The Commission’s proposal also includes the following cross-cutting procedural duties: • Participation duty » First Nations peoples (embedding UNDRIP principles) » Children (embedding CRC principles) » Persons with disability (embedding CRPD principles) • Equal access to justice duty. • Approach to ICESCR rights In order to ensure that ICESCR rights are justiciable and constitutionally compliant, the Commission proposes articulations of ICESCR rights that are somewhat narrower than the full expression of those rights contained in ICESCR. The Commission has focused on including the essential, core and/or immediately realisable aspects of these rights. Importantly, the proposed articulation of ICESCR rights is designed to accord with the Commission’s proposal for including a direct cause of action for unlawfulness under the Human Rights Act. All ICESCR rights are implemented through the Commission’s proposals, to varying degrees and in a range of ways. The Commission recognises that ICESCR implementation, particularly with regard to the principle of progressive realisation, occurs primarily outside of the realm of the courts. Progressive realisation is most relevant to ‘upstream’ decision making about policy and resourcing. Parliamentary scrutiny and Commission reporting would provide opportunities to address the broader aspects of ICESCR rights that extend beyond the narrower articulation of rights in the Human Rights Act to be applied by courts. The Commission also envisions that legal foundations in a Human Rights Act would be complemented by overarching national targets and measurable indicators assessing human rights implementation, enabling the progressive realisation of rights over time. • Approach to First Nations rights The Commission considers that, in combination with a Human Rights Act, a range of steps should be undertaken to implement the rights of First Nations peoples, particularly as set out in UNDRIP. This includes through introduction of a National Plan to implement UNDRIP, and a constitutional Voice to Parliament as the first step towards the full realisation of the Uluru Statement from the Heart. Within the Human Rights Act model itself, the Commission proposes that UNDRIP be reflected in the following manner, subject to further consultations with First Nations peoples: • A ‘participation duty’ applicable to the executive, to reflect principles of selfdetermination through practical measures by public authorities, to complement a Voice to Parliament mechanism. • The inclusion of cultural rights, nondiscrimination rights and ICESCR rights, alongside the participation duty, to incorporate key UNDRIP rights within a Human Rights Act. These would be included with a standalone cause of action, and representative standing to enable organisations to bring claims on behalf of communities – recognising the collective aspect of these rights. • First Nations participation reflected in parliamentary scrutiny processes through the requirement to list in Statements of Compatibility steps taken to ensure that participation of First Nations peoples has occurred, where relevant, which would also be subject to assessment by the Parliamentary Joint Committee on Human Rights. • A clause enabling human rights in the Human Rights Act to be interpreted in light of UNDRIP in cases where the rights of First Nations peoples have been affected. • The right to self-determination articulated in a preamble to the Human Rights Act as an overarching principle of the instrument. FREE AND EQUAL A Human Rights Act for Australia 2022 19