A federal Human Rights Act Why is it needed? An Australian Human Rights Act would help fix the incomplete human rights architecture in our legal system. It would close many current gaps in protection in a consistent, principled and comprehensive way. For example, human rights protection should not depend on where you live. A federal Human Rights Act could harmonise protection for all Australians by reference to one law. It would complement our existing yet inadequate human rights protections in law and policy, by requiring that decision-makers consider and act in accordance with human rights. It would provide accountability mechanisms where this has not occurred. It would frame human rights protections in the positive rather than the negative, and help meet our international human rights commitments. H A R M F U L TR E ATME N T O F V UL NE R AB LE PA R E N TS ParentsNext is a compulsory program that affects certain families relying on the Parenting Payment. Under the program, parenting payments can be automatically and immediately cut off if a parent does not attend prescribed activities. As a result, children and their parents have been left without adequate money for food, shelter and other necessities. Single mothers and Indigenous Australians have been the most detrimentally impacted. This program is inconsistent with a person’s right to social security, the right to equality and nondiscrimination and children’s rights. It risks exacerbating poverty and unemployment for vulnerable families. However, without a Human Rights Act there is no avenue to challenge its operation on these grounds. What would it achieve? A Human Rights Act would improve law and policy development by requiring proactive, upfront consideration of human rights impacts at an early stage. This would help ensure that the human rights impacts of decisions are properly considered, improve the quality and transparency of decisionmaking. Human rights breaches could be prevented in advance, ahead of any dispute. There would be a reduced need for people to apply to make a complaint to the Commission or apply to a court to enforce their rights. A Human Rights Act would enhance the design and delivery of public services. It would support decisionmakers to consider human rights in a way that is more appropriate to individual circumstances, rather than taking a blanket approach when making a decision that affects a person’s rights and freedoms. For example, a person’s religious practices would need to be considered when delivering aged care. It would help make public services more accessible and fairer for all. A Human Rights Act would provide a framework for decision-makers to balance human rights when they are in conflict. It would set out a proportionality test to govern when a limitation on human rights is permitted. For example, it is appropriate to limit freedom of expression if one person is racially vilifying another. The test would take into account all the relevant circumstances, including whether there are other less rights-intrusive measures available to achieve the intended purpose of the law or policy. A Human Rights Act would help embed a fair, respectful and inclusive culture of human rights in government. It would require decision-makers and public servants at all levels to be aware of their human rights obligations and how to comply. It would make rights protection a core part of government business, not just an afterthought. CONS E NT TO ME DI C AL T RE AT ME NT In PBU & NJE v Mental Health Tribunal (2018)49 the Victorian Supreme Court found that electroconvulsive treatment (ECT) ordered against patients’ wishes is a breach of human rights. Two patients who suffered from schizophrenia had been ordered by authorized psychiatrists to receive involuntary ECT. The court held that the test of informed consent in the Mental Health Act 2014 (Vic) must be interpreted and applied in a way that is compatible with human rights, specifically the right to selfdetermination, to be free of non-consensual medical treatment and to personal inviolability. The non-consensual orders for ECT were overturned for both patients. A Human Rights Act would give effect to Australia’s voluntarily adopted human rights commitments under international law. Australians would be able to turn to domestic institutions for the protection of their fundamental rights and freedoms. It would improve our standing, credibility and regional leadership on human rights in the Asia Pacific and international stage. A Human Rights Act could reduce social and other costs, providing economic benefits for Australians. Social policies that are compliant with human rights can improve equality of access, for example to health services and social security, in turn reducing longer-term costs. Improved access to education and employment can aid workforce participation and economic growth. By considering the human rights impacts of a proposed law or policy upfront, there is also a reduced likelihood that decisions will breach human rights and therefore the risk and costs of court action. What model could work? There are many models and options for a Human Rights Act, noting that Australia is the only Western liberal democracy without some form of comprehensive legal protection of human rights. Appendix 1 sets out how some other jurisdictions have approached their legal protections for human rights. 12 FREE AND EQUAL An Australian conversation on human rights 2019 Based on existing models in comparative jurisdictions, some key elements of an effective ‘dialogue model’ Human Rights Act would include a set of protected rights, a test for limiting human rights, obligations on public authorities, obligations on courts, consequences for incompatible laws, a cause of action, and effective remedies. A dialogue model means that courts could not strike down laws that are incompatible with human rights, only refer them back to Parliament for review. Parliamentary supremacy is assured. A Human Rights Act would set out a list of protected rights. These could be based on rights already recognised in our common law and international commitments, for example the ICCPR. A Human Rights Act would set out a proportionality test for when a human right can be limited. International law recognises that most human rights are not absolute. That is, many human rights can be limited if the limitation is lawful, reasonable, proportionate and demonstrably justified by government. This allows for consideration of competing interests such as public health and safety. T H E RI GH T TO FA M ILY IN AGE D C ARE Dora and Simon had been married for 59 years. Dora was blind and had recently developed Alzheimer’s disease. She and Simon were injured in a fall at home, and he was no longer able to care for her. During this time, Dora was moved into a local publicly funded nursing home. It became clear that Dora would have to stay in a nursing home, but Simon visited her every day. However, their relationship was threatened when the local authority decided to move Dora into a home that was too far away for Simon and their children to visit. Simon challenged the decision to move Dora on the basis that their right to family life under article 8 of the UK Human Rights Act was threatened. This helped Simon persuade social services to allow Dora to remain in the nursing home close to her family and to Simon.50 FREE AND EQUAL An Australian conversation on human rights 2019 13