A Revitalised National Human Rights Framework for Australia

Marking the 75th anniversary of the Universal Declaration of Human Rights

Fraser Oration

Emeritus Professor Rosalind Croucher AM FAAL FRSA FACLM(Hon)

Introduction

Vice-Chancellor, Duncan Maskell, Dean Matthew Harding, Mrs Tamie Fraser and the Fraser family, Melbourne Law School staff, distinguished guests, friends I would like to begin by acknowledging the traditional custodians of the land on which we are meeting today, the Wurundjeri People of the Kulin nation, and pay my respects to elders past, present and emerging and to any First Peoples attending.

I speak to you at a critical time for the recommitment to – and protection of – human rights in Australia, and globally.

Not only are we marking the 75th anniversary of the Universal Declaration of Human Rights (UDHR), a watershed moment in the history of international human rights system, but we are seeing this system be tested – reminding us of the urgency of respecting and upholding human rights now more than ever. The global community is at a crossroads, witnessing people pay too high a price where there are failures by parties to respect human rights and international law.

We as a nation are also at a crossroads: Next year, we will have a generational opportunity to secure a federal Human Rights Act and begin the task of modernising our out-of-date legal and policy framework for the protection of human rights.

For the past five 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?” I will answer that question and , true to my obligation in delivering an eponymous oration, will also conclude with some reflections on its subject, the Rt Hon Malcolm Fraser AC CH PC

The impetus for protecting human rights

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] (Malcolm Fraser turned 15 that year.) 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] The declaration was drafted in response to the horrors inflicted on countless people and communities during that terrible conflict, including Jewish people, ethnic minorities, people with disability and people of diverse sexualities and genders. It was born of an international consensus that all nations needed to work together to create a better, more inclusive and respectful world for all human beings. An Australian, Dr HV Evatt, or ‘Doc Evatt’ as he was known, was in the Chair of the General Assembly at that landmark moment. This year is its 75th anniversary.

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 remembers clearly that the UDHR was given to every schoolchild in Australia, on flimsy aerogramme paper. He and Doc Evatt were both alumni of Fort St Boys’ High School in Sydney.^[5]

The UDHR provided the foundation stone for a pair of binding conventions in the 1960s – the International Covenant on Civil and Political Rights^[6] and the International Covenant on Economic, Social and Cultural Rights^[7] – and the combination of rights guaranteed in these two covenants ‘represent the most authoritative universal minimum standard of present international human rights law’.^[8] Together with the UDHR, these three instruments are known as the ‘International Bill of Rights’.

The ratification of the ICCPR by Australia in 1979 provided the catalyst to the establishment of the first iteration of the Australian Human Rights Commission in 1981—the ‘Human Rights Commission’ – under the Coalition government of the Malcolm Fraser. It was during the third and final Coalition government he led. In his Second Reading Speech, the then Attorney-General, Sen the Hon Peter Durack, said that its establishment ‘will help Australia to discharge the obligations it has assumed under the covenant’, which was to be ‘the primary point of reference’ for the Commission.^[9] To lead this new Human Rights Commission was the Hon Dame Roma Mitchell AC DVE CVO QC.

Australia was a founding signatory to each of these international 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 over the years, undertaking obligations to the world and reaffirming these human rights as core to our identity, a pillar of our robust democracy. ^[10]

However, in practice, 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 effectively - or fully in reality, 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 politics of the day chooses to push the issue, with little accountability or channels of challenge.

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.^[11] 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 AO SJ, over a decade ago, with its report in 2009.^[12] 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.where the politics of the day chooses to push the issue, with little accountability or channels of challenge.

The pandemic brought a renewed national focus, indeed, global focus, on the importance of 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 framework for protecting rights and freedoms in Australia and the accountability The pandemic brought a renewed national focus, indeed, global focus, on the importance of 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 framework for protecting rights and freedoms in Australia and the accountability of governments and public authorities for their decisions.^[13]

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 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 just completed to mark the 75th anniversary of the UDHR. It has been presented to the Attorney-General and is likely to be tabled in time for International Human Rights Day.

The first Position Paper set out A reform agenda for federal discrimination laws, 18 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.

And so, we released our second Position Paper, putting forward A Human Rights Act for Australia, in March this year.19 It 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, 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 – and completing the intended design of the Australian Human Rights Commission itself – that ‘hole in the doughnut’ of our institutional legislative design.

Just after we launched our paper, the Attorney-General referred to the Parliamentary Joint Committee on Human Rights (PJCHR) an inquiry into a Human Rights Framework for Australia, with express reference to our proposal for a federal Human Rights Act.20 The PJCHR will report in March 2024.

We have made two submissions to that inquiry. The first submission provided an overview of the key findings of the Free and Equal project to date and then set out our vision for a new national human rights framework, featuring a national Human Rights Act at its centre.21 Our second submission complemented the first, with case-studies and illustrations of how a Human Rights Act might make a difference, drawing from examples of HRA jurisdictions, and where the absence of a Human Rights Act exposes weaknesses in our existing human rights protections. Our final report builds from these two submissions, and our Position Papers, to recommend a revitalised human rights framework for Australia.

Why do we need this?

There is currently an implementation gap between the human rights standards that Australia has agreed to internationally, and the actual protections in our laws, policies and processes of government.

Our Constitution protects some rights through limitations on the power to pass legislation – evidenced most recently in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor22 – but does not confer rights on individuals; the common law ‘principle of legality’ helps in interpreting legislation in a way that is consistent with fundamental rights – to a point; and the parliamentary scrutiny of legislation plays an important role, but, like the Commission itself, is hampered by the fact that its legislative reference point does not sit in domestic law.

Mechanisms to raise complaints of breaches of human rights are extremely limited. The Commission has had a complaints jurisdiction, anchored in the international treaties, since its outset, but without any redress to remedial pathways its effectiveness is very limited.

The existing mechanisms are simply insufficient and do not provide the human rights protections that all people in Australia are entitled to – and expect.

Without comprehensive legal protection, education and other measures to promote an understanding of human rights and the processes for monitoring compliance with human rights, Australia is not fully meeting its obligations to ensure that the human rights of all Australians are respected, protected and fulfilled.

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 just not adequate.

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 of the time. To achieve this, we need a Human Rights Act.

I was delighted to read the recommendations of the Disability Royal Commission – in volume 4 of the 12 volume report – released at the end of September, providing strong affirmation for the recommendations of both Position Papers, in relation to the amendments we advocated for in relation to the Disability Discrimination Act, and in the model for a Disability Rights Act, which aligns strongly with the model we propose.

The model

The model advanced in a re-imagined Human Rights Framework is based on the conceptual ‘bookends’ of responsibility and accountability.

Responsibility of public authorities to consider and act compatibly with human rights in policies, legislation and practice – through a positive duty as exists in the state and territory Human Rights Acts. Our model includes added duties to ensure the effective participation of indigenous peoples, persons with disability and children, and to ensure equal access to justice. There is also enhanced parliamentary scrutiny and a comprehensive implementation of human rights, across the ICCPR and ICESCR.

Accountability through actionable breaches for individuals, interpretive provisions that align the understanding of human rights to the international jurisprudence, a national human rights indicator index to measure progress on human rights over time, and an annual statement to parliament in relation to human rights priorities.

Together, responsibility and accountability through a Human Rights Act and Human Rights Framework, support a cultural shift towards rights-mindedness, becoming part of the national psyche, not just an afterthought.

Royal Commissioner, the Hon Catherine Holmes AC SC, identified a commitment to change in culture as crucial. She said in her Preface to the Robodebt report, that ‘whether a public service can be developed with sufficient robustness to ensure that something of the like of the Robodebt scheme could not occur again will depend on the will of the government of the day, because culture is set from the top down’. 23

The Royal Commission concluded that the Robodebt scheme was launched ‘in circumstances where little to no regard was had to the individuals and vulnerable cohorts that it would affect. The ill-effects of the Scheme were varied, extensive, devastating and continuing.’24

Moreover, the report noted, social security recipients include some highly vulnerable groups: people who need access to the system at times of crisis because they are experiencing disadvantage, which might be due to physical or mental ill-health, financial distress, homelessness, family and domestic violence, or other forms of trauma.25

Commissioner Holmes also pointed to the ineffectiveness of what one might consider existing institutional checks and balances – the Commonwealth Ombudsman’s Office, the Office of Legal Services Coordination, the Office of the Australian Information Commissioner and the Administrative Appeals Tribunal – in presenting any hindrance to the scheme’s continuance.

Commissioner Holmes found evidence of failures of members of the Australian Public Service (APS) to live up to the values and standards of conduct expected of them by the Australian community, which are expectations set out in the Public Service Act, the APS Code of Conduct, the Public Governance, Performance and Accountability Act 2013 (Cth) and the Public Interest Disclosure Act 2013 (Cth). 2

How would a Human Rights Act make a difference?

‘Culture’ would be anchored in a framework of human rights.

The public service would have a positive duty to act compatibly with human rights and consider human rights when making decisions. It would be an application of the Royal Commission’s Rec 23.2 Obligations of public servants – ‘The APSC should, as recommended by the Thodey Review, deliver whole-of-service induction on essential knowledge required for public servants’.

A human rights-based approach would improve trust in government decision making, due to guaranteed rights protections, and the increased transparency and accountability it would bring. Public trust enhances respect for the law, provides greater legitimacy for authorities and institutions, and deepens social cohesion. 27

A number of recommendations from the Royal Commission’s report highlight the importance of public authorities designing policies and processes with emphasis on the people they are meant to serve. 28 For example, ‘avoiding language and conduct which reinforces feelings of stigma and shame associated with the receipt of government support when it is needed’, and ‘explaining processes in clear terms and plain language in communication to customers’. 29

With respect to automated decision-making, ensuring human rights are factored into design was an aspect of the work of the Commission in the Human Rights and Digital Technology report.30 Squaring machine learning digital initiatives with the rule of law is clearly necessary – as Terry Carney highlighted in an article in 2018.31 His AAT findings in particular matters and his evidence to the Royal Commission were also central.

Dealing with human rights breaches after the fact can give rise to vast consequences – including unexpected costs from failing to consider human rights early. Robodebt led to a resulting class action, and prompted its own Royal Commission. Dealing with human rights issues early has obvious economic benefits. 32

By considering the human rights impacts of a proposed law or policy upfront, there is also a reduced likelihood that decisions will breach human rights and therefore the risk and costs of court action are avoided.

Concluding thoughts – and reflections on Mr Fraser

This is a pivotal moment when there is wind filling the sails of the aspirational project we launched at the end of 2017. It is also a moment of continuing challenges to human rights, and particularly an increase in racist incidents in our own community.

Recent confirmation from the Executive Council of Australian Jewry and the Australian Muslim Advocacy Network about significant increases in antisemitism, Islamophobia and anti-Arab behaviour, is extremely alarming.

As history has shown us, there is a very slippery slope from showing disrespect to the hatred and dehumanisation that is racism. These have no place in our community.

In considering why we need a Human Rights Act for the protection of rights and freedoms in Australia, I think of future generations.

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 the right to trial by jury, in clause 39:

XXXIX. Nullus liber homo capiatur, vel imprisonetur, … nisi per legale judicium parium suorum vel per legem terrae.

(No freeman shall be taken or [and] imprisoned … except by the lawful judgement of his peers or [and] by the law of the land.)

The recent decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor33 is a faint echo of the idea reflected in clause 39. In the 13th century context, it was about the King peremptorily and unilaterally imprisoning or punishing his subjects. NZYQ concerned the constitutional limits embodied in the separation of powers: that it was for the courts to punish, not the Executive by administrative fiat. ‘Punishment’ in the form of effectively indefinite detention is not for the King – or the Executive. That such questions are tested through the limited protections of our Constitution and result in such finely balanced judgments: 4:3 in the case of Al-Kateb v Godwin (2004) 219 CLR 562; we await the full judgment in NZYQ – tomorrow.

In the context of our international obligations, 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.’ This is the human rights equivalent of clause 39. Article 9 has been the subject of a large amount of Commission work, particularly—but not only—in the context of immigration detention.34

In the period up to his death in March 2015, Mr Fraser, whom we honour this evening, had been very concerned about the extensive exercise of executive discretion without judicial oversight. I venture to say that he would have been fully aware of the significance of NZYQ in resetting the boundary lines between Parliament and the Courts. I expect that he would not have approved of the two weeks that followed in Parliament with the redrawing of the bounds of what the Executive could do and would likely have sat back and thought, ‘here we go again’.

Malcolm Fraser, as a true liberal, would have been an ally in our advocacy for a better embedding of human rights protections through a Human Rights Act and a revitalisation of a Human Rights Framework.35

My predecessor, Emeritus Professor Gillian Triggs, knew him personally and recalled, in a statement at the time of his death, how he tried to make Australia ‘a fairer and better place’. 36 He was a strong defender of the Commission and, as Prime Minister, accepted Australia’s responsibility towards asylum seekers, believing it was wrong to turn his back on old allies. 37 He welcomed Vietnamese asylum seekers into Australia following the end of the Vietnam War – honouring the Refugee Convention, which Australia ratified in 1954 in the Menzies era, and securing bipartisan support. Fraser regarded Vietnamese refugee resettlement, immigration reform and implementing policies to support multiculturalism as his proudest achievements.38 He set up SBS. Approaching the 1980 election, he spoke of government ‘for the service of all Australian people, their freedom and their dignity’, 39 language which is deeply resonant with the first article of the UDHR. Delivering the Gough Whitlam Oration in 2012, Mr Fraser denounced our treatment of refugees and the ‘poisonous debate engaged in by our major political parties’, saying this had done Australia ‘much harm throughout the region’.40

In his post-politics period, his ‘consuming interest’ was Care Australia, which he headed from 1987 to 2002, and built into a leading international welfare agency.

In 2000, we awarded Mr Fraser the Human Rights Medal for his leadership in human rights.41 This is the highest award in our annual awards and has been awarded since 1987. The judges highlighted Mr Fraser’s national leadership in the pursuit of human rights over a long period, including consistent support for reconciliation between Aboriginal and non-Aboriginal Australians and leadership in the fight against racism nationally and internationally. In a piece written in May 1999 for the Council for Aboriginal Reconciliation, Mr Fraser said

Many Australians, especially of my generation, find it difficult to accept this picture of our past because it is so contrary to everything we have been taught. Recognition of the past, facing the past with honesty and openness is essential to the whole process. And that begins to point the way to what should be done.

Facing the past with honesty is what truth-telling processes are about. One of the potent positive values of the Royal Commissions is the vital forum for truthtelling they provide, with hundreds, even thousands, of people courageously sharing experiences. Although the recent Referendum did not secure success, the power of truth-telling has been clearly demonstrated, and the obligation to listen does not stop.

Human rights-based approaches give us the legal grammar for approaching complex balancing issues. The bookends of responsibility and accountability reflected in our recommendations for a new national Human Rights Framework provide 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 capture the wind in the sails and re-imagine and revitalise our commitment to human rights.

Thank you for the honour of delivering this Oration this evening.

More speeches

More speeches by Rosalind Croucher.

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 found 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-nationscharter/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 Kirby tells the story of his Dr Evatt connections in the engaging article, ‘Herbert Vere Evatt, the 
United Nations and the Universal Declaration of Human Rights After 60 Years’ (2009) 34(2) 
University of Western Australia Law Review 238.
6
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 
UNTS 171 (entered into force 23 March 1976).
7
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 
December 1966, 993 UNTS 3 (entered into force 3 January 1976).
8 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
9 Hansard, 10 March 1981. The Preamble to the Act referred to the ICCPR and to the Declaration 
of the Rights of the Child—adopted by the League of Nations in 1924 and the predecessor of the 
Convention on the Rights of Child, which came into force in 1990; the Declaration on the Rights 
of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons—the 
predecessors of the Convention on the Rights of Persons with Disabilities of December 2006; 
and ‘other international instruments relating to rights and freedoms’. 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).
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 A summary of the history of the Australian Bill of Rights Bill is found in George Williams, ‘The 
Federal Parliament and the Protection of Human Rights’, Research Paper 20, 1998–99, 
https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/p
ubs/rp/rp9899/99rp20, 10–11.
12 National Human Rights Consultation Report (2009).
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_pa
per_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-andfreedoms/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_paperensuring_effective_national_accountability_final.pdf>.
16 ‘Free and Equal Conference’, Australian Human Rights Commission (Web Page, 2019) 
<https://humanrights.gov.au/free-and-equalconference#:~: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 <https://humanrights.gov.au/our-work/rights-and-freedoms/publications/free-and-equalreform-agenda-federal-discrimination-laws>.
19 <https://humanrights.gov.au/human-rights-act-foraustralia#:~:text=Australia%20has%20strong%20sense%20of,how%20they%20can%20be%20pro
tected.>.
20 <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/
HumanRightsFramework>.
21 Published as Submission No 1: <https://www.aph.gov.au/Parliamentary_Business/Committees/
Joint/Human_Rights/HumanRightsFramework/Submissions>.
22 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154.
23 Royal Commission into the Robodebt Scheme, Report, 2022, vol 1, iii. The Report was released on 
7 July 2023.
24 Royal Commission into the Robodebt Scheme, Report, 2022, vol 2, 342.
25 Royal Commission into the Robodebt Scheme,26 Royal Commission into the Robodebt Scheme, Report, 2022, ch 23.
27 UN Department of Economic and Social Affairs, Trust in public institutions: Trends and 
implications for economic security (Web Page, July 2021) 
<https://www.un.org/development/desa/dspd/2021/07/trust-public-institutions/>.
28 Royal Commission into the Robodebt Scheme, Report (July 2023) recommendations 10-10.1 
<https://robodebt.royalcommission.gov.au/publications/report>.
29 Royal Commission into the Robodebt Scheme, Report (July 2023) 
<https://robodebt.royalcommission.gov.au/publications/report>.
30 Australian Human Rights Commission, Human Rights and Techology (Final Report, 2021).
31 T Carney, ‘The New Digital Future for Welfare: Debts Without Legal Proofs or Moral Authority?’ 
(2018) USNW Law Journal Forum 1. 
32 Luke Henriques-Gomes, ‘Robodebt: court approves $1.8bn settlement for victims of 
government’s “shameful” failure’, The Guardian (Online) 11 June 2021 
<https://www.theguardian.com/australia-news/2021/jun/11/robodebt-court-approves-18bnsettlement-for-victims-of-governments-shameful-failure>.
33 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154.
34 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

35 In an OpEd in March 2010, Michael Kirby referred to Fraser’s commitment to a constitutional 
Bill of Rights ‘to prevent the kind of abuses in Australian law and public life that he has seen and 
condemned in recent years’: ‘Assessing Malcolm Fraser, the Enigma – “Let nor your heart be 
troubled, comrade”’, <https://www.michaelkirby.com.au/images/stories/speeches/
2000s/2010_Speeches/2445.OpEd-MalcolmFraser%27sPoliticalMemoirs.pdf>.
36 <https://humanrights.gov.au/about/news/opinions/gillian-triggs-malcolm-fraser-he-triedmake-australia-better-and-fairer-place>.
37 <https://www.sbs.com.au/news/article/the-paradoxical-malcolm-fraser/jah0hzk7e>.
38 ‘(John) Malcolm Fraser AC CH PC’ 
<https://aph.gov.au/Visit_Parliament/Art/Stories_and_Histories/
HMC/Prime_Ministers/John_Malcolm_Fraser_AC_CH_PC>
39 <https://electionspeeches.moadoph.gov.au/speeches/1980-malcolm-fraser>.
40 <https://theconversation.com/malcolm-fraser-2012-gough-whitlam-oration-7524>. He 
specifically referenced the ‘after Tampa’ period and the ‘toxic and demeaning debates’ that took 
place and resurgent racism.
41 <https://humanrights.gov.au/our-work/2000-human-rights-medal-and-awards-winners>