The Commission’s model for a Human Rights
Act would result in the adaptation of the
Commission’s complaints jurisdiction, so that
human rights complaints would be managed by
reference to the Human Rights Act rather than
by reference to international instruments.
If conciliation fails or is inappropriate in the
circumstances, individuals could then proceed
to court for a binding judgment and access
to appropriate remedies, as is the case with
unlawful discrimination complaints. This would
close a significant gap in the human rights
complaints architecture, and would greatly
improve access to justice for those who have
suffered from human rights breaches.
(f) International law obligations
Legislative implementation of Australia’s
international human rights obligations has
been described as ‘faltering, sporadic and
inconsistent’, and the ICCPR as having ‘a small
and almost random presence in Australian law’.114
UN Treaty bodies have repeatedly concluded
that core treaties have not been adequately
incorporated into Australia’s legal system. For
example in 2017, the Human Rights Committee
noted ‘gaps in the application of the ICCPR’
and recommended that Australia ‘adopt
comprehensive federal legislation giving full
legal effect to all covenant provisions’.115 In the
same year, the Committee on Economic, Social
and Cultural Rights recommended that Australia
When the Commission was put on a permanent
foundation in 1986,119 an ‘Australian Bill of
Rights Bill’ was introduced into Parliament
at the same time, and the Commission was
to be the body that administered this law.120
Together, these steps were supposed to provide
cohesive domestic implementation of Australia’s
obligations under the ICCPR. However, a
statutory Bill of Rights was not ultimately
adopted, leaving a gap in the architecture and
work of the Commission.121
Australia’s limited approach to human rights
implementation leads to incongruity between
the Commission’s mandate to protect human
rights and the government’s lack of legal
accountability for human rights.
Australia also has a history of being closely
involved in the development of international
human rights law. For example, Australia was
one of eight nations involved in drafting the
Universal Declaration on Human Rights.122
However, without a Human Rights Act, Australia
has been increasingly isolated from shared legal
standards developed in countries with domestic
rights instruments – such as Canada, the UK and
New Zealand. A Human Rights Act would bring
Australia into alignment with these countries.
With a Human Rights Act in place, Australia
would also have better standing and credibility
on the international stage, including when
encouraging other countries to comply with
human rights.123
consider introducing a federal Human Rights Act
due to the limitations of the existing system.116
Australia’s 2020 Universal Periodic Review
also resulted in similar recommendations from
multiple countries.117 There have been many
other treaty body calls for full incorporation of
treaty obligations, dating back many years.118
A Human Rights Act would ensure that
Australia’s practice aligns with international
law, and with Australia’s own statements and
commitments.
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