This paper outlines what our current system of human rights protections looks like, how it is and isn’t effective in ensuring that government respects, protects and fulfils our human rights, why reforming the current system is critical, and options for reform. The case studies throughout show how more fair and equal outcomes can be reached when human rights are protected by law, or instances where there are currently gaps in protection. It provides a basis for members of the public, business sector, NGOs, the legal community and others to submit their views on the proposals contained in this paper, or on other ways to better protect human rights in Australia. What are the options for reform? There are a range of views about the best way to protect and promote human rights in Australia. These include through a constitutionally entrenched bill of rights, a new form of statutory protection or other legislative reform. There is no one option for reform that is a panacea. What is clear is that the status quo is inadequate. Australia has an inadequate legal patchwork of human rights protection that does not fully implement international obligations agreed to by our government. Individuals cannot access enforceable remedies when their rights have been breached and rights and freedoms are too easily ignored or dismissed. A variety of improvements can be made to our laws, policies, governance systems, decision-making frameworks and public service culture, that would strengthen human rights protection in Australia. The Commission has long considered that strengthened statutory human rights protection through a Human Rights Act is the most appropriate model for Australia,1 with considerable support from other human rights experts and the public. For example, in 2009 the Federal Government appoint a committee, led by Father Frank Brennan, to conduct a nation-wide human rights consultation. This was the largest public consultation in Australian history, receiving 35,000 written submissions and holding 66 public roundtables across the country. The consultation concluded that a federal Human Rights Act was the best model of human rights protection for Australia.2 6 Notably, human rights are best protected by a mutually enforcing system of laws, policies and institutions. Building a strong culture of human rights is also essential, both within and outside the government, to ensure that our rights are valued and realised in practice. Join the conversation The Commission seeks input on the options provided in this paper for building a culture and legal framework that proactively protects human rights at the national level. D ISC U SSION QU E ST ION S Please provide any comments on the options identified in this paper for better protecting human rights at the national level. For example: • Do you consider the options proposed are the most important reforms that could be undertaken to better protect human rights? • Do you have comments about how the options identified might work in practice? • Are there other options not identified in the paper? You can make a submission to the Commission on this paper through the online submissions form on our website. Everyone is invited to take part. We want to hear your vision for the future. We want to hear about how to better respect, protect and fulfil human rights in Australia, to make our lives better and our communities stronger. The deadline for receiving submissions on this paper is 5pm on 15 November. FREE AND EQUAL An Australian conversation on human rights 2019 What current human rights protections exist? Our domestic law is far from comprehensive in its implementation of Australia’s human rights commitments. This has led to a situation where domestic law and policy can clash with international human rights obligations. The Australian Constitution, the common law, federal and many state laws offer limited protection. While there has been some forward movement, legal change has not been cogent, cohesive, or timely enough to properly protect our fundamental rights and freedoms. Many gaps remain. The Constitution The Australian Constitution dates back to 1900. It was drafted in the 1890s, before the time of international human rights treaties that recognised the rights of all people equally.3 Its concerns were largely about the relationship between the Commonwealth and the States. Fundamental human rights were considered best left to the protection of the common law and Parliament.4 While intended to be a living document, the Constitution does not always keep pace with changes to Australian society. The protections in our Constitution operate to invalidate any law that prevents the enjoyment of certain, limited rights. These include: • the free exercise of religion5 • a trial by jury for indictable federal offences6 • the implied right to freedom of political communication7 • the implied right to vote8 • a prohibition against discrimination because of the state in which a person lives9 • a prohibition against not providing compensation on just terms for the compulsory acquisition of property by the Commonwealth.10 Federal discrimination laws Federal discrimination laws make discrimination on the grounds of race,11 sex,12 disability,13 age,14 and sexual orientation, gender identity and intersex status15 unlawful. The laws prohibit direct and indirect discrimination, which includes where a condition or requirement has an unfair effect on people with such protected attributes. It is unlawful to discriminate on the basis of race in all areas of public life.16 Discrimination on the basis of sex,17 disability18 and age is only unlawful in prescribed areas such as employment, education, access to premises, the provision of goods and services, and the administration of Commonwealth laws and programs.19 Complaints of unlawful discrimination can be brought to the Australian Human Rights Commission,20 which will investigate and attempt to seek a resolution through conciliation. If a complaint cannot be resolved in this way, a person may be able to bring their matter to court.21 A court can award remedies including damages in cases of unlawful discrimination.22 E QUAL I T Y FO R SA M E - S E X FAMI L I E S Sometimes our laws do not keep pace with human rights and social change, permitting unfair treatment and hardship. Only since 2013 has federal law made it unlawful to discriminate against a person on the basis of their sexual orientation, gender identity or intersex status. However, this law still allowed the prevention of samesex marriage, which only became legal in 2017. Until Parliament decided to change the law, many Australians could not marry the person they loved. They may have also faced different legal, financial and other treatment with no avenue for challenge. Prior to the amendments, a legal right to equality and non-discrimination would have provided stronger protections for same-sex couples and families. FREE AND EQUAL An Australian conversation on human rights 2019 7