Endnotes 1 Our Constitution can only be changed by referendum—a difficult, costly and historically unsuccessful path. A Human Rights Act would be a more incremental, pragmatic, democratic, approach that preserves parliamentary supremacy. 2 See Commonwealth of Australia, National Human Rights Consultation (Report, September 2009). 3 For example, two provisions of the Australian Constitution as originally drafted were highly discriminatory against Indigenous Australians. Section 51(xxvi) of the Constitution as made gave the Commonwealth power to make laws with respect to ‘people of any race, other than the Aboriginal race in any state, for whom it was deemed necessary to make special laws.’ Section 127 of the Constitution as made excluded Indigenous Australians from the census count. These provisions were not amended to remove discriminatory aspects until the referendum in 1967. 4 5 See the Hon Sir Anthony Mason, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australia and the United States Experience’ (1986) 16 Federal Law Review 8: ‘Because the founders accepted, in conformity with prevailing English legal thinking, that the citizen’s rights are best left to the protection of the common law and because they were not concerned to protect the individual from oppression by majority will, the Constitution contains very little in the way of provisions guaranteeing new rights. The founders did not share the American framers’ lack of faith in parliamentary supremacy and their belief that it was necessary to protect minority rights against majority oppression’. His Honour echoed these comments in Australian Capital Television v Commonwealth (1992) 177 CLR 106 at [31]. Section 116 of the Constitution provides: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. 15 In 2013 amendments were made to the Sex Discrimination Act 1984 (Cth) by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth). The amendments replaced discrimination based on ‘marital status’ throughout the Sex Discrimination Act 1984 (Cth) with discrimination on the basis of ‘sexual orientation, gender identity, intersex status, marital or relationship status’: Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) Sch 1, Pt 1. 16 Racial Discrimination Act 1975 (Cth), s 9. 17 Racial Discrimination Act 1975 (Cth), s 26. 18 Racial Discrimination Act 1975 (Cth), s 29. 19 There are other protections against unlawful discrimination in federal workplace laws, such as the Fair Work Act 2009 (Cth) that entitles the Fair Work Ombudsman to take enforcement action against employers who unlawfully discriminates against an employee or prospective employee based on certain attributes, including race, colour, sex, sexual orientation, age, disability, marital status, religion, pregnancy and political opinion. 20 Australian Human Rights Commission 1986 (Cth), s 46P. 21 Australian Human Rights Commission 1986 (Cth), s 46PO(1). 22 Australian Human Rights Commission 1986 (Cth), s 46PO(4). 23 See, inter alia, Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 per McHugh and Gummow JJ at [100]; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 per Kiefel K at [247]. 24 Momcilovic v The Queen (2011) 245 CLR 1 per French CJ at [43]. 25 British Institute of Human Rights, The Human Rights Act – Changing Lives (2nd ed, 2008) 15. 26 Charter of Human Rights and Responsibilities Act 2006 (Vic). 27 Human Rights Act 2004 (ACT). 28 Human Rights Act 2019 (Qld). 29 Anyar v Commissioner for Social Housing (2017) ACAT 33. 30 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), ss 8, 9(1); Legislation Act 2003 (Cth), s 15J(2)(f). 31 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), ss 8(4), 9(3). Recognised by the High Court of Australia in ss 7, 24, taken together, of the Constitution: see Roach v Electoral Commissioner (2007) 233 CLR 162 and Rowe v Electoral Commissioner (2010) 243 CLR 1. 32 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), ss 8(5), 9(4). 33 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), s 7(a). 9 Australian Constitution, s 117. 34 10 The Commonwealth may only acquire property on ‘just terms’ as a consequence of s 51(xxxi). For a detailed discussion of this provision, see Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (ALRC Report 129, 2015) 477-85. Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), s 7(b). 35 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), s 7(c). 36 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), ss 7(a), (b), (c). 37 See description of the Committee’s work in Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (ALRC Report 129, 2015) 41–43. 38 Acts Interpretation Act 1901 (Cth), ss 15AB(2)(c), (e). 39 Acts Interpretation Act 1901 (Cth), s 15AB(1). 6 7 8 11 26 Section 80 of the Constitution provides: ‘The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes’. First recognised by the High Court of Australia in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. In 1975 with the Sex Discrimination Act 1984 (Cth). 12 In 1984 with the Sex Discrimination Act 1984 (Cth). 13 In 1992 with the Disability Discrimination Act 1992 (Cth). 14 In 2004 with the Age Discrimination Act 2004 (Cth). FREE AND EQUAL An Australian conversation on human rights 2019 40 The legal history of the Australian Human Rights Commission and its complaint handling functions are discussed in detail in: Emeritus Professor Rosalind Croucher AM, ‘”Seeking Equal Dignity without Discrimination” — The Australian Human Rights Commission and the Handling of Complaints’ (2019) 93 Australian Law Journal 571. 41 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 42 Australian Human Rights Commission Act 1986 (Cth), ss 11(a) and (aa). Such claims arise under Australia’s anti-discrimination legislation, which includes the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth). 43 Australian Human Rights Commission Act 1986 (Cth), s 11(f)(i). 44 Australian Human Rights Commission Act 1986 (Cth), s 11(1)(j). 45 Australian Human Rights Commission Act 1986 (Cth), s 11(1)(k). 46 Australian Human Rights Commission Act 1986 (Cth), s 29. 47 Robert French AC, ‘Human Rights Protection in Australia and the United Kingdom: Contrasts and Comparisons’, Anglo-Australasian Lawyers Society and Constitutional and Administrative Law Bar Association (5 July 2012). 48 Sometimes, the government has responded to decisions made by international bodies. In 1994, the Human Rights Committee found that a Tasmanian law criminalising homosexual sex violated the right to privacy guaranteed by article 17 of the ICCPR. The federal government responded by passing the Human Rights (Sexual Conduct) Act 1994 (Cth) that legalised sexual activity between consenting adults throughout Australia, undoing the effect of Tasmania’s law. This Committee decision had a positive impact on the legal landscape in Australia, but is in the minority in that regard, and still required action by the federal Parliament. 49 PBU & NJE v Mental Health Tribunal [2018] VSC 564. 50 See ‘Human rights and equality in the voluntary sector: Report of a pilot project by the British Institute of Human Rights and the Equality and Diversity Forum’, Equality and Human Rights Commission (10 December 2010) 11. 51 Matsoukatidou v Yarra Ranges Council [2017] VSC 61. 52 Given the urgent and serious nature of some human rights matters, such as where a person is facing deportation and there is risk of refoulement, it is important that conciliation be an option but not prevent a person from pursuing a time-sensitive claim in court. 53 For example, see article 2(3) of the International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). 54 UN Human Rights Committee, General Comment No 31, The nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, para 16; UN Committee on the Elimination of Racial Discrimination, General Recommendation No 26, General recommendation XXVI on Article 6 of the Convention, 24 March 2000, para 2. 55 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). 56 Cemino v Cannan [2018] VSC 535. 57 See further Australian Human Rights Commission, Human Rights and Technology Issues Paper (2018). 58 British Institute of Human Rights, The Human Rights Act – Changing Lives (2nd ed, 2008) 9. 59 The Australian Law Reform Commission has recommended a statutory cause of action for serious invasion of privacy. See Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice (ALRC Report 108, 2006) [74]. 60 See discussion of issues impeding the effective resolution of ILO 111 complaints made to the Commission in Australian Human Rights Commission, ‘Discussion paper: Priorities for federal discrimination law reform’, Free and Equal: An Australian conversation on human rights 2019 (2019) 10–11. 61 See similar conclusions reached and recommendations made in Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (ALRC Report 129, 2015) [3.95]. 62 As the Australian Law Reform Commission has noted: ‘Parliamentary debate is the ultimate forum for the scrutiny of, and judgments about, encroachments on rights’: Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (ALRC Report 129, 2015). 63 Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (ALRC Report 129, 2015) [3.95]. 64 The business and human rights agenda has evolved significantly in recent years. Several countries are developing or implementing legislation, for example the Corporate Duty of Vigilance Law in France, the Child Labour Due Diligence Law in the Netherlands and the Responsible Business Initiative in Switzerland. 65 See Australian Government Department of Foreign Affairs and Trade, Business and Human Rights available at https://dfat.gov.au/international-relations/themes/ human-rights/business/Pages/default.aspx. 66 British Institute of Human Rights, Protect, Care and Support: A Human Rights Approach to Advocacy. 67 See Australian Human Rights Commission, ‘Discussion paper: Priorities for federal discrimination law reform’, Free and Equal: An Australian conversation on human rights 2019 (2019) 10–11. FREE AND EQUAL An Australian conversation on human rights 2019 27