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Towards a National Human Rights Act ?
12 October 2009
Poverty, deprivation and homelessness are not only equity or social justice issues. They are human rights issues. A national consultation committee is looking at the implications of a human rights act for Australia. What protections would a human rights act provide for marginalised Australians?
It has been a very interesting year for human rights protection in Australia.
On 10 December 2008, the Australian Government announced the creation of the National Human Rights Consultation Committee, headed by Father Frank Brennan, a Jesuit priest and Professor of Law.
The Committee embarked on national consultations around the country to seek the community's views on the adequacy of human rights protections in Australia.
It visited urban, rural, regional and remote areas and held some closed consultations with groups experiencing high levels of social exclusion and marginalisation.
The committee invited public submissions and was inundated with 40,000 responses, one of the highest number of responses to a public inquiry in Australia's history. GetUp and Amnesty International played a key role in generating this overwhelming response by facilitating online submissions through their websites.
Public hearings were held at Parliament House in Canberra from 1 to 3 July 2009. A number of representatives from the community sector gave evidence including representatives of the Councils of Social Service, St Vincent de Paul, the Public Interest Advocacy Centre, the National Association of Community Legal Centres and the Council on the Ageing.
The COSS network called on the Committee to recommend to the Australian Government that human rights protections in Australia be improved, including by enactment of a national human rights act which protects economic, social and cultural rights.
Now we await the Committee's report and recommendations to Government. The deadline for reporting by the Committee has been extended by one month to 30 September 2009.
Poverty and human rights
Poverty, deprivation, housing stress and homelessness are not just equity or social justice issues. They are also human rights issues.
The right to an adequate standard of living, to social security, to safe and secure housing, to health care, education and work are all protected under international human rights law. Indeed, Australia has accepted its obligations to protect these rights by signing both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
A national human rights act would not be a panacea for all social and economic inequity. But it could produce better outcomes for low income and disadvantaged Australians through better and more accountable decision-making.
Litigation under a national human rights act would be a last resort. Instead, the key benefits of the act would be improved government decision-making and policy development and service delivery that is better adapted to meeting the needs of individuals. Indeed the most significant potential impact of a national human rights act would be the prevention of human rights infringements.
A national human rights act would require the Government to turn its mind to the impacts of any new legislation or policy on human rights. Drastic cuts to social services in times of economic boom would raise serious human rights questions which the Government would need to answer.
A national human rights act would enable courts to interpret legislation in a way that was human rights compliant and to identify laws which, in its view, were inconsistent with rights. In this way, for example, weak tenancy protections which enabled unreasonable rent increases or eviction without adequate notice could be challenged and parliament would have to justify any decision not to reform the law.
As a last resort, a national human rights act would enable individuals to bring a direct action in the courts where rights have been infringed by a public authority. For example, a disadvantaged job seeker might in this way challenge the imposition of unreasonable requirements as a condition of receiving income support claiming a breach of the right to social security or choice of work.
Without a national human rights act we are left to rely on our system of parliamentary review to consider any likely adverse affects of new legislation but with no requirement that Parliament directly consider rights issues. Public debate is all the poorer. Courts have no clear statement of human rights principles in domestic law by which they can be guided in decision making. And individuals in many cases are left without recourse when their rights are infringed by Government or others acting on its behalf.
Other recent human rights developments
The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights will be open for signature on 29 September 2009. The Optional Protocol is important as it provides individuals with a direct complaint mechanism to the United Nations for breaches of social, economic and cultural rights. At present, this mechanism is only available in relation to civil and political rights protected by the International Covenant on Civil and Political Rights.
The Human Rights Law Resource Centre has prepared a detailed submission which recommends that the Australian Government show international leadership by signing and ratifying the Protocol early. ACOSS has supported this call and encourage others to write to the relevant ministers endorsing these recommendations.
In other recent developments, a House of Representatives Inquiry into Homelessness Legislation is currently underway The Inquiry will examine the principles which should underpin the provision of services to Australians who are homeless or at risk of homelessness. It will be important that the human rights of homeless Australians are included.
Conclusion
The law is just the beginning of human rights protection. Broader social, institutional and cultural change must be the ultimate goal. However, such changes are unlikely to occur until human rights principles are vested with legal and moral authority by legislation.
ACOSS has called on the Australian Government to develop a comprehensive social inclusion framework with an explicit anti-poverty strategy. A national human rights act would provide another layer of protection for Australians who might otherwise fall through the cracks. It would also provide a legal and policy framework for the values underlying the ‘fair go for all'.