A Human Rights Act would protect all included human rights, including the right to equality and the right to freedom of religion and belief. It would provide a framework to help balance the interests of LGBTIQ and religious communities in Australia, through setting out a test for when human rights limitations are permitted. Further, by way of exception, similar to federal anti-discrimination laws, some public authorities could be prevented from making decisions that would impede a religious body from acting in conformity with its religious doctrines, beliefs or principles. Section 2: Understanding human rights in Australia These can be achieved through reform of our existing law, policy or non-legislative processes. The Commission invites comment on the below options for reform, and any other ideas to better strengthen the protection of human rights in Australia. Notably, the nature of human rights obligations means that there is often no one single action that can fully protect human rights or remedy a breach of human rights. This often requires a variety of actions ranging from legal protections, complaint and compensatory procedures, education, community-based programs and social services, for example. Because human rights aim to protect people’s essential dignity and ensure fairness of treatment, it is especially important to ensure that there is a strong focus on prevention of breaches of human rights from occurring in the first place. Additional or alternative What obligations do governments in protections Australia have to protect human rights? The table below provides examples of how different While the passage of a Human Rights Act would afford the strongest protection, many other complementary 3: GOVERNMENT MEASURES TO RESPECT, or alternate FIGURE measures can be taken to enhance human PROTECT AND FULFIL HUMAN RIGHTS rights protection in Australia. measures can be adopted and work together, to respect, protect and fulfil human rights. OBLIGATION OF GOVERNMENT FIGURE: GOVERNMENT OBLIGATIONS TO RESPECT, PROTECT AND FULFIL HUMAN RIGHTS RESPECT Own actions do not breach human rights Human rights are protected in Australian law and remedies are provided for breaches when they occur Consideration is given to the human rights impact of laws, policy and practice Mechanisms exist to enable the participation of affected groups in law and policy making The gender and child’s rights impact of laws and policy is understood PROTECT Laws prevent discrimination and provide remedies for breaches Business obligations to respect and protect human rights (eg human rights due diligence to identify, prevent and account for human rights risks and impacts,) Human rights education initiatives build awareness of rights and responsibilities in the community Partnerships between government, business and community sectors to protect human rights 16 FULFIL Action taken by government Positive actions taken to to prevent others from advance human rights breaching human rights and obligations on people and institutions across Programs exist that provide the community to respect access to basic social services human rights (eg health care; free education FREE AND EQUAL An Australian conversation on human rights 2019 for children, and income support) Targeted programs exist to address known inequalities (eg Close the Gap; National frameworks on family violence, child protection National Disability Insurance Scheme etc) Proactive planning and measurement frameworks address priority human rights issues (eg national action plan on human rights; national implementation mechanism for Sustainable Development Goals) Introducing human rights obligations for policy and law makers Developing a human rights culture in the public service Public authorities, including Ministers and public servants, could be required to properly consider Australia’s international human rights obligations when making decisions, and to act consistently with these obligations. This requirement could be incorporated into existing governance frameworks for the public service, for example the Public Service Act 1999 (Cth), Australian Public Service (APS) values or the APS Code of Conduct. Such a requirement would help government decision-making become more consistent with Australia’s human rights obligations. In addition to legislative change, development of a human rights culture in the public service can be supported by reform of day-to-day processes and practice. Existing law and policy making processes could be reviewed to more effectively incorporate human rights. For example, when making submissions for Ministerial approval, public servants could be required to identify and analyse how Australia’s human rights obligations are met (or not met) when recommending a particular decision or policy proposal. Incorporating human rights into administrative law The Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) could be amended to specify that Australia’s human rights obligations are a relevant consideration that must be taken into account by government decision-makers when exercising a power. In the alternative or in addition, the ADJR Act could be amended to make a breach of human rights a ground for review of an administrative decision. This would allow a person to seek judicial review of a decision that breaches their human rights. It would also encourage the decision-maker to observe the rules of natural justice, including an opportunity for the affected person to be heard, and to provide reasons, where a decision limits human rights. Further legislative and other amendments could be made to apply or highlight human rights to specific public authorities, administrative systems and decision-makers who may not otherwise be subject to the ADJR Act. For example, sentencing courts, as well as prison and parole authorities, could be required to have regard to Australia’s human rights obligations when making sentencing and custodial decisions. This is a matter that could be incorporated into Part IB of the Crimes Act 1914 (Cth). In the alternate or in addition, the ability for independent oversight mechanisms to review administrative action for human rights compliance could be strengthened, such as the powers of the Commonwealth Ombudsman. Further, the functions and processes of the Ombudsman and other administrative review mechanisms could be reviewed to better incorporate human rights standards. Public servants should receive education and training on how human rights are relevant to their roles, and how to best protect human rights. This could be general or more specific depending on a person’s role, such front-end incorporation of human rights into policy development or how to draft a Statement of Compatibility. Public authorities could be required to develop human rights action plans, to conduct or comply with annual human rights audits, and to prepare annual reports on human rights compliance. RE S P E C T FOR PR IVAT E L I F E OF LGBT PE R S O N S The UK Human Rights Act has been used as a tool by advocates to achieve positive social change outside of a courtroom. For example, Robert, a disabled gay man receiving community support, asked his support worker to accompany him to a gay pub where he could socialise. Robert’s request was denied, despite other, heterosexual service users receiving such support. After receiving human rights training, Robert’s advocate challenged this decision by the local authority. He argued that Robert’s right to respect for private life, and to not be discriminated against on the grounds of sexual orientation, were being denied. The relevant local authority changed their policy giving Robert equal opportunity to enjoy his social and leisure activities.58 Access to justice measures support people to know and protect their rights (legal assistance; advisory services) FREE AND EQUAL An Australian conversation on human rights 2019 17