Australian Journal of Human Rights interns Ishrat Zaman and Marianne Caburian examine the impetus for a federal Human Rights Act with Daney Faddoul from the Human Rights Law Centre.
In May 2024, the Parliamentary Joint Committee on Human Rights (‘PJCHR’) handed down its findings from the Inquiry into Australia’s Human Rights Framework, identifying significant inadequacies with the current human rights framework. It recommended the urgent establishment of a federal Human Rights Act to safeguard civil, political, economic, social and cultural rights for individuals and communities facing intersecting forms of discrimination and human rights violations. The Australian government has not yet responded to the PJCHR’s recommendations, nor moved to adopt a nationwide Human Rights Act, despite the clear need for change and the robust Human Rights Act framework proposed.
We spoke with Daney Faddoul from the Human Rights Law Centre (‘HRLC’) to discuss the Human Rights Act Campaign and the progress being made by the HRLC in alliance with 130 organisations across civil society. He described for us some of the benefits, barriers and impetus to adopting a Human Rights Act in Australia.
What gaps exist with regards to the protection of rights under Australia’s current human rights framework and how has this impacted the individuals or communities you work with?
We’ve actually had, in recent years, three Royal Commissions that have dived into the problems that people across our community have faced because they do not have enforceable human rights standards to rely on, either to improve government decision-making or be able to take action when their rights are being breached. Those are the Aged Care, Disability and Robodebt Royal Commissions. We’re talking about hundreds of thousands of people who are in the aged care system and there were found to be systemic problems when it came to the right to dignified treatment, the right to health, the right to privacy and the like. The Disability Royal Commission found that millions of people with disability do not have reliable human rights when it comes to the right to health, right to education, right to housing, right to dignified treatment, right to privacy, right to equality before the law, and so much more.
The Robodebt Royal Commission found issues with the right to an adequate standard of living, but also a whole bunch of due process rights. Remember, that was an automated system bouncing people off income support payment. People found it was like a Byzantine labyrinth to try and prove that they hadn’t done anything to abuse their right to an adequate standard of living under the income support system. Once again, that’s half a million people that were affected by the Robodebt scheme, which was exposed and then shut down.
Those Royal Commissions have shown the sort of problems we have in Australia because we do not have comprehensive, enforceable human rights standards that we can rely on. The most important thing to note about this is that Royal Commissions do not happen on a whim. They are huge exercises, and it shows that in all three cases, there were systemic problems. That’s why the Aged Care and Disability Royal Commissions emphasised the need for enforceable human rights standards in their recommendations to avoid repetition of the problems that those two Royal Commissions faced.
The Australian Human Rights Commission (‘AHRC’) has made a proposal for adopting a model of the Human Rights Act. Should the federal Human Rights Act include comprehensive coverage of civil and political alongside economic, social and cultural rights as reflected in Australia’s commitment to international treaties?
I’m not so sure civil and political rights are currently covered. To give you an example, back in 2019, during the Morrison Government, we had the Australian Federal Police raid the ABC offices and the home of then Sunday Telegraph journalist Annika Smethurst. They wanted to pursue information from those journalists that would expose whistleblowers who gave information to the ABC regarding alleged war crimes in Afghanistan. With respect to Annika Smethurst, it was regarding a proposal by the then Federal Government to get the Australian Signals Directorate, which is a military agency, to be involved in surveilling civilians in Australia. Both stories were in the public interest.
Now that’s a clear issue of press freedom being put at risk. It was a global news story and scandal and it led to a huge uproar in Australia from journalists and the broader community. Remember, in Australia, we have a constitutionally implied freedom of political communication. That is not freedom of expression. It’s a far more limited right than freedom of expression is under the International Covenant of Civil and Political Rights. So, unfortunately, we do not have comprehensive coverage of civil and political rights federally.
As you mentioned, we don’t have economic, social and cultural rights either. Like so many things, it’s a patchwork. How do you enforce it?
Consequently, what the AHRC did in their Free and Equal project, a consultation they conducted from 2018 to 2023, was to look at what sort of human rights standards we want to make sure are placed into our laws, and then provide some detail about what they should be. The AHRC’s Free and Equal proposal for a Human Rights Act said that we should cover internationally covered civil, political, economic, social and cultural rights. It also included the right to a healthy environment and the participation duty, the requirement to talk to and consult with particular parts of our community before a decision has been made about their lives. The parts of our community that the AHRC particularly talked about were people with disability, children, and First Nations people, because there are consultation standards outlined in the Convention on the Rights of Persons with Disabilities, Convention on the Rights of the Child and United Nations Declaration on the Rights of Indigenous Peoples.
So, the AHRC’s model was saying, we need to make sure that we guarantee those human rights standards that Australians think are in our laws, but aren’t in reality - as Royal Commissions show. We need to make sure we put human rights at the heart of government decision-making, because governments must consider human rights standards before coming up with a new law, a new policy or running a service. We also need to make sure that people have the ability to take action when those rights have not been followed or have been breached.
How do you think a federal Human Rights Act would change the daily lives of marginalised communities in Australia?
I think it’s important to note that human rights are for everyone and a Human Rights Act benefits everyone across our community. Whilst everyone benefits from a Human Rights Act, it benefits marginalised communities even more. The reason for this is that they have a greater need to rely on human rights standards because they usually do not have a privileged space in the public conversation or resources at hand to be able to advocate and put forward their issues when their rights are being considered or breached. That is why marginalised communities across the board benefit from having a Human Rights Act.
The good news is this isn’t a zero-sum game. It’s not a pie. Everyone benefits from having a Human Rights Act. Everyone benefits from having human rights standards at the heart of our laws. You can’t necessarily predict in the future what human rights you need to rely on. But if you look to the past, those Royal Commissions – Aged Care, Disability, Robodebt – provide examples of the sort of human rights standards that have been systemically breached and have been shown by a Royal Commission process to have been discounted across the political spectrum. Enforceable human rights standards need to be at the heart of the solutions to ensure we don’t have repetition of similar human rights breaches.
What features of the proposed federal Human Rights Act can be used to protect intersectional rights?
An important thing to remember is that a Human Rights Act isn’t a substitute for anti-discrimination law. They actually work side by side. In the three jurisdictions that currently have a Human Rights Act (Victoria, Queensland and the Australian Capital Territory), they have an anti-discrimination law to make sure people aren’t discriminated against on the basis of a whole series of attributes, and a Human Rights Act to put the right to equality, right to privacy, freedom of expression, right to dignified treatment and so on into law.
The good news is we can look at the state and territory level as examples of how those human rights standards have benefited people across the community. We’ve compiled them into 101 examples you can find on our website.
One of the cases occurred in Queensland. There was a domestic violence survivor who was going to be evicted from her social housing due to the actions of her ex-partner who breached the lease. She was able to use the Queensland Human Rights Act 2019 to advocate to the social housing provider, with the help of Tenants Queensland, about how that situation breached her rights under the Queensland Human Rights Act. The social housing provider reconsidered the situation and her eviction was reversed.
Another of the cases we compiled occurred in Victoria. There was a woman who needed urgent medical treatment but was in a situation where she wasn’t getting the treatment that she needed. If she didn’t get urgent medical treatment, she might lose the use of her hand. The health system had deprioritised giving her treatment because she was over the age of 50. By using the Victorian Charter of Human Rights and Responsibilities Act 2006 (‘Victorian Charter’), this person was able to get the urgent medical treatment that she needed and maintain the use of her hand.
A third case, also in Victoria, involved the Bendigo Islamic community who was using a satellite campus of La Trobe University for their religious functions. Bendigo is not a village, it’s a city, and it did not have a dedicated space for the Muslim community to be able to do all the things that a faith would do. They purchased some land, went for the planning process and got approval from Bendigo City Council to build a mosque.
Then, a few folks in Bendigo, and a bunch of folks outside Bendigo objected to the approval of the construction of the mosque on the basis that Islam wasn’t compatible with community standards. It was thanks to the Victorian Charter’s freedom of religion provisions that the Bendigo Islamic Community was able to fend off that challenge and prevail. They are in the process of building that mosque as we speak.
So those are the sorts of everyday examples across the community that show the benefits of how state-based Human Rights Acts can work in making sure people’s human rights are upheld and how people can take action when their rights are not being respected. You’ll notice that in one of those cases - the domestic violence survivor in Queensland - the example didn’t require court action. It simply required raising it to the decision-maker and saying to the decision-maker, “you’re required to consider these human rights standards.” The decision-maker, to their credit, looked at it and said, “yep, you’re right”, and changed their decision. So there’s a number of ways in which human rights can be made a reality.
A Human Rights Act improves decision-making from the beginning, because governments must consider those human rights when they create new laws, policies or services.
How would a federal Human Rights Act affect the operation of existing state and territory Human Rights Acts?
The Parliamentary Joint Committee on Human Rights, which is a federal parliamentary inquiry, looked into whether we should have a federal Human Rights Act. It drew the conclusion that the answer is yes. It adopted large elements of the AHRC’s Free and Equal Human Rights Act model, and it recommended that the Human Rights Act should be enacted by the federal government and cover federal public authorities.
State and territory governments and parliaments should create their own Human Rights Acts where they don’t exist, and the ones that currently exist should continue operating and look to the Federal Human Rights Act to see what improvements can be made to their Human Rights Acts to ensure there is even greater benefit of human rights standards for everyone across those communities. However, a federal Human Rights Act does not eradicate the need for state or territory Human Rights Acts, since state/territory Human Rights Acts govern state public authorities. Hence, federal and state Human Rights Acts need to be operating together.
How do you think the outcome of the 2025 federal election will affect the next steps and challenges with advocating for and successfully adopting a federal Human Rights Act?
I think it remains to be seen. There have been previous efforts to implement a Human Rights Act under the Whitlam, Hawke and Rudd Governments. However, it is yet to become a reality at the federal level.
Notably, the South Australian Parliament has just released a report on their inquiry into whether South Australia should adopt a Human Rights Act. It recommended implementing a South Australian Human Rights Act, and for the South Australian Government to commence a consultation process to draft the details of what the Human Rights Act should include. I think this shows progress being made towards making human rights protections a reality for everyone across the community. However, this is not a guarantee of progress. It will require effort to make a Human Rights Act a reality. Nonetheless, progress is being made, and momentum is building, and that gives me optimism and confidence for the future.
Polling conducted by Amnesty International over the last three years demonstrates that 3 out of 4 Australians support a Human Rights Act, which is fantastic. However, it also highlights that 51% of Australians think that we already have one. Thus, if we wonder why we haven’t progressed a federal Human Rights Act, one reason could be that many people think we already have one. People will not advocate for something they think already exists.
Ishrat Zaman and Marianne Caburian were interns with the Australian Journal of Human Rights in Term 1, 2025.