Human Rights, Governance and Decision Making

Forum of Commonwealth Agencies in NSW

2008 Government Business Conference

7 March 2008

Human Rights, Governance and Decision Making

Speech by Mr Graeme Innes, Human Rights Commissioner

I begin by paying my respects to the traditional owners of this land.

Good morning, and thank you for the opportunity to speak at this conference. I'm very pleased to be here.  Firstly as a senior Commonwealth public servant not based in Canberra I immediately warm to this forum. The challenges of interacting with, and learning from, our colleagues are increased greatly by the fact that we aren't located in the city viewed by most commonwealth public servants as the centre of the universe.

Your program for today indicates that I'll be speaking about corporate social responsibility and government agencies.  However, my staff and I thought about our presentation of this issue, and have concluded that it would be more useful for you if I talk about the relevance of human rights to your work more directly.  Most government departments have significant involvement with private sector organisations through government contracts.  However, there are important differences between mechanisms to ensure corporate social responsibility in the private sector, and the responsibilities of government departments to ensure human rights protection.

You might ask, how are human rights relevant to me as a senior public servant. Well, human rights affect everyone, everywhere, every day. But Today, I'll concentrate on how human rights protection could be improved, at a federal level, by the introduction of a Charter of Rights. Because a Charter of Rights has the potential to clarify the role of government departments in the protection of human rights in Australia.

But first - let's start with a quick refresher - what are human rights? Dennis Denuto would define human rights as "its the vibe, its Mabo, its the constitution."

As the responsible Commissioner, I'd be slightly more circumspect than Dennis. They are the basic standards by which we can identify, and measure, inequality and unfairness.  Human rights set out agreed minimum standards for human treatment.

Those minimum standards are set out in international human rights declarations and conventions, to many of which Australia is a signatory, including the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights, and the Universal Declaration of Human Rights - which, interestingly, celebrates its 60th birthday this December.

Human rights are traditionally separated into different categories of rights.  'Civil and political rights' include rights to privacy, free speech, movement, political thought, to found a family and to vote.

'Economic, social and cultural rights' include rights to adequate food and water, health care and education.

There are also various categories of rights which are defined by the nature of the holders, such as the rights of workers, women, children, minority groups, refugees, Indigenous peoples, and people with a disability.

Australia has made commitments under international law, and is obliged to protect the human rights set out in those international instruments to which we are a signatory. Australia has made these commitments because we value equality, and a fair go for everyone.  These concepts go to the core of what human rights are about.  Respecting and protecting human rights is important to who we are as a nation. 

As a result, every level of government in Australia has a responsibility to ensure that human rights are protected and respected. 

But how are international human rights currently protected in Australia?

International conventions don't become part of Australian law unless there is domestic legislation which directly incorporates those conventions.  Most of the international human rights conventions that Australia has ratified have not been fully incorporated into domestic law. This means that many human rights are not legally enforceable in Australia.

There are, however, limited protections for some human rights. A small number of rights are protected by the Australian Constitution, some state and federal laws provide rights protection, and bodies such as Australia's Human Rights Commission and the Ombudsman scrutinise Australia’s compliance with its human rights obligations.

Australian law also provides that all people have a 'legitimate expectation' that administrative decision makers will act in accordance with Australia's human rights obligations. Further, to the extent that current federal, state and territory legislation is ambiguous in its meaning, courts must interpret that legislation in line with Australia's human rights obligations.

HREOC is specifically charged with protecting and promoting human rights in Australia. HREOC achieves this through a range of functions including:

• Examining whether federal laws are consistent with the human rights principles over which the Human Rights Commission has jurisdiction. If we find inconsistencies, we recommend change to the laws.
• Making recommendations about laws that should be made in relation to human rights.
• Investigating individual complaints against the Commonwealth and its agents.
• Conducting National Inquiries, such as the National Inquiry into Children in Immigration Detention.
• Intervening in courts and tribunals where there may be human rights issues at stake.
• Educating the Australian community about human rights issues.

However, the Human Rights Commission's powers are limited. The government is not obliged to implement any recommendations we make about law reform. And we can't make enforceable decisions when resolving complaints about human rights breaches.

Further, the government has no structure in place within which to self monitor the human rights impacts of laws or policies.  As a result, despite there being a national human rights institution devoted to human rights protection, there are serious gaps in human rights protection in Australia. 

There are many examples of these gaps. I'm sure it would shock many Australians to learn that some current laws breach human rights.  But this is the case. Last year, after a year long inquiry into financial and work-related discrimination against same sex couples, HREOC released a report. It revealed that there are 58 laws which discriminate against same sex couples, and breach human rights under the ICCPR.

HREOC has recommended that the laws be amended to remove the discrimination.   The Attorney has indicated that the laws will be changed.  This will be a positive human rights outcome.

But the fact is, despite our international commitment to human rights, our legislative system allows laws to be passed which breach human rights.  There is no mechanism in place to detect such breaches at any stage of the legislative process.  If human rights breaches are identified, there is no imperative for government to remove those laws, or enact them conscious that there is a human rights breach.  This is a serious gap in human rights protection in Australia.

We need a system which provides adequate protection of all the human rights which we have promised to uphold through international agreements. And government bodies, such as those you represent, have an important contribution to make toward achieving this goal.

So how do we achieve better human rights protection in Australia? Human rights must become part of Australian culture, and part of government’s core business.  In practical terms, we must ensure that human rights are taken into account during governmental processes, including law-making, policy-setting and decision-making.

There are various ways that this can be done - and it's far from an easy task.  In my view, a federal Charter of Rights has the highest likelihood of success in initiating cultural change across the board, and a real chance of protecting human rights.

There is a real possibility of the adoption of a federal Charter of Rights at some point in the future.  In the lead up to the recent federal election, the Australian Labor Party stated that, if elected, it would initiate a public inquiry about the best way to recognise and protect human rights and freedoms in Australia.   So the wheels could be in motion.

A federal Charter of Rights can take many forms, and I'm not going to discuss the merits and demerits of different charter models here. Instead, I thought it would be useful to look at some of the general advantages of a Charter of Rights, and at the possible role of government departments in human rights protection.

What is a Charter of Rights? It's a document that sets out the rights and freedoms of all individuals in a country or state. The most common forms of a Charter of Rights are a statutory Charter, or a constitutional or entrenched Charter.

Such a Charter could provide the federal government with a coherent statement of human rights, as a measure against which executive action can be tested.  It has the potential to make all federal bodies responsible for behaving in a way that doesn't breach the rights of individuals.

To have a sneak peak at what a federal Charter of Rights may look like in practice, we needn’t go further than Victoria, which has recently adopted a statutory Charter of Rights. 

The Charter in Victoria has improved the capacity of parliament to protect human rights, by expressly requiring the executive, the legislature and government departments to pay attention to human rights principles at every stage in the law and policy process.

So how could a Charter of Rights improve human rights protection in Australia?

Firstly, through a human rights test for legislation.

If a Charter of Rights was adopted along the same model as the Victorian Charter, all new federal laws could be put through a ‘human rights test'.  Each bill introduced into federal Parliament could be accompanied by a human rights compatibility statement.  Parliament could scrutinise each bill, to ensure its compatibility with the Charter, and could be required to publicly justify the enactment of any law inconsistent with the Charter.

To go back to my example of the 58 laws which breach the rights of same sex couples, such a 'human rights test' could ensure that such laws were not passed in the first place.

Any federal law found to be incompatible with the Charter could be reviewed by federal courts, with the power to issue a declaration of incompatibility.  All declarations could be tabled in federal Parliament, so that Parliament could consider whether the law should be changed.

The introduction of a federal statutory Charter of Rights could require that government bodies be aware of human rights impacts, and ensure governance and decision making is compatible with Australia’s human rights obligations.

A Charter of Rights could require that federal public authorities take the rights into account in policy-setting processes, through internal Human Rights Action Plans, and annual reporting on compliance with the Charter.

Further, a Charter could require that all cabinet submissions be accompanied by a Human Rights Impact Assessment.

A federal Charter of Rights could have an impact on some corporations which have a relationship with government.  Generally, corporations are not legally obliged, like government, to ensure international human rights are protected in Australia.  However, the introduction of a Charter of Rights has the potential to alter the human rights responsibilities of some corporations. If corporations are contracting with government to provide services, they could be obliged to comply with Charter requirements.

Finally, a Charter of Rights could ensure that federal courts and tribunals interpret legislation in a manner that is consistent with the human rights in the Charter.

But the core aim of a Charter of Rights would be to promote a human rights culture within our government. The goal is not to create a series of box ticking requirements to add to the already long list.    Such a process would do little to truly alter the human rights landscape in Australia.  What is required is cultural change, so that human rights questions are central to decision-making. 

The end result of such a cultural change will be a government where service decisions are made with reference to basic rights, such as the right to privacy and family life, the right to a fair hearing, and the right not to suffer degrading treatment.

Human rights relate to the decisions you make everyday - whether it is making an administrative decision, a policy decision or a human resources or corporate services decision. If a federal Charter of Rights was introduced, it could have a significant and positive impact on how government bodies work. It could provide a coherent and principled framework for decision makers, and assist in the development of domestic and international human rights jurisprudence.  Parliamentary procedure would be strengthened, and a heightened interest and understanding of human rights would develop over time.

I look forward to such a future with excitement. It may be a little while off yet - but if and when Australia implements a federal Charter of Rights, we as public servants, should be ready to accept the challenge of contributing to making human rights meaningful for everyone.