A Human Rights Act would require the government to give proper consideration to human rights and act compatibly with human rights. This obligation would apply to Ministers, public servants and bodies charged with delivering public services. A Human Rights Act would require courts to interpret and apply legislation consistently with human rights. It would help our law develop consistently with human rights, and ensure that court proceedings are conducted in a way that is compatible with human rights. ACC E SS TO JUSTIC E In Matsoukatidou v Yarra Ranges Council (2017),51 the Supreme Court of Victoria found that a court or tribunal must assist a self-represented party with a disability to effectively participate in a hearing. The applicant had attempted to appeal a decision of the local council about her home. The applicant suffered from a learning disability. She misunderstood the nature of the proceedings, the applicable legal test, and was not given an adequate opportunity to make her submissions. As a result, her appeal was struck-out. The Court found that the right to equality under the Charter applied to the practice and procedure of courts, positively obliging judges to make reasonable adjustments and accommodations to ensure equal access to justice. The appeal was sent back to the County Court to be reheard. A Human Rights Act would require Parliament to pass laws that are compatible with human rights, or otherwise issue an ‘override declaration’. An override declaration would be required to provide strong justification as to why human rights protections should be displaced in the proposed law, and be subject to parliamentary and public scrutiny. 14 A Human Rights Act should allow a person to make a human rights complaint to the Commission, as is currently possible for a breach of ICCPR rights, but by reference to the human rights protected in the Act. In many cases the Commission’s investigation and conciliation service could assist to successfully resolve a dispute without going to court.52 A Human Rights Act should also provide a cause of action to a court. While conciliation is effective and useful, it is also critical that there are legal avenues for individuals to challenge laws and government action that are not consistent with their human rights and freedoms. In this way, a person can seek different and enforceable outcomes when their rights have been breached. Judicial oversight will enhance accountability and quality of decision-making. The most rights protective option would be a stand-alone cause of action, allowing a person whose rights have been breached to apply directly to a court or tribunal. Alternatively, a restricted cause of action could be available when attached to a separate, existing legal claim. A Human Rights Act should provide a range of enforceable remedies where a public body has breached human rights. Australia is required under the human rights treaties it has signed to provide effective remedies for a breach of human rights, including appropriate compensation.53 Such remedies could include compensation, guarantees of nonrepetition, an apology or orders that certain action be taken, such as training.54 A Human Rights Act should protect all human rights. Full implementation of Australia’s international commitments requires not only the protection of civil and political rights, but also the progressive realisation of economic, social and cultural rights to the maximum of Australia’s available resources.55 Enforcement mechanisms for these rights could ensure that appropriate discretion is left to the government to allow decision-making about resource allocation, and would be subject to any constitutional limitations. FREE AND EQUAL An Australian conversation on human rights 2019 P ROT E C T I NG AB ORI GI NAL C U LT U RAL RI GH TS H U MAN RI GH TS A N D N E W T E C H NOLOGI E S In Cemino v Cannan (2018),56 the Victorian Supreme Court found that a magistrate was required to take into account a person’s right to equality and cultural rights, in particular the right held by Aboriginal persons to their identity and culture, in considering where to hold a sentencing hearing. A 22-year-old Yorta Yorta man had requested that his matter be heard in the Koori Court, a culturally-sensitive forum where local elders help determine an appropriate punishment. The magistrate’s decision to refuse to transfer the case to the Koori Court was quashed. The Court ordered that the transfer application be reheard, in accordance with the Charter. Unprecedented and rapid technological change has already significantly affected our human rights. This change presents significant challenges for the government and wider community, and our laws have struggled to keep pace. For example, the use of algorithms to target jobs ads on the basis of age, or other exclusionary criteria, may mean that older people are excluded from employment opportunities. Such examples highlight the potentially unfair outcomes of AI-informed decision-making. Submissions made to the Commission’s current Human Rights and Technology Project have identified the need for a principles-based, technologically-neutral human rights legislation as part of a regulatory framework.57 What are the main objections? Over time, many arguments have been made against a Human Rights Act. These include that: our current protections are adequate, parliamentary supremacy will be undermined, power will be transferred to judges, there will be more litigation and that certain rights will be undermined, such as freedom of religion and belief. The Commission considers that none of these objections are necessarily correct or compelling. It is true that many people in Australia already enjoy a relatively high standard of living. However, history shows that our current system has not always been effective or adequate, especially for vulnerable and marginalised members of the community. In addition, any one of us could move from a situation where our rights are currently well protected to one where we are more vulnerable—for example through sudden illness, accident or unemployment. New human rights challenges will also continue to emerge, for example in relation to technological change, Australia’s ageing population, and the effects of climate change. We should strive for, and lay the foundations of, a fairer and more inclusive future Australia for all. A Human Rights Act would be an ordinary and democratic Act of Parliament passed by our elected representatives through usual parliamentary process. It would not be a higher law that sits above all else. Under a dialogue model, judges would not have the power to invalidate non-compliant laws. Rather, Parliament would be required to reconsider the problematic aspects. Under a Human Rights Act, courts would be doing the kind of work they always do—interpreting legislation and balancing competing interests in applying the law. By embedding human rights considerations into government decision-making, the Act could prevent human rights problems from arising in the first place. In turn, this could reduce the risk of litigation. The Commission would also act as a forum for resolving complaints through conciliation, without going to court. Comparable jurisdictions such as the United Kingdom have not seen a substantial increase in litigation since its Human Rights Act. FREE AND EQUAL An Australian conversation on human rights 2019 15