rights Commission, Discussion Paper: Priorities for federal discrimination law reform (August 2019) <https://humanrights.gov.au/our-work/rights-and-freedoms/publications/discussion-paper-priorities-federal-discrimination-law>; Australian Human Rights Commission, Discussion paper: A model for positive human rights reform (August 2019) <https://humanrights.gov.au/our-work/rights-and-freedoms/publications/discussion-paper-model-positive-human-rights-reform-2019>; Australian Human Rights Commission, Discussion paper:  Ensuring effective national accountability for human rights (August 2019) <https://humanrights.gov.au/sites/default/files/19.10.14_discussion_paper-ensuring_effective_national_accountability_final.pdf>.

[16] ‘Free and Equal Conference’, Australian Human Rights Commission (Web Page, 2019) <https://humanrights.gov.au/free-and-equal-conference#:~:text=The%20Free%20and%20Equal%20conference,rights%20into%20the%2021st%20Century>.

[17] Roundtables: with the United Nations High Commissioner for Human Rights, Dr Michelle Bachelet and Professor Manfred Nowak; Ensuring Effective National Accountability for Human Rights Workshop convened in partnership with the Human Rights Institute at UNSW (August 2019); Technical workshop on improving parliamentary scrutiny of human rights, convened in partnership with the Castan Centre for Human Rights at Monash University and the University of Adelaide (May 2021); roundtables on the positive framing of human rights and the key elements of a federal Human Rights Act (April–June 2021).

[18] R French, ‘Protecting Human Rights Without a Bill of Rights’, John Marshall Law School, Chicago, 26 January 2010, 7. The speech can be found at http://www.hcourt.gov.au/publications/speeches/current/speeches-by-chief-justice-french-ac.

[19] Jeffrey Goldsworthy, ‘Constitutional Implications Revisited’ (2011) 30(1) University of Queensland Law Journal 9, 25.

[20]  Australian Capital Television v Commonwealth (1992) 177 CLR 106, [23], Dawson J.

[21]  See, eg, J L Hiebert, ‘Parliamentary Bills of Rights: An Alternative Model?’ (2006) 69 Modern Law Review 7; S Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49(4) American Journal of Comparative Law 707, 710.

[22]  Wikipedia gives a simple account: https://en.wikipedia.org/wiki/Donoghue_v_Stevenson. 

[23] See, eg, Percy Winfield, ‘The History of Negligence in the Law of Torts’ (1926) 42 Law Quarterly Review 184, 195. 

[24] Looking at Annual Reports from July 1998 to July 2018.

[25] See my article on this topic, ‘”Seeking equal dignity without discrimination”: The Australian Human Rights Commission and the handling of complaints’, (2019) 93 ALJ 571.

[26] More than half of Australians believe we already have a national Human Rights Act: ‘Australia’s Human Rights Barometer: Overwhelming support for a Human Rights Act’ Amnesty International (Web Page, 16 August 2021) <https://www.amnesty.org.au/australias-human-rights-barometer-overwhelming-support-for-a-human-rights-act/>.