Promoting and protecting human rights in Australia

The Australian Human Rights Commission: promoting and protecting human rights in Australia 

St Andrew’s College, University of Sydney, 14 July 2022

Emeritus Professor Rosalind Croucher AM FAAL

Abstract

This presentation explores the role of the Australian Human Rights Commission in the context of the international human rights treaties and its establishment as part of the domestic mechanisms implementing treaty obligations. It considers the distinct roles of the Commission in promoting and protecting human rights and the limits of domestic law through the absence of comprehensive human rights legislation. The paper then advocates for the introduction of a federal Human Rights Act, illustrating the difference it could make in the context of immigration detention.

Introduction

I begin my presentation by acknowledging the traditional custodians of this land, and pay my respect to the elders, past, present, and emerging.

I am delighted to be back at Andrew’s again.

I am an Honorary Fellow of the College, in recognition of my time on the College Council, from 1999 to 2002. The Rev Theodora Hobbs and I were the first two women on council — Theodora to one of the three clerical positions, me as a ‘lay’ Councillor. I had been drawn to the College through my interactions with Dr Bill Porjes, when he was in the Veterinary Science Faculty and later Acting Principal of St Andrew’s, and by events at the College, such as the Universities and Schools Dinner when I was Head of Dept then Dean of the Faculty of Law. Through an amendment to the College’s Act of Incorporation in 1998, Bill could become Principal officially, as he was not an ordained Minister. (The amendment to the Act also meant that I could be a Councillor. I had been confirmed into the Church of England and, while a good protestant, I was not technically a Presbyterian, as required under the old Act).

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. I had many questions about the role—both of the Australian Human Rights Commission and of the role of President. It has been an intriguing voyage of discovery.

Human rights and the UN

The context for the Commission and my role is Australia in its engagement with the international community through the United Nations, and the translation of commitments expressed through the ratification of international treaties into domestic law.

The distinct language of ‘human rights’ is customarily associated with the Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly on 10 December 1948. Australia was there from the outset of the UN, being one of the original signatories of the Charter of the United Nations on 26 June 1945.^[1] And Australia’s own ‘Doc’ Evatt was in the Chair as President when the General Assembly on that 10 December.^[2] The UDHR is a landmark document, born out of the horrors of World War Two and the holocaust. It was one of the first decisions of the United Nations. We now celebrate 10 December as International Human Rights Day.

It was envisaged that the Declaration would be followed by binding treaties,^[3] but this took a while. The 1950s were consumed by the Cold War. It took until the 1960s for the United Nations to be able to achieve the two covenants that, together with the Universal Declaration on Human Rights, would be known as the ‘International Bill of Human Rights’: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights (ICESR).^[4]

On 16 December 1966, both Covenants and an Optional Protocol, allowing for individual and inter-State communications, were adopted by the General Assembly. The combination of rights guaranteed in the two covenants are considered as representing ‘the most authoritative universal minimum standard of present international human rights law’.^[5] But it took another ten years for the Covenants to enter into force: the ICCPR on 23 March 1976; the ICESCR on 3 January 1976.

The number of international treaties has grown over the years: there are now nine core international human rights instruments, of which Australia is a party to seven. Each one has a committee of experts to monitor implementation of treaty provisions by States parties. There is also the process of Universal Periodic Review—a government-to-government dialogue about compliance against all of the nine treaties, the UDHR and the Refugee Convention.

In addition to the reporting obligations, by virtue of Optional Protocols, the committees may receive ‘communications’ from individuals who claim that any of their rights enumerated in the Covenant have been violated by the relevant State party and who have exhausted all available domestic remedies.^[6]

By ratifying a treaty, a country voluntarily accepts legal obligations under international law—as to the rights to be respected and the mechanisms for reporting on them. But then it is up to signatory countries to implement treaty commitments into domestic law.

The rights in the covenants do not become part of domestic law until incorporated through legislation.^[7] For example, the Racial Discrimination Act 1975 (Cth) enacted into domestic law the International Convention on the Elimination of All Forms of Racial Discrimination 1969; while the Sex Discrimination Act 1984 (Cth) enacted the Convention on the Elimination of All Forms of Discrimination Against Women 1979.

Establishment of the Australian Human Rights Commission

The ratification of the ICCPR by Australia in 1979 provided the catalyst to the passage of the legislation that established the first iteration of the Australian Human Rights Commission in 1981—the ‘Human Rights Commission’. The second iteration was as the Human Rights and Equal Opportunity Commission, or ‘HREOC’, under the Human Rights and Equal Opportunity Commission Act 1986 (Cth), which became known as the Australian Human Rights Commission in 2008.^[8]

The Commission was designed in tandem with an accompanying Australian Bill of Rights Act. This was passed in the House of Representatives, but did not survive the Senate.

From the perspective of the Commission’s jurisdiction, it is still unfinished legal architecture. To continue along the allegorical lines, we are like a doughnut— with a hole in the middle.

The Commission has grown over the years with the addition of Age and Disability Discrimination laws with accompanying Commissioners to the Commission and other Commissioners of a broader kind—the National Children’s Commissioner and the Aboriginal and Torres Islander Social Justice Commissioner, joining the original roles of President and Human Rights Commissioner—a sum total of eight.

The role of the Commission

The Commission’s ‘mantra’ is that human rights concern ‘everyone, everywhere, everyday’^.[9] The Commission has two distinct roles: the promotion and the protection of human rights.

The promotion aspect is performed principally through education, advocacy and advice—to the Government (briefings of parliamentarians, government departments and agencies, cooperative projects); to Parliament (submissions and evidence to Parliamentary committees; the tabling of reports); and to the broader community (educational resources, community advisory groups, consultations, events and awards).

The protection of human rights is focused largely on the world of individuals, expressed through the complaint-handling functions of the Commission.^[10]

Complaints usually start with just a phone call or email—some form of contact—by, on average, 15,000 people a year, individuals who consider that they have been badly done by in one way or another, and businesses just trying to understand their obligations. They are assisted or referred. About 2,000 people pursue the Commission’s formal complaints process—one that is based on conciliation. Only a tiny number of these ever end up in court; 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. I should add that the inquiries and complaints essentially doubled in response to COVID, and expansions to our jurisdiction under the Sex Discrimination Act have grown the base, even without COVID complaints.

Part of the lesser-known story is that there are three distinct streams of complaints, a fact that reflects the history of the Commission itself.

The first stream concerns complaints of ‘unlawful discrimination’, to refer to discrimination under the four Discrimination Acts. This is the main part of the complaints-handling work, which is conducted on the basis of conciliation. The largest subset of these complaints are ones under the Disability Discrimination Act, concerning the provision of goods and services.

Stats from June 2022. Examples.

Another set concerns the jurisdiction under International Labour Organization Convention 111 (ILO 111), introduced in the 1986 Act, to enable complaints on the basis of any distinction, exclusion or preference made on the ground of, principally: age; medical record; criminal record; impairment; marital status; mental, intellectual or psychiatric disability; nationality; physical disability; sexual preference; trade union activity.^[11] This means that we have complaints on the basis of ‘unlawful discrimination’ under the Discrimination Act, and ‘discrimination’ simpliciter under ILO 111. While they are both managed via conciliation, the big difference is that if a matter under the Discrimination Acts is unresolved, the aggrieved party may pursue the matter in the federal courts. For ILO 111 they end at the Commission, but may form the subject of a report. The findings may include recommendations ‘for preventing the repetition of the act or a continuation of the practice’^[12] and, since 1986, they may also include recommendations for the payment of compensation and the taking of other action to remedy or reduce loss or damage suffered by the person as a result of the act or practice.^[13]

The ILO set is much closer to ‘unlawful discrimination’ complaints and, over time, some of the matters listed as discrimination under ILO 111 have been incorporated into the enforceable protections of other federal Discrimination Acts, including the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth), and some had already been covered in the RDA and SDA. Additionally, the Sex Discrimination Act was amended in 2013 to make discrimination on the ground of ‘sexual preference’ unlawful.^[14] It is only in the areas that are not covered by ‘unlawful discrimination’ that complaints would be brought as ILO 111 discrimination. The remaining field for ILO 111 discrimination is, as I have described it, ‘relic’ jurisdiction.^[15]

The third stream of complaints are ones that raise a breach of human rights under the international instruments that are scheduled to the AHRC Act – essentially all of the main treaties, except the ICESCR. These ‘human rights’ complaints concern acts or practices of the Commonwealth, so any recommendations are directed to the Commonwealth—often meaning the big government departments, such as the Department of Home Affairs, on matters that may involve questions central to government policy, such as immigration.^[16]

Moreover, the acts or practices concerned, either with respect to the remaining ILO 111 grounds or human rights breaches, do not give rise to unlawfulness under domestic law. There is a clash therefore between commitments and expectations under the international treaties and the question of lawfulness under Australian law.

While some recommendations of a procedural or administrative nature may be implemented, recommendations for compensation, when involving Government departments, have not been accepted.

The lack of enforceability has prompted Governments to question the necessity for including a compensation power in the Commission at all, given that the ‘acts or practices’ that may breach human rights, or amount to ILO discrimination, are not made expressly unlawful under the Act. Indeed, there were several attempts from 1997 to 2003—each contested by the Commission and others—and unsuccessful—to remove the power.^[17]

In the context of COVID-19 restrictions, we had a particular set of complaints invoking the right to return to the country and for children to enter or leave Australia for the purpose of family reunification.^[18] These are complaints that do not sit under the category of ‘unlawful discrimination’ in the four anti-discrimination laws, but in this wider ‘human rights’ jurisdiction that links to the treaties. 

Complaints under our Act have essentially doubled with COVID-19, with a huge increase in complaints that sit outside the unlawful discrimination set—masks, travel caps, travel bans, family reunion, people with disability and COVID restrictions, and vaccinations. So, for example, complaints alleging a breach of the ICCPR have gone from 55 in 2017–18 to 112 (2019–20), 588 (2020–21) and 356 in the last year.

This human rights jurisdiction is important, but it is limited, and essentially invisible. The process itself, however, may have impacts for individuals through quiet diplomacy. But if the process does not lead to a successful result through conciliation, then there is no access to judicial consideration, nor to any enforceable remedies.

So much of this work of conciliation continues unnoticed and observed over the years. We can’t speak of the conciliation of unlawful discrimination complaints — indeed there are secrecy provisions in our Act to prevent this. We can only speak in a generic way of things. So publicity only happens if the individuals involved in any of the otherwise confidential processes decide not to keep them confidential. And this is not very helpful.

The reports, required in a few instances, and only in cases of human rights complaints or ILO 111 discrimination, may attract attention—at times—because they do become public of necessity, even though the names may be protected through pseudonyms. Given the clash between policy and international commitments, the reports have generated attention on occasion, and not always complimentary of the Commission. The human rights complaints have also touched a raw nerve at times that is a familiar one in the world of interaction with the United Nations, of resenting challenges to ‘domestic sovereignty’ and the like.

But the Commission’s record over the years speaks for itself. For example, if we look at the number of complaints the Commission has received and conciliated over a period of 20 years, from 1998 to 2018 for example, the numbers represent successful alternative dispute resolution through conciliation for more than 30,000 people and organisations.^[19] And these are not just numbers: for every matter there is an individual who has taken the initiative, sometimes the courageous decision, of coming to the Commission.

The limits of protections of human rights

Our Constitution expressly speaks about some rights, but the ‘rights’ questions in the Australian constitutional context are framed through the lens of limitations on legislative power—and largely through arguing about the implications of such limitations. They are not about personal rights.^[20]

Compare the ‘Bills of Rights’ approach in the US, with its constitutionally entrenched rights and freedoms.^[21] Not driven by wars of independence from other nations, our own Constitution was designed around the concerns of its time: foreign affairs, immigration, defence, trade and commerce, and industrial relations—as well as about ‘colonising activities of France and Germany in the region’. And it was built at a time where concerns about race were a major factor —a legacy that continues to be a stain on our Constitutional framework.

We saw ourselves as ‘essentially British’, as the Hon Robert French AC remarked, and the rights ‘most intensely debated’ were those ‘of the individual colonies as proposed states, vis a vis, the proposed federal parliament’.^[22] It was, in essence, a deal among the States.

While the US approach has given strong protections to rights and freedoms, it is an approach that has led to a politicisation of appointments to the US Supreme Court—one, if I might say, that should not be emulated in our own constitutional context.

It also means that adjudication of questions of rights takes place in a constitutional setting and with a heightened sense of the impact that a judicial decision may have. I note in this respect the recent decision of the Court in Dobbs v Jackson Women’s Health Organization.^[23] This was essentially about the protection of privacy in the US Constitution. But it became about women’s reproductive rights.

In Australia the issues have been framed as moving the issue of abortion out of the criminal law and into the medical arena: to regulate in an appropriate context, not to criminalise, and to protect women from being harassed outside of family health clinics. These are matters for our State and Territory Parliaments—not matters for our High Court.

The model of statutory rights protection in Commonwealth countries is a different one, which retains and emphasises parliamentary supremacy—and the clear separation of powers between the courts and the parliament. 

The introduction of a federal Human Rights Act was the principal recommendation of the National Human Rights Conversation led by Fr Frank Brennan SJ, over a decade ago (Brennan report).^[24] The past President of the Law Council of Australia, Pauline Wright, in her Press Club address, also called for an Australian Bill of Rights, joining many voices to do so, amplifying the conversation—to do at the federal level what the ACT, Victoria and Queensland have done in relation to State and Territory decision making and accountability.^[25] The Commission has long advocated for this outcome and it is a principal recommendation of the paper we are now completing on positive steps to protect human rights in Australia.

The focus of these models is primarily aimed at ensuring that decisions are made with human rights obligations in mind. It is frontloaded, rather than reliant on ex post facto action through complaints or the limited judicial pathways under the Constitution. In any consideration of improving human rights protections in Australia, and especially at the Federal level, such models are instructive. They are framed as ‘dialogue’ models, between the government of the day, as well as the Parliament, the courts and the community.

Following the Brennan report we got the Parliamentary Joint Committee on Human Rights, but we did not get a Human Rights Act – again.

While every other country in the Commonwealth of Nations has moved forward by introducing comprehensive human rights protections in legislation, Australia stands alone for not having introduced such protection.

Why we need one

For a start, domestic legislation is not comprehensive in its protection of the human rights commitments we have made in ratifying international treaties. Recent discussions about freedom of religion, freedom of speech and protection of privacy are singular cases in point. Existing legislation, and the common law, go some way down these roads. But the common law has limits.

Protection of serious invasions of privacy, for example, has got stuck. The common law needs a great leap forward, as it achieved in Donoghue v Stevenson in relation to negligence,[26] 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.^[27]

Another issue is that our discrimination laws are framed in the negative space—what you can’t do—and 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, 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.

The complexity of the system is also seen in the exposition of the three different pathways of complaints handling; and the ‘human rights’ pathway is not easily seen, being referenced to obligations that are not evident in Australian laws. How would the person in the street understand this—that they can make a complaint referable to the ICCPR directly to the Commission? Shouldn’t we all know what our human rights are?

The central fact, moreover, is that our human rights architecture is incomplete – the ‘doughnut’ factor. The hole in the middle is the framing of rights in a positive way—such as may be offered by some form of positive expression of rights and freedoms, as imagined in a federal statute like the initiative adopted in the Human Rights Act in 2004 (ACT), the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2019 (Qld). There are also the older examples of the UK and New Zealand.^[28]

The focus of these models is primarily aimed at ensuring that decisions are made with human rights obligations in mind. It is frontloaded, rather than reliant on ex post facto action through complaints. In any future consideration of improving human rights protections in Australia, and especially at the Federal level, such models will be instructive.

The beauty of a Human Rights Act, and other measures that frontload rights-mindedness, is that they are expressed in the positive: affirming rights and freedoms—not just implying them—and giving a clear anchor for decision making. It frontloads human rights thinking. It is also Australian legislation.

The central challenge of our human rights complaints-handling jurisdiction is that it is a jurisdiction based on international treaties that are scheduled to our Act. It is not about direct obligations under Australian law. A similar challenge affects the operation of the Parliamentary Joint Committee on Human Rights. In both cases this challenge stifles the effectiveness of the processes. 

Under our statutory mandate we are to hold government to account against the standards articulated in the international instruments. For the complaints that reference the international treaties, a challenge is also that the respondent is principally the Commonwealth, because the ‘acts or practices’ that we can consider are those ‘by or behalf of the Commonwealth or an authority of the Commonwealth’, which at many times places us in an oppositional position to government.

Moreover, the acts or practices may well be lawful under domestic law, but contrary to international human rights obligations. So, the Commonwealth has a clear answer to the complaints in domestic law. But in international law, that is no defence.

Let me illustrate by reference to arbitrary detention.

‘Arbitrary detention’

Consider the example of complaints concerning ‘arbitrary detention’, in relation to administrative detention under immigration policies. The dilemma is that, while the detention may be lawful under domestic law, the detention may become arbitrary under the ICCPR.^[29] In Al-Kateb v Godwin (2004) 219 CLR 562 there was a challenge to the legality of administrative detention by the Commonwealth under the provisions of the Migration Act 1958 (Cth). Although there is much discussion about the implications of the case and those that have followed,^[30] the essential principle established by it is that indefinite detention is technically lawful under Australian law. (And we are not talking the early days of the colony as a prison – even they had sentences that would run out eventually).

In the context of our international obligations, however, article 9 of the ICCPR provides that ‘No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’

Article 9 has been the subject of a large amount of Commission work, especially in the context of immigration detention.^[31]

Since 1992, Australia has had a system of mandatory detention. Any non-citizen who is in Australia without a valid visa must be detained according to the Migration Act. These people may only be released from closed immigration detention if they are granted a visa, or are removed from Australia.

Following Al-Kateb, a number of amendments were made to the Migration Act in an attempt to overcome some of its undesirable consequences. In particular, the Minister was given a power to grant a visa to a person in immigration detention, regardless of whether the person met the requirements for that visa. The Minister was also given the power to place a person into ‘community detention’ as an alternative to closed detention. While each of these options offered the potential for avoiding arbitrariness, the powers relied on the discretion of the Minister and the Minister had no duty to consider exercising them.

In a continuing series of reports in relation to human rights complaints, invoking art 9 of the ICCPR, and others, the Commission has sought to point out that the approach to mandatory detention in practice, and particularly closed detention, generally examines the problem the wrong way around.

The question appears not to be asked whether it is necessary for a person to be detained, including whether any risks they may pose to the community can they be appropriately mitigated through conditions. Instead, the approach has been rather to take closed detention as the default position for broad categories of people, and to consider whether there are any exceptional circumstances that would justify their release.

To put this into perspective: the average length of detention has continued to increase, exceeding 700 days for the first time on public record in March 2022. The number of people in long-term detention (over two years) comprised over 34% of the detention population (523 individuals) and 129 people had been detained longer than five years.

It is also well established that prolonged detention is a risk factor for mental ill-health—the negative impacts of immigration detention on mental health worsen as the length of detention increases.^[32] This is of particular concern in the current context, given the consistently high average length of detention in recent years, and the large number of people being held in closed facilities for prolonged periods. And it is detention with no clear ending. At least prisoners know when they can expect to be released.

I should note, however, that the Commission has established constructive and regular forms of engagement with the Australian Border Force and with the Department of Home Affairs as part of seeking to address these broader policy issues, within the current policy settings of government—acknowledging the Commission’s role to challenge policy when it is out of kilter with our treaty commitments; and the ABF’s role in implementing domestic policy.

We are still continuing that conversation.

But, when it comes to our function to consider human rights complaints, domestic law and international expectations are at loggerheads.

And people have been in this limbo for very long periods of time—even over 10 years. I recently pressed the case for seven individuals who have complaints before the Commission, one of whom has been in detention for nearly 12 years. In 2005, after Al-Kateb, a process of review by the Commonwealth Ombudsman of people who had been held in immigration detention for two years or longer, was introduced. This oversight mechanism was aimed at providing better transparency with respect to long-term detainees. What does this mean for people who have between in detention for four times this period—and more? The people I wrote about had each been assessed by the Ombudsman as appropriate for release into the community.

The difference this could make for Al-Kateb

The majority judges in Al-Kateb acknowledged the consequences of their decision. Justice McHugh considered the result ‘tragic’.^[33] Ten years after the decision, Justice Dyson Heydon described his judgement as ‘what you may call the inhumane approach’.^[34]

A small compensation perhaps is that, after the case, Mr Al-Kateb was granted a bridging visa and, in late 2007, he was granted leave to remain in Australia indefinitely.^[35]

In that case, Justice Kirby was in dissent, with Gummow J and the Chief Justice, Gleeson CJ.

The principle of legality, which has been championed as the common law’s protection of rights and freedoms,^[36] did not save Al-Kateb.^[37]

The principle of constitutionalism did not constrain the Migration Act.^[38]

Justice Kirby urged the use of international human rights law as a legitimate and valuable part of the interpretive context. Justice McHugh fervently rejected this approach, notwithstanding the tragedy of the case.

In 2019, in the Mason Conversation of the Gilbert and Tobin Centre of Public Law of the University of New South Wales, former Justice McHugh said that he would have decided Al-Kateb differently if we had a Human Rights Act.^[39]

Compare the situation in the UK, which has had a Human Rights Act since 1998, in operation from 2000. I will use one illustration: the 2004 case of A and others v Secretary of State for the Home Department.^[40]

A detention regime was introduced in the aftermath of the ‘9/11’ attacks in the United States. The regime targeted for indefinite incarceration only suspected international terrorists (not national terrorists). The particular detainees the subject of the litigation were suspected international terrorists who lived in Britain but who could not be sent to their home countries because of a risk that they would be tortured or killed—the non-refoulement principle. But they could not be tried in court following criminal law rules because of a lack of evidence. So they were detained in Belmarsh prison indefinitely.

The case was taken before the House of Lords on the grounds of the right to liberty and non-discrimination. The Government argued that this was a necessary measure to protect the nation during public emergency.

The House of Lords held that the provisions under which detainees were being held at Belmarsh prison were incompatible with the right to liberty and made a declaration to this effect – which they can do under the Human Rights Act..

Following this case, the UK Government acted on the incompatibility declaration, and the regime was replaced with a new ‘control order’ scheme that did not make a distinction on the basis of nationality. This new regime also attracted judicial scrutiny and it was made (somewhat) more human rights compliant over time.

UK academic Conor Gearty commented that this case was ‘an early and great test’ of the Human Rights Act:

Parliamentarians, cabinet Ministers, and civil servants proved themselves inclined to take human rights seriously even when the human rights law itself did not require that they should, and even when they had to pretend they were not doing so. The result is surely a better form of human rights protection, precisely because it is democratically entrenched. It is not imposed from the judicial clouds but grows from below in response to a prompt, not an instruction^.[41]

While the case is also an illustration of the Court using its power to make a declaration of incompatibility, something which we may not recommend in our  model, this is not the only way that a Human Rights Act would make a difference.

In the Australian context there are additional questions about the constitutionality of such a provision which have to be navigated in any discussion of having such a power in a federal Human Rights Act—most notably the High Court’s Momcilovic decision^[42] and understanding how far judicial power stretches.

But the power of an approach to the positive framing of rights, with the foundation of a Human Rights Act, is its impact upstream—on decision making, and, through the PJCHR, before the laws are made.

Moreover, the Commission’s complaint handling pathway involving the international treaties would take a very different complexion if those complaints were framed through Australian law. The PJCHR would also be analysing compatibility of proposed laws within the requirements of Australian law.

We do have a strong sense of rights and freedoms in Australia, but we do not have a commonly understood, let alone embedded, framework to help us grapple with the challenges that confront us.

The language of rights has been on many people’s lips over these past two and half years. It is also a language that inherently has existed in our national character over time and in our common law history and institutions. It is a language that is seen in our early recognition of the importance of suffrage for women, and in the story of William Cooper.^[43]

Human rights had meaning for Cooper and he demonstrated it. The holocaust was a primary catalyst for the Universal Declaration, but it also had a deep impact on Cooper. Horrified at the lack of international condemnation of Kristallnacht on 9 November 1938 and its aftermath in the attacks on Jews in Germany, Cooper led his own protest. On 6 December 1938, he led a delegation to the German Consulate in Melbourne to deliver a petition which condemned the ‘cruel persecution of the Jewish people by the Nazi government of Germany’. It was the only private protest against such action. Cooper was 77, a Yorta Yorta man, and the delegation was of Aboriginal people. Cooper was a leading activist with respect to the treatment of his own people and a founding member of the Australian Aborigines League. Had Eleanor Roosevelt known of Cooper’s actions, she would have been proud of him.

Our system for protecting human rights has not changed significantly for a long time. There is value in continuing our reflections on whether we need to do more to protect human rights in our own Australian way—a federal Constitutional way—and in which the role of the Australian Human Rights Commission is central.

Endnotes

^[1]    http://www.un.org/en/sections/history-united-nations-charter/1942-declaration-united-nations/index.html. On the background to the Charter, see http://www.un.org/en/sections/history-united-nations-charter/1945-san-francisco-conference/index.html.

^[2] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).

^[3]  Replaced by the Human Rights Council in 2006. It was a subsidiary body of the UN Economic and Social Council (ECOSOC).

^[4]  See Manfred Nowak, UN Covenant on Civil and Political Rights, 2nd rev ed, NP Engel, 2005, xxii–xxii.

^[5]  Nowak, xx.

^[6]   Eg, ICCPR Optional Protocol, art 2. The first communication under the Protocol was Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994). The ‘author’ of the ‘communication was an activist for the promotion of the rights of homosexuals in Tasmania. He challenged two provisions of the Tasmanian Criminal Code, ss 122(a) and (c) and 123, which criminalised various forms of sexual contacts between men, including all forms of sexual contacts between consenting adult homosexual men in private. The Committee concluded that these provisions offended art 17 of the ICCPR as arbitrary interferences with Toonen’s privacy and recommended repeal of the sections of the Criminal Code. For an analysis of the case, see: S Joseph, ‘Gay Rights Under the ICCPR—Commentary on Toonen v Australia (1994) 13(2) University of Tasmania Law Review 393; G Greenleaf, ‘Toonen v Australia’ [1994] PrivLawPRpr 33; (1994) 1(3) Privacy Law & Policy Reporter 50.

^[7]  Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286–8.

^[8]    https://humanrights.gov.au/about/news/media-releases/2008  

^[9]    https://humanrights.gov.au/about/news/media-releases/2008

^[10]  In addition to handling human rights complaints, the Commission may conduct inquiries on human rights matters more generally on its own motion. This power is relied upon to support the Commission’s national inquiries into human rights issues. The provisions have remained the same from the original HREOC Act to its present form: Australian Human Rights Commission Act 1986 (Cth) ss 11(1)(f), 20(1)(c).

^[11]  Human Rights and Equal Opportunity Commission Regulations 1989 (Cth).

^[12]  Australian Human Rights Commission Act 1986 (Cth) s 29(2)(b).

^[13]  Australian Human Rights Commission Act 1986 (Cth) s 29(2)(c).

^[14]  Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth).

^[15]   Rosalind Croucher, ‘Righting the Relic—towards Effective Protections for Criminal Record Discrimination’ (2018) 48 Law Society Journal 73.

^[16]   The Reports can be found at https://www.humanrights.gov.au/our-work/legal/projects/human-rights-reports.

^[17]  A discussion of the 1997–1998 Bills in Senate Standing Committee on Legal and Constitutional Affairs, Legislation Committee, Parliament of Australia, Provisions of the Human Rights Legislation Amendment Bill (No 2) 1998 (February 1999). The background to the 1998 Bill is discussed in ch 1 of the Committee’s Report.

^[18]  For individuals alone—Art 12 ICCPR; for family groups—Art 12,17 and 23 of ICCPR; and family groups with children—all of the above plus Arts 3, 8, and 10 of the CRC.

^[19]  Looking at reports from July 1998 to July 2018.

^[20]  McCloy v New South Wales [2015] HCA 34 [30]. See also Unions NSW v New South Wales (2013) 252 CLR 530 at 554 [36]. 

^[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]   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-frenchac.

^[23]  https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

^[24]  National Human Rights Consultation (Report, September 2009).

^[25]  Human Rights Act in 2004 (ACT), the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2019 (Qld). There are also the older examples of the UK and New Zealand: Human Rights Act 1998 (UK); Human Rights Act 1993 (NZ).

^[26] Donoghue v Stevenson [1932] AC 562.

^[27]   See, eg, Percy Winfield, ‘The History of Negligence in the Law of Torts’ (1926) 42 Law Quarterly Review 184, 195.

^[28] Human Rights Act 1998 (UK); Human Rights Act 1993 (NZ).

^[29] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 9; Australian Human Rights Commission, Submission to the Joint Standing Committee on Migration, Review Processes Associated with Visa Cancellations Made on Criminal Grounds (27 April 2018).

^[30] For example: Rainer Thwaites, The Liberty of Non-Citizens: Indefinite Detention in Commonwealth Countries (Hart Publishing, 2014), especially chapters 3 and 4; Juliet Curtin, ‘”Never Say Never”: Al-Kateb v Godwin (2005) 27 Sydney Law Review 355; Matthew Zagor, ‘Uncertainty and Exclusion: Detention of Aliens and the High Court’ 34 Federal Law Review 127; Joyce Chia, ‘Back to the Constitution: the Implications of Plaintiff S4/2014 for Immigration Detention’ (2015) 38(2) University of New South Wales Law Journal 628; Peter Billings, ‘Whither Indefinite Immigration Detention in Australia? Rethinking Legal Constraints of the Detention of Non-Citizens’ (2015) 38(4) University of New South Wales Law Journal 1386; David Burke, ‘Preventing Indefinite Detention: Applying the Principle of Legality to the Migration Act’ (2015) 37 Sydney Law Review 159.

^[31] A recent example is Immigration detention following visa refusal or cancellation under section 501 of the Migration Act 1958 (Cth) [2021] AusHRC 141, a grouped report involving a number of complainants raising similar issues. Because the complaints pre-dated the 2017 amendments, the Attorney-General was obliged to table the report.

^[32]  See, eg, Australian Human Rights Commission, Inspections of Australia’s Immigration Detention Facilities 2019 Report, 134.

^[33] (2004) 219 CLR 562, [31].

^[34] As cited in Burke, ‘Preventing Indefinite Detention’, 159.

^[35] Thwaites, 98.

^[36]   J Spigelman, “The Common Law Bill of Rights” (2008) 3 Statutory Interpretation and Human Rights: McPherson Lecture Series, 9. See also French, “The Common Law and the Protection of Human Rights”, 2.

^[37] David Burke has argued powerfully that the principle of legality was misapplied by the majority, to the extent that overturning the decision is justified: Burke, ‘Preventing Indefinite Detention’.

^[38] Thwaites, ch 3.

^[39] https://www.youtube.com/watch?v=XhAveYy68IM.

^[40] [2004] UKHL 56.

^[41] Fantasy Island (Oxford University Press, 2016) 76.

^[42] Momcilovic v The Queen (2011) 245 CLR 1.

^[43]  Diane Barwick, ‘Cooper, William (1861–1941)’, Australian Dictionary of Biography http://adb.anu.edu.au/biography/cooper-william-5773 (accessed 10 September 2018).