To our children’s children, the glad tomorrow

Anglo-Australasian Lawyers Society

London, 11 March 2019

This evening, I want to talk about the framing of human rights in Australia. As I see it, we are very much at the crossroads of facing so many issues in the human rights firmament. By December last year, when I had been in my role as President of the Australian Human Rights Commission for about a year and a quarter, a number of threads coalesced in my mind as to what I wanted to do this year.

First, the human rights debates over the last ten years in Australia have been somewhat confrontational. They have often focused on ‘bits’. Sections of Acts—even sub-sections of Acts. Battlelines were drawn. Sides were taken. Politics was drawn in on these sides. Hashtags happened. Social media exacerbated everything. It was not very helpful. ‘A house divided against itself’. It was very ‘reactive’; even radioactive!

So I put my law reform hat on. I drew from my previous experience, as a legal historian and as law reformer.

I came into my present role after a long period in the academic world, and then a ten-year ‘apprenticeship’ in the world of statutory office-holding at the Australian Law Reform Commission.

As a law reformer, how do we solve the current situation? Or at least map a way forward?

We have to open up the conversation. Acknowledge the history of the Commission as Australia’s National Human Rights Institution. Wrap in previous attempts at reform, take things as ‘given’, and generate forward momentum.

I launched a ‘sky anchor’, as it were, framed as a ‘national conversation on human rights’, asking, ‘what kind of Australia do we want to live in?’. I referenced the last stanza of a poem by Indigenous poet, Oodgeroo Noonuccal, ‘A Song of Hope’.

To our fathers’ fathers
The pain, the sorrow;
To our children’s children
The glad tomorrow.

So, combining these two thoughts, the question I am putting is ‘what kind of Australia do we want for our children’s children?’ and using this to frame the national conversation.

We wrote Terms of Reference, aiming high, setting objectives:

• to recommend an agenda for federal law reform to protect human rights and freedoms fully
• to recommend priorities for reforming federal discrimination law to make it more effective and less complex
• to articulate key actions that all governments must take to adequately protect the human rights and freedoms of all Australians, and
• to identify how we can build community understanding and partnerships to realise human rights and freedoms.

And defining desired outcomes:

The unfinished architecture

While the entire Commonwealth of Nations has moved forward by introducing comprehensive human rights protections in legislation—commonly referred to as a Charter of Rights or a Human Rights Act—Australia stands alone in the Commonwealth for not having introduced such protection, at least at the Commonwealth level.

There is already a hashtag, #CharterofRights, and considerable momentum. In the last week of February, Queensland joined Victoria and the ACT in having state Human Rights Acts.

Engaging with this issue again as part of the human rights architecture is part of our conversation. It is also a missing piece in the architectural framework of the Commission.

When the Commission was put on a permanent foundation in 1986, as HREOC, after its predecessor had completed its five years, it was designed in tandem with an accompanying Australian Bill of Rights Act. The functions that the 1981 Commission had in relation to the ICCPR (which Australia ratified in 1980) and other international instruments were to be continued by HREOC, but with the Australian Bill of Rights Act, the functions were to be exercised under that Act rather than the Covenant. The Bill was passed in the House of Representatives, but did not survive the Senate. So the functions under the ICCPR for Australia continued to sit with the Australian Human Rights Commission—even without a formal enactment of the covenant as a ‘Bill of Rights Act’. The functions included a complaints mechanism, but this is rather invisible—at least in the eyes of the public.  But it is a fact that, ever since 1981 the Commission has been handling human rights complaints based on the instruments that are scheduled to our Act.

When I was involved in a panel that was looking at the protection of religious freedom in Australia over the summer of 2017–18, I was struck by the fact that both of the broad sides of the argument saw an answer in having a Charter of Rights as part of the commonwealth protections of rights and freedoms. This was even from those who had been ardent opponents in previous times. But it also struck me that having one was not an end, in and of itself, but the beginning or the unravelling of many more questions. Whether we introduce one; what it would look like; and what role the Australian Human Rights Commission will play, are all key questions, for example.

And in throwing out that sky anchor, and with a law reform perspective, I would also frame the charter of rights issue within the context of the outcomes sought.  It will be one of the actions that should be taken to ensure an effective system to promote and protect human rights—and it is a matter that the Commission has supported for many years. But the decision whether, or not, to introduce a federal Charter is a political decision. (‘Render unto Caesar’) Understanding that is essential to our process too.  So looking at a whole menu of law reform options, including a Charter, is the art, and not making it ‘a Charter or nothing’.

Changing the way decision-makers think? A Charter could include a positive duty, but you could also get some way there through the Code of Conduct for the Australian public service. 

Changing the checks and balances on legislation referable to human rights? We went partly down that road with the introduction of the Parliamentary Joint Committee on Human Rights in 2011, and the requirement to produce ‘compatibility statements’ with human rights.  There are several other committees, some very longstanding, that scrutinise bills and other instruments for compatibility with rights. The processes of scrutiny of legislation in Australia are strong, as the Freedoms Report of the ALRC discusses, but there is also room for improvement. The ALRC identified a number of possibilities, including, for example, a consideration of the level of overlap in the work of the three main scrutiny committees, the range of rights covered by each and the differences in the scrutiny applied.

The beauty of a Charter, and other measures that frontload rights-mindedness, is that they are expressed in the positive.

Discrimination laws

The problem of much of our human rights protections in Australia is that they are framed in the negative—in terms of what you can’t do. This is the way that the set of federal Discrimination laws work; and they rely on a dispute before offering a solution.
This is not to say that our discrimination laws are not important. They directly reflect international commitments and can achieve many positive systemic outcomes.

Similarly in relation to the generic set of human rights complaints: they may achieve the kinds of things that Attorney-General Durack said in 1979 when he was moving one of the early Bills that set up the Commission, in terms of promoting Government awareness and stimulating action, but they are still framed around complaints by individuals—and this is not always the best way to achieve law reform.

Our discrimination laws are also a mishmash, reflective of the context and times of their introduction, over four decades. Amendments have been somewhat haphazard and the effect of some not properly understood. A striking example is the surprise, even ‘shock horror’, that surrounded the discussion in the context of the religious freedom inquiry of the provision in the Sex Discrimination Act that exempted religious schools for certain actions. It became known as the provision that allowed discrimination against gay kids. When the SDA was first passed, in 1984, there was an exemption that was introduced as part of the political comprises of that time. Where the first Bills applied to prohibit discrimination against teachers and students in private (ie non-governmental) schools, but by the time of the final legislation an exemption for schools was included, which meant they could decline to employ people on the basis of marital status and pregnancy: ie those living in de facto relationships or unmarried parents. What was proposed as a temporary exemption became permanent—also permitting discrimination against students or applicants for admission as students on the grounds of marital status or pregnancy by schools established in accordance with the doctrines of a religion or creed if the discrimination is done in good faith in accordance with those doctrines.

Then in August 2013, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) (SD Amendment Act) came into effect, extending the grounds of discrimination in the SDA to include protections against discrimination on the grounds of sexual orientation, gender identity and intersex status in the same areas of life as for other grounds already covered by the SDA, including employment, education and the provision of goods and services.  The exemption was also amended to mirror these provisions. This meant that, to put it into the language that was circulating after the Ruddock panel report was made public, religious schools could discriminate against gay kids. For many, this came as a surprise. Is this really what the 2013 amendments did? The Panel recommended pushing this provision back.

First, any exceptions or exemptions for religious bodies with respect to students on the basis of race, disability, pregnancy or intersex status should be abolished (Rec 8). Second, the SDA exemption had to make the grounds of the discrimination clear (rec 7), using the Victorian state provision as a guide.

The Commonwealth should amend the Sex Discrimination Act to provide that religious schools may discriminate in relation to students on the basis of sexual orientation, gender identity or relationship status provided that:

1. The discrimination is founded in the precepts of the religion
2. The school has a publicly available policy outlining its position in relation to the matter
3. The school provides a copy of the policy in writing to prospective students and their parents at the time of enrolment and to existing students and their parents at any time the policy is updated, and
4. The school has regard to the best interests of the child as the primary consideration in its conduct.

This recommendation caused alarm.  Alarm because many people did not understand the nature of the 2013 amendments and their effect in relation to the exemptions.  Reaction in a way that did not acknowledge the context of the recommendation as a push back on existing law in the short timeframe of an inquiry into protection of religious freedom.

As for the Commission’s position, it is quite clear: the use of exemptions is the wrong way to go and we have advocated their removal from the Sex Discrimination Act since 1992. Quite simply, the current exemption in section 38 should go.

The panel inquiry was also focused on the distinct lack of, or limited, protection of freedom of religion. There is some protection in relation to discrimination on the ground of religion in the context of employment, but it is limited, based on the International Labour Organisation Convention, ILO 111, which has been part of the Commission’s complaint-handling structure since 1986.

There is also inconsistency between the meaning of discrimination in the four federal discrimination laws and extremely complex differences in legal standards, which frankly can only be explained by the different point in time at which each piece of legislation was introduced.

In other areas, such as complaints brought under the AHRC Act, referencing the ICCPR in particular as well as ILO 111 discrimination, there is an unsatisfactory process whereby complaints can be conciliated, but if they are not resolved then the complainant has no legal access to the courts. Such complaints have no pathway to eventual judicial consideration, enforceable orders and binding precedent—only unenforceable recommendations contained in a report to the Attorney-General, after the matter was unable to be resolved through conciliation. Although additional powers were given to the Commission in 1986, to include a power to recommend compensation, the recommendations remained unenforceable.

The analogy I would use is that the legal framework under which the Commission operates is like a house that has had several rooms added over a 30 year period without any thought as to the overall design or architecture of the place.

So there is much that can be done to improve the effectiveness of the domestic human rights architecture.

The aspirational conversation

By October last year, I landed on what I wanted to do. It was to lead an aspirational conversation to uplift the consideration of human rights across law, policy and practice, above and ahead of politics, but recognising where political decisions have their part. So the ‘sky anchor’ is there. The aspiration is that through our work we can truly contribute to the ‘glad tomorrow’ for our children and our children’s children.