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Submission - Proposed WA Human Rights Act (2007)

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Submission of the

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (HREOC)

to the

Consultation Committee for a proposed

WA Human Rights Act

on the

HUMAN RIGHTS FOR WA DISCUSSION PAPER AND DRAFT HUMAN RIGHTS BILL 2007

6 September 2007

 

Human Rights and Equal Opportunity Commission

Level 8, 133 Castlereagh St

GPO Box 5218

Sydney NSW 2001

Ph. (02) 9284 9600

 

 

SUMMARY OF SUBMISSION

  1. The Human Rights and Equal Opportunity Commission (HREOC) makes this submission to the Consultation Committee for the proposed Western Australia (WA) Human Rights Act (the Consultation Committee) in response to its discussion paper on ‘A Human Rights Act for WA’ (the Discussion paper) and a Human Rights Bill 2007 (WA) (the Draft Bill).
  2. While the human rights of people within Australia’s jurisdiction currently receive some protection from the common law, the Australian Constitution and anti-discrimination legislation, HREOC believes there are significant gaps in the existing protection of human rights in Australia.[1]
  3. HREOC believes that a statutory West Australian Human Rights Act (WA HRA) could significantly improve human rights protection in WA by:
    1. Creating a dialogue between the three arms of government – the Courts, the Executive and the Legislature – about human rights protection in WA;
    2. Fostering a culture of human rights in the law and policy making process and in the broader WA community;
    1. Creating a greater level of public transparency and debate about the role of Parliament in protecting human rights;
    1. Preserving parliamentary sovereignty by making sure that Parliament has the ‘last say’ about whether legislation complies with a WA HRA.

QUESTION 1: SHOULD WA HAVE A HUMAN RIGHTS ACT?

  1. HREOC supports the introduction of a statutory WA HRA that reflects a ‘dialogue model’ of human rights protection. The key feature of the ‘dialogue model’ is that it creates a public dialogue between the judiciary, the executive and the legislature about human rights protection by:
    1. Requiring Parliament to consider whether new laws are compatible with human rights;
    2. Requiring public authorities to take into account human rights in their decision-making;
    1. Giving the Superior Courts the power to identify laws that are incompatible or inconsistent with human rights; and
    1. Requiring Parliament to consider whether laws identified by the Courts as incompatible with human rights should be changed.
  2. The ‘dialogue model’ of human rights protection has been adopted in the United Kingdom (UK), New Zealand, the Australian Capital Territory (ACT) and, most recently, Victoria. Reviews of the operation of the Human Rights Acts (HRAs) in the UK and the ACT suggest that the dialogue model can help improve Parliament’s performance in protecting human rights.
  3. In June 2006, the ACT Department of Justice and Community Safety published its report on the Twelve Month Review of the Human Rights Act 2004 (HRA). The report noted that while the HRA's impact on the judicial process had been minimal, the HRA had had a significant impact on the executive and the legislature with a ‘marked increase in the awareness of human rights principles due to the kind of scrutiny now required of proposed legislation, among other things’.[2]
  4. In July 2006, the UK Department for Constitutional Affairs published the Review of the Implementation of the Human Rights Act. The Review found that the Human Rights Act 1998 (UK) (UK HRA) has had a significant, and beneficial, effect on policy formation for three reasons:
    1. formal procedures for ensuring compatibility with human rights have improved transparency and parliamentary accountability;
    2. the dialogue between the judiciary and the parliament has led to laws and policies which are inconsistent with human rights being changed;
    1. the culture and behaviour of public authorities is now more compatible with human rights.[3]
  5. In response to perceived problems with the implementation of the UK HRA, the Review concluded that decisions of the courts under the Act had not negatively impacted on the government’s ability to achieve its objectives in relation to crime, terrorism or immigration; nor had the Act significantly altered the constitutional balance between the Parliament, the Executive and the Judiciary.[4]
  6. One of the most frequently cited argument against HRAs is that they transfer power to an unelected judiciary.[5] HREOC considers that, in the context of a ‘dialogue model’ of human rights protection, this criticism is misconceived. Under the Draft Bill, Parliament retains the sovereign power to enact legislation which is incompatible with human rights if it decides to do so. While the courts have the power to make declarations of incompatibility, it is the Parliament’s role to decide whether or not to change the law.

QUESTION 2: WHAT RIGHTS SHOULD BE PROTECTED IN A WA HUMAN RIGHTS ACT?

  1. The Draft Bill does not contain any of the rights provided for by the International Covenant on Economic, Social and Cultural Rights (ICESCR).[6] The Discussion Paper seeks comments on whether economic and social rights should be included in the Human Rights Act.
The WA HRA should protect both economic, social and cultural rights and civil and political rights
  1. Australia has ratified the ICCPR and the ICESCR. The ICCPR provides that states must take steps to give effect to ICCPR rights and to ensure that victims of violations of the ICCPR have an effective remedy.[7] The ICESCR provides that states must take steps ‘to the maximum of [their] available resources’ to achieve the ‘progressive realisation’ of ICESCR rights.
  2. The Human Rights and Equal Opportunity Commission Act 1986 (Cth) recognises that human rights are indivisible.[8] Protecting economic and social rights create the conditions in which political and civil rights become meaningful. For example, in order to protect the right to life you need to protect people’s right to food and adequate healthcare.
  3. HREOC believes that, as a matter of principle, economic, social and cultural rights and civil and political rights should be treated as indivisible and interdependent. However, HREOC acknowledges there may be practical concerns about vesting responsibility in the courts to adjudicate on the implementation of economic, social and cultural rights, as political and economic considerations may be involved.
  4. These concerns are cited by the WA Government as the reason why a ‘WA Human Rights Act should, at least initially, focus on civil and political rights’.[9] The Discussion Paper observes the ‘commentary and case law relating to civil and political rights is far more developed than that on economic, social and cultural rights’.[10]
  5. The 2006 review of the Human Rights Act 2004 (ACT) rejected calls to incorporate ICESCR rights into the Act on the grounds that:
    1. The thinking on civil and political rights is more developed and, with the exception of South Africa, there are been no serious attempt to incorporate economic, social and cultural rights into HRAs in New Zealand, Canada, the United Kingdom or Victoria;[11] and
    2. Objections relating to the political and financial impact of human rights litigation involving economic, social and cultural rights ‘still find support, despite some arguments to the contrary’.[12]
  6. HREOC acknowledges these concerns. However, instead of adopting an ‘all or nothing’ approach to the question of protecting economic, social and cultural rights, HREOC encourages the Consultation Committee to consider a range of options for protecting economic, social and cultural rights. These options[13] include:
    1. Requiring Parliament to consider the impact of new laws and policies on economic, social and cultural rights in its pre-legislative processes but limiting the functions of the Courts to matters concerning civil and political rights; or
    2. Providing equal protection for civil and political rights and economic, social and cultural rights subject to a reasonable limits clause; or
    1. Providing protection for economic, social and cultural rights subject to the concept of progressive realisation.[14]
The exclusion or amendment of ICCPR rights
  1. The Draft Bill includes many rights set out in the International Covenant of Civil and Political Rights (ICCPR)[15]. However, it leaves out certain ICCPR rights, including the right to marry and the right to self-determination, on the grounds that these rights would be ‘more appropriately included in a Commonwealth Human Rights Act than a State Human Rights Act’.[16]
  2. HREOC considers that the right to self-determination is relevant at a State level and should be included in a WA HRA. HREOC considers that the inclusion of the right to self-determination is vital to promote the effective participation of Indigenous people in decision-making processes undertaken by the WA Government that have a direct impact on their rights and interests.
  3. While HREOC accepts that, in some circumstances, it may be appropriate for the WA Government to provide statutory clarification of the scope of ICCPR rights, HREOC is of the view that a statutory provision that incorporates an ICCPR right should, at a minimum, provide the same degree of protection as the provision of the right in the ICCPR itself. Put simply, it is not appropriate to ‘water down’ rights included in a WA HRA.
The WA HRA should better protect the right to non-discrimination
  1. HREOC observes that the right to non-discrimination is a fundamental principle of international law. As one commentator observed ‘discrimination is at the root of virtually all human rights abuses’[17] and can impact on people’s right to equal enjoyment of both civil and political rights and economic, social and cultural rights.
  2. Clause 19 of the Draft Bill provides that every person has the right to enjoy his or her human rights without discrimination. Relevantly, ‘human rights’ is defined in cl 3 to mean the rights, freedoms and entitlements in Part 2. The protection which cl 19 provides is much narrower than the protection provided by article 26 of the ICCPR. Relevantly, article 26 provides:

    All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

  3. International jurisprudence has confirmed that article 26 of the ICCPR protects against discrimination in relation to economic, social and cultural rights as well as civil and political rights.[18] For example, in Broeks v the Netherlands the United Nations Human Rights Committee (UNHRC) found article 26 ‘prohibits discrimination in law or practice in any field regulated and protected by public authorities’, including in this case social security legislation.[19]
  4. HREOC considers that the WA HRA should include a provision modelled on article 26 of the ICCPR. This will require the WA Government to ensure that all legislation enacted by the WA Government is non-discriminatory, regardless of whether it concerns civil and political rights or economic, social and cultural rights.
Only natural persons should have human rights
  1. Clause 5 of the Draft Bill states ‘only natural persons have human rights’. HREOC believes this is correct approach. Conceptually the ‘rights’ of corporations are distinct from human rights. In principle, the purpose of human rights is to protect the inherent dignity of all members of the human family.[20] In practice protecting corporations’ human rights may give corporations a vehicle to advance commercial interests.[21] A WA HRA should protect the rights of every natural person in WA’s jurisdiction, regardless of their immigration status.

QUESTION 3: WHAT FORM SHOULD A HUMAN RIGHTS ACT TAKE?

The WA Human Rights Act should be an ordinary act of parliament
  1. There are various ways in which a WA HRA might be incorporated into Australian law, including by Constitutional amendment or by statute. HREOC believes that the statutory model that preserves parliamentary sovereignty is the most appropriate model. The United Kingdom (UK), New Zealand, the Australian Capital Territory (ACT), and Victoria have all introduced statutory Human Rights Acts.
  2. While HREOC believes it is important that a WA Human Rights Act be able to adapt to changing attitudes and circumstances, it is also vital that rights are not altered – or removed – lightly. Therefore HREOC considers the WA HRA should contain a provision requiring proposed amendments to the HRA to be scrutinised by a parliamentary committee. Such a provision would not prevent future Parliaments amending the HRA but it would signal the Government’s commitment to the protection of human rights and its intention that the HRA not be amended without careful consideration.
The WA HRA should have a preamble
  1. HREOC believes that the WA HRA should have a preamble modeled on the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Victorian Charter of Rights). This preamble sets out in plain, clear language the community values that underpin the Charter, including that ‘human rights belong to all people without discrimination. The Victorian Consultation Committee intended that the preamble be used in schools and for broader community education about human rights.[22]
  2. HREOC believes that the success of the WA HRA will be measured, in part, by its ability to foster an understanding of, and respect for, human rights within the WA community. Therefore, HREOC recommends including a preamble as an educative tool to promote the objects of a WA HRA. The preamble should also recognise the special importance of human rights for the Aboriginal people of WA.

QUESTION 4: HOW SHOULD A WA HUMAN RIGHTS ACT PROTECT HUMAN RIGHTS?

The WA HRA should ensure human rights are considered in the law and policy making process.
  1. Human rights should play a vital role in the law and policy making process. In HREOC’s view, requiring bills to be accompanied by a human rights compatibility statement will increase parliamentary accountability and transparency in relation to human rights issues and assist in the development of a robust culture of human rights compliance at all levels of government.
  2. Clause 31 of the Draft Bill provides that when a Bill is introduced to Parliament, a written statement of compatibility must be laid before the House before the Bill receives its second reading. The statement of compatibility must contain the following information:
    1. Whether, in its maker’s opinion, the Bill is compatible with human rights; and
    2. If the opinion is that the Bill is not compatible –
      1. the nature and extent of the incompatibility; and
      2. why the Bill should nevertheless be considered by the House.
  3. While HREOC supports the requirement that bills be accompanied by statements of human rights compatibility, HREOC believes it is important that the maker of the statement be required to provide reasons that justify his or her opinion that the bill is compatible with human rights.
  4. HREOC also considers that if the bill is not compatible with human rights the maker should be required to provide the following information:
    1. The nature of the right that is limited;
    2. What is the purpose of limiting the right;
    1. The nature and extent of the limitation;
    1. Why the limitation is necessary to achieve the purpose;
    2. Whether any less restrictive means is reasonably available to achieve the relevant purpose. [23]
  5. Where no statement of compatibility has been made about legislation enacted after the WA HRA, the legislation will still be valid.[24] However, HREOC believes that laws that are not accompanied by a compatibility clause should be subject to an automatic two year sunset clause. This would prevent Governments being able to circumvent the parliamentary scrutiny provisions and ensure that the legislation’s compatibility with the HRA is scrutinised at some point.
A WA HRA should establish a Parliamentary Committee on Human Rights
  1. HREOC believes that parliamentary committees play a vital role in scrutinising proposed legislation and facilitating public debate about the human rights implications of proposed laws.
  2. HREOC considers a WA Human Rights Act should establish a Parliamentary Standing Committee on Human Rights. The Committee could inquire into questions referred to the Committee by Parliament.
  3. The Committee should be dedicated to considering human rights issues. HREOC considers that this is preferable to expanding the role of existing legislative scrutiny committees in WA[25], because it enables a permanent committee to build expertise in analysing human rights issues. The Committee should be a joint committee to minimise partisanship and increase legitimacy. The Committee should also have adequate time and resources to properly assess the human rights implications of proposed legislation.
A WA HRA should require Courts to interpret laws consistently with human rights
  1. Clause 33(3) of the WA HRA provides that ‘in interpreting a human right, any international jurisprudence that is relevant to the human right may be considered in addition to any judgment of an Australian court of tribunal’.[26] Significantly, cl 33(4) adds that is deciding whether to consider international jurisprudence under cl 33(3), the following matters must be taken into account:
    1. the desirability of being able to interpret a human right by reference to the ordinary meaning of its text taking into account this Act’s underlying purpose of object and without reference to the jurisprudence;
    2. the undesirability of prolonging proceedings without compensating advantage;\
    3. the accessibility of the jurisprudence to the public.
  2. HREOC considers that s 33(4) unduly fetters the power of the Court to take into account relevant international human rights principles. HREOC observes that s 33(4) is narrower than the common law position which holds that where an act gives effect to an international convention the meaning of the substantive provision is to be ascertained by reference to the relevant provision of that convention.[27] HREOC recommends s 33(4) should be removed from the Draft Bill.
  3. Clause 34 of the Draft Bill provides that where a law is ambiguous, obscure or will lead to a result that is manifestly absurd or unreasonable it must be interpreted in a way that is ‘compatible with human rights in so far as it is possible to do so consistently with the purpose or object underlying the written law’. This appears to be a mere codification of the common law principle that rights, freedoms and immunities recognised as fundamental will not be taken to be abolished, suspended or adversely affected in the absence of ‘a clear expression of an unmistakable and unambiguous intention’.[28]
  4. HREOC recommends that clause 34 be replaced with a provision modeled on s 32 of the Victorian Charter of Rights. Section 32 is broader in scope than cl 34 because it requires Courts to interpret ‘so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’ (emphasis added).
A WA HRA should allow the Courts to make a declaration of incompatibility.
  1. HREOC believes that while courts should not have the power to strike-down legislation that is inconsistent with the WA HRA, a superior court should be able to declare if certain laws are incompatible with the HRA.
  2. Clause 36 of the Draft Bill provides if it is not possible to interpret a law or provision consistently with human rights than the Western Australian Supreme Court may make a declarations of incompatibility. A declaration of incompatibility does not have any impact on the validity on continuing operation of the legislation.
  3. HREOC also welcomes the fact that under cl 37(4) of the Draft Bill, the Minister responsible for administering the law in question must table a written response to the declaration of incompatibility in Parliament within six months of the Court delivering its final judgment.
  4. HREOC considers that in addition to the statutory requirement that the WA Attorney-General should be given notice of proceedings where a declaration of incompatibility might be made[29], the WA Human Rights Commission[30] should also be given notice of such proceedings.

QUESTION 5: WHO SHOULD BE REQUIRED TO COMPLY WITH HUMAN RIGHTS RECOGNISED IN THE WA HUMAN RIGHTS ACT?

  1. The WA Government's preferred model, as set out in Parts 3 and 6 of the Draft Bill, is that, ‘at least initially, only State government departments and agencies should be required to comply with the human rights set out in a WA Human Rights Act’. The term ‘government agency’ is defined in cl 39 of the Draft Bill as:
    1. a department referred to in the Parliamentary and Electorate Staff (Employment) Act 1992 section 3(2);
    2. a department of the Public Service;
    3. an organization listed in the Public Sector Management Act 1994 (Cth) Schedule 2 column 2;
    4. the police force of Western Australia
    5. a local government
    6. a regional local government
    7. a body or office that is established for a public purpose under a written law;
    8. a body or office that is established by the Governor or a Minister
  2. Clause 39 of the Draft Bill also states a government agency is not:
    1. The Governor;
    2. A House of Parliament or a Parliamentary committee;
    3. A court or tribunal when performing its judicial functions;
    4. A person holding a judicial or other office pertaining to a court or tribunal being an office established by a written law that establishes the court or tribunal
  3. HREOC recommends that the definition of ‘government agency’ in cl 39 be replaced with a broader definition of ‘public authority’ modeled on s 4 of the Victorian Charter of Rights.
  4. Under s 38 of the Victorian Charter of Rights it is ‘unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consider to a relevant human right’. The definition of public authority in s 4 of the Victorian Charter of Rights includes ‘an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise)’. This definition if broader than the Draft Bill’s definition of ‘government agency’ and captures private bodies performing public functions.
  5. HREOC considers the approach adopted in the Victorian Charter of Rights is preferable to that proposed in Draft Bill because it looks at what is being done, not who is doing it. The term ‘government agency’ does not cover government contractors or community groups which provide services funded by government. The interaction between the public sector and the private sector means that many private companies now undertake public functions. In recognition of this reality, HREOC believes the obligation for government agencies to act compatibly with human rights should be extended to private companies undertaking public functions.

QUESTION 6: WHAT SHOULD HAPPEN IF A PERSON’S HUMAN RIGHTS ARE BREACHED?

  1. Clause 40 of the Draft Bill provides that Government agencies must act compatibility with human rights. Clause 41 of the Draft Bill provides that if:
    1. A person may ask a court or tribunal for any remedy in respect of an act or decision of a government agency on the ground that the act or decision is unlawful; and
    2. The unlawfulness of the act or decision is not because of section 40

    The person may ask for the remedy on grounds that include any unlawfulness of the act or decision that is because of section 40.

  2. Clause 40(2) excludes the award of damages or any other pecuniary remedy for an injury or loss suffered as a result of a breach of s 40. This is similar to the approach adopted under the Victorian Charter of Rights.
The WA HRA should provide ‘effective remedies’ for HRA breaches
  1. HREOC believes a WA HRA should create a freestanding action for legal remedies by a person who is a victim or potential victim of an act or decision by a public authority which is unlawful under the WA HRA. This could be achieved by introducing a provision modelled under s 7 of the UK HRA which provides that:

    A person who claims that a public authority has acted (or proposes to act) in a way which is incompatible with a Convention right may: (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings.

  2. In order for such an action to be meaningful the Courts should also be able to provide effective remedies. This could be achieved by introducing a provision modelled on s 8 of the UK HRA. Relevantly, s 8(1) provides that:

    In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or make such order within its powers as it considers just and appropriate.

  3. Under s 8(2) Courts in the UK have the power to award damages but only if such an award is ‘necessary to afford satisfaction’ to the complainant.[31] In other words, if another remedy can satisfy the complainant, damages should not be awarded. To date, there have been three awards of damages under the Human Rights Act 1998 (UK).[32]
  4. In contrast, the Victorian Charter of Rights expressly excludes the Court from awarding damages for a breach of HRA rights unless a right to damages was already available under an existing law.[33] This reflects the approach of the Victorian Human Rights Consultation Committee who argued that ‘removing damages from the Charter of Rights represents a balance between the need for a remedy and not imposing potentially significant additional costs upon government’.[34]
  5. However, in HREOC’s view, the approach taken under s 8 of the UK HRA is the most consistent with the principle set out in article 2(3) of the ICCPR that if a person’s rights under the ICCPR have been violated that person has a right to an ‘effective remedy’.[35] The UNHRC has stated an ‘effective remedy’ requires ‘reparation to individuals whose Covenant rights have been violated’. Reparations can ‘involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition’.[36]
  6. Therefore HREOC considers that, consistent with article 2(3) of the ICCPR, under a WA HRA a court could be empowered to order a range of remedies including:
    • a declaration that the authority has acted unlawfully;
    • an injunction preventing the authority giving effect to an unlawful decision;
    • an order setting aside an unlawful decision, and where appropriate ordering that the decision be made afresh according to law;
    • appropriate compensation and reparation;
    • such other remedies as are 'just and appropriate’.[37]
  7. While HREOC recognises concerns about the possible financial implications of awarding damages, in some circumstances the award of damages may be the only effective remedy for a breach of human rights. HREOC notes that it may be possible to allay concerns about the financial implications of awarding damages by confining the award of damages to such circumstances in which damages are the only effective remedy.[38]
  8. HREOC considers that the WA HRA should have a provision on standing which makes it clear who can and can not bring an action against a public authority for acting unlawfully under the WA HRA. HREOC considers a person who is a victim or potential victim of a breach of human rights by a public authority should be able to commence court proceedings against a public authority that is alleged to have acted unlawfully under the WA HRA. Corporations should not have standing to seek a remedy under the Charter of Rights.
  9. HREOC notes that sometimes a person whose rights have been violated may not have the capacity or the resources to seek a remedy. A WA HRA should enable a person or entity to bring an action on behalf of a person who is a victim or a potential victim of a breach of human rights by an unlawful act by a public authority (consistent with relevant court rules). This will still require a person to have a sufficient nexus to the alleged infringement or denial of a Charter right.

QUESTION 7: IF A HUMAN RIGHTS ACT WAS INTRODUCED WHAT WIDER CHANGES WOULD BE NEEDED?

A WA Human Rights Commission should be established
  1. HREOC believes a WA HRA should establish an independent WA Human Rights Commission to monitor human rights protection under the WA HRA, advise government on compliance with HRA rights and promote public understanding and awareness of a WA HRA.
  2. HREOC believes the WA Human Rights Commission should be created by expanding the functions of the WA Equal Opportunity Commission and the WA Commissioner. This approach was adopted in:
    1. The ACT: The Human Rights Act 2004 (ACT) created the position of the ACT Human Rights Commissioner which is filled by the existing Discrimination Commissioner; and
    2. Victoria: The Victorian Charter of Rights renamed the Equal Opportunity Commission of Victoria the Equal Opportunity and Human Rights Commission (Vic) and conferred additional functions on the Commission to promote understanding of, and compliance with, the Victorian Charter.
  3. HREOC notes that the preferred approach of the WA government is to give the existing WA Equal Opportunity Commission the additional function of promoting public knowledge of, and respect for, the human rights set out in a WA HRA. The WA Government has indicated it does not consider it necessary to give the Commission additional functions such as monitoring compliance with the Act amongst government departments and agencies, or becoming involved in legal proceedings before the courts.[39]
  4. HREOC considers that the limited role envisaged for the WA Human Rights Commissioner does not recognise the full potential of the Commission to promote understanding of the WA HRA not only within the community, but within the judiciary and all levels of government.
  5. Relevantly, the UK DCA review concluded that the difficulties which have arisen in relation to the UK HRA lie in the way the UK HRA has been implemented. The Review found that barriers to the effective implementation of the UK HRA had arisen from:
    1. Myths and misconceptions about the role and effect of the UK HRA;
    2. Lack of adequate training and guidance of public servants about human rights compliance;
    3. Lack of human rights education among the public sector and the general public.[40]
  6. The UK DCA Review emphasised the need to provide policy and decision makers with appropriate training, guidance and legal advice in order to properly balance individual rights with the interests of the wider community.
  7. HREOC considers that in addition to an education function to promote understanding of, and respect for, a WA HRA, the WA Equal Opportunity Commission should also be given the following statutory functions:
    1. Appearing as intervener in court proceedings involving the interpretation and application of the WA HRA;
    2. Preparing an annual report on the operation of the HRA to be tabled by the Attorney-General in Parliament;
    3. Examining enactments to see if they comply with the HRA;
    4. Reviewing practices of public authorities, including Government Departments, for HRA compatibility;
    5. Assisting the Attorney-General in the review of the WA HRA under cl 43 and advising the Attorney-General on anything relevant to the operation of the WA HRA.[41]

QUESTION 8: WHAT ELSE CAN THE GOVERNMENT & THE COMMUNITY DO TO ENCOURAGE A CULTURE OF RESPECT FOR HUMAN RIGHTS IN WA?

Education about the WA HRA
  1. The introduction of a WA HRA should be accompanied by a community education campaign which promotes understanding about the operation of the WA HRA. The campaign should be accessible to all groups within the community and provide information in a range of formats that are sensitive to Indigenous languages, literacy, location and the disadvantaged status of Indigenous peoples.
  2. HREOC considers that education modules about the WA HRA should be incorporated into the WA school curriculum. These modules will be essential in fostering a respect for human rights amongst future generations of Western Australians.
Review of Human Rights Act
  1. HREOC supports the inclusion of cl 43 of the Draft Bill which provides for a review of the operation of the WA HRA every four years. Cl 43 states the Review must consider whether the WA HRA should be amended:
    1. to include additional human rights; or
    2. to require additional persons to act compatibly with human rights; or
    3. to provide additional remedies for any failure to act compatibly with human rights.
  2. HREOC believes this review provision will allow Parliament to assess whether the HRA is working effectively.

Footnotes

[1] For further discussion see John von Doussa QC, ‘In Defence of Human Rights’, Address to the UNSW Law Society’s Speakers Forum, 24 August 2006; Commissioner Graeme Innes ‘The Human Rights and Equal Opportunity Commission and the Protection of Human Rights at a federal level’, Address to the ANU Bill of Rights Conference. Both speeches are available at https://humanrights.gov.au/about/news/speeches/speeches-human-rights-issues.

[2] ACT Department of Justice and Community Safety, Human Rights Act 2004: Twelve-Month Review (June 2006). http://www.jcs.act.gov.au/HumanRightsAct/Publications/twelve_month_review.pdf

[3] United Kingdom Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act, (2006), 4.

[4] United Kingdom Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act, (2006) 4.

[5] Department of the Attorney General, Government for Western Australia, ‘Human Rights for WA Discussion Paper’, 2007, 17.

[6] Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

[7] HREOC notes that the United Nations Human Rights Committee (UNHRC) has stated that all branches of government, and other public or governmental authorities, at whatever level – national, regional or local – are in a position in engage with a State’s responsibility under the ICCPR. See United Nations Human Rights Council, The nature of legal obligations imposed on state parties to the covenant, General Comment no. 31, UN Doc CCPR/C/21/Rev.1/Add.13 (2004) [4].

[8] Section 10A of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) provides that HREOC is required to ensure that its functions under the Act are performed ‘with regard for the indivisibility of human rights’.

[9] Department of the Attorney General, Government for Western Australia, ‘Human Rights for WA Discussion Paper’, 2007, 16.

[10] Department of the Attorney General, Government for Western Australia, ‘Human Rights for WA Discussion Paper’, 2007, 16.

[11] The HRA of Human Rights and Responsibilities Act 2006 (Vic) does make explicit protection for the protection of Aboriginal identity, culture and language. While the Human Rights Act 1998 (UK) protects most civil and political rights it also protects the rights to education and the right to property.

[12] ACT Department of Justice and Community Safety, Human Rights Act 2004: Twelve-Month Review (June 2006), 49.

[13] For further discussion of these options see ACT Department of Justice and Community Safety, Human Rights Act 2004: Twelve-Month Review (June 2006), 49.

[14] In considering whether laws or actions of government agencies were inconsistent with economic, social and cultural rights the Courts would be required to take into account the concept of progressive realisation which recognises that the capacity of State Parties to realise economic, social and cultural rights may be subject to resource limitations.

[15] Opened for signature 16 December 1966, 999 UNTS 171 (generally entered into force 23 March 1976, article 4 entered into force 28 March 1978).

[16] Department of the Attorney General, Government for Western Australia, ‘Human Rights for WA Discussion Paper’, 2007, 17.

[17] S Joseph, M Castan and J Schultz, The International Covenant on Civil and Political Rights: Case Materials and Commentary, 2nd ed, Oxford University Press, 2004, p680, para [23.01]

[18] Broeks v Netherlands, Communication No 172/1984; see also S Joseph, M Castan and J Schultz, The International Covenant on Civil and Political Rights: Case Materials and Commentary, 2nd ed, Oxford University Press, 2004, p686.

[19] Broeks v Netherlands, Communication No 172/1984.

[20] Universal Declaration of Human Rights G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

[21] For example, the Canadian Supreme Court has found that placing health warnings on cigarette packets violates corporation’s right to free speech. See McDonald Inc v Canada [1995] 3 SCR 199.

[22] Williams G, ‘The Victorian Charter of Human Rights and Responsibilities: Origins and Scope’, (2007) 26 Melbourne University Law Review 880 at 895.

[23] These criteria were developed by Dr Simon Evans. See Dr Simon Evans, ‘The Victorian Charter of Rights and Responsibilities and the ACT Human Rights Act: Four key differences and their implications for Victoria’ (paper presented at the Regulatory Institutions Network, ANU, and the Gilbert +Tobin Centre of Public Law conference on The Australian Bill of Rights: the ACT and Beyond, Canberra, 21 June 2006).

[24]Human Rights Bill 2007 Cl 31(5).

[25] Legislation is WA is currently scrutinised by three committees: a Legislation Committee; a delegated legislation committee and a uniform legislation and Statutes Review Committee.

[26] Cl 33(1) defines international jurisprudence to include: the ICCPR; any agreement about the rights of people to which Australia is a party; international law; any judgment of a foreign or international court or tribunal; general comments and views of the United Nations bodies that monitor treaties about the rights of people; declarations and standards adopted by the United Nations General Assembly that are relevant to the rights of people.”

[27] Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 264-265 (Brennan J); Gerhardy v Brown (1985) 159 CLR  70, 124 (Brennan J); Qantas Airways Limited v Christie (1998) 193 CLR 280, 303 (McHugh J), 332-3 (Kirby J). It has been held that approach is not confined in its application to ambiguous statutory provisions: X v Commonwealth (1999) 200 CLR 177, 223 (Kirby J); Qantas Airways Limited v Christie (1998) 193 CLR 280, 333 and footnotes 168-169 (Kirby J).

[28] Coco v R (1994) 179 CLR 427 at 438; see also for example Daniels Corporation v ACCC (2002) 77 ALJR 40 at [43] per McHugh J, also at [11] per Gleeson CJ, Gaudron, Gummow & Hayne JJ.

[29] Human Rights Bill 2007 (WA), Cl 36(4).

[30] See para 61 –67 of this submission.

[31] Human Rights Act 1998 (UK) s 8(2).

[32] United Kingdom Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act, (2006) 18.

[33] Charter of Human Rights and Responsibilities Act (Vic) s39.

[34] Human Rights Consultation Committee, Rights, Responsibilities and Respect: Report of the Human Rights Consultation Committee, (2005).

[35] The United Nations Human Rights Committee (UNHCR) has stated that ‘in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights ... importance [is attached] to State Parties’ establishing appropriate judicial and administrative mechanisms for addressing claims of human rights violations under domestic law’. See UNHRC, The nature of legal obligations imposed on state parties to the covenant, General Comment no. 31, UN Doc CCPR/C/21/Rev.1/Add.13 (2004) [15].

[36] UNHRC, The nature of legal obligations imposed on state parties to the covenant, General Comment no. 31, UN Doc CCPR/C/21/Rev.1/Add.13 (2004) [15-16].

[37] See s 8(1) of the Human Rights Act 1998 (UK) which similarly allows courts to grant such ‘relief or remedy, or make such order, within its powers as it considers just and appropriate’; see also s 24(1) of the Canadian Charter of Rights and Freedoms which provides persons whose rights and freedoms have been infringed or denied are entitled to ‘such a remedy as the court considers appropriate and just in the circumstances’.

[38] Such an approach could be modelled on s 8(3) of the Human Rights Act 1998 (UK) which provides that: (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including— (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

[39] Department of the Attorney General Government for Western Australia, ‘Human Rights for WA Discussion Paper’, 2007, 35.

[40] United Kingdom Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act, (2006) 18.

[41] Giving such functions to the WA Equal Opportunity Commission follows the approach taken in ss 40 and 41 of the Victorian Charter of Rights and Responsibilities Act 2006 which gives the Victorian Equal Opportunity Commission an intervention function as well as a number of additional functions that recognise the ability of the Commission to provide expert advice on the interpretation and operation of the Charter.