27 UN Office of the High Commissioner for Human Rights (OHCHR), ‘End of Mission Statement by the United Nations Special Rapporteur on the Rights of Indigenous Peoples, Victoria Corpuz on her Visit to Australia’ (Statement, 2 April 2017). 28 Migration Act 1958 (Cth) ss 189, 196. 29 Human Rights Committee, Views: Communication No 2094/2011, 108th sess, UN Doc CCPR/C/81/ D1011/2011 (20 August 2013); Human Rights Committee, Views: Communication No 2136/2012, 108th sess, UN Doc CCPR/C/108/D/2136/2012 (20 August 2013). 30 Ms BK, Ms CO and Mr DE on behalf of themselves and their families v Commonwealth of Australia (Department of Home Affairs) [2018] AusHRC 128 <https://humanrights.gov.au/our-work/ asylum-seekers-and-refugees/publications/msbk-ms-co-and-mr-de-behalf-themselves-andtheir?_ga=2.191267042.974473464.16666552502069240963.1589340177>. 31 Paul Farrell, Nick Evershed and Helen Davidson, ‘The Nauru files: cache of 2,000 leaked reports reveal scale of abuse of children in Australian offshore detention’ The Guardian (Online) 10 August 2016 <https://www.theguardian.com/ australia-news/2016/aug/10/the-nauru-files2000-leaked-reports-reveal-scale-of-abuse-ofchildren-in-australian-offshore-detention>. 32 See, eg, UNHCR submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru regional processing centre, and any like allegations in relation to the Manus regional processing centre, 12 November 2016 <https:// www.unhcr.org/58362da34.pdf>. 33 George Williams and Daniel Reynolds, A Charter of Rights for Australia (4th ed, UNSW Press, 2017) 6. 34 George Williams and Daniel Reynolds, A Charter of Rights for Australia (4th ed, UNSW Press, 2017) 6, citing Al-Kateb v Godwin (2004) 219 CLR 562; Behrooz v Secretary, DIMIA (2004) 219 CLR 486; Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1. 35 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Web Page) <https://disability.royalcommission.gov. au/>. concerningaustralias-compliance-conventionrights-persons>. 38 Voluntary commitment made by Australia: Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia, Un Doc A/HRC/31/14 (13 January 2016) [141] <https:// undocs.org/A/HRC/31/14>; and Human Rights Council, Addendum: Views on Conclusions and/ or Recommendations, Voluntary Commitments and Replies Presented by the State under Review, UN Doc A/HRC/31/14/Add.1 (29 February 2016) [37] <https://www.ohchr.org/EN/HRBodies/ UPR/Pages/AUIndex.aspx>. In 2019, the National Statement of Principles Relating to Persons Unfit to Plead or Found Not Guilty by Reason of Cognitive or Mental Health Impairment was finalised. It is voluntary and not all states have committed to implementing it. 39 KA, KB, KC and KD v Commonwealth of Australia [2014] AusHRC 80 <https://humanrights.gov.au/ our-work/legal/publications/ka-kb-kc-and-kd-vcommonwealth-australia>. 40 For example, two provisions of the Australian Constitution as originally drafted were highly discriminatory against Indigenous Australians. Section 51(xxvi) of the Constitution as made gave the Commonwealth power to make laws with respect to ‘people of any race, other than the Aboriginal race in any state, for whom it was deemed necessary to make special laws’. Section 127 of the Constitution as made excluded Indigenous Australians from the census count. These provisions were not amended to remove discriminatory aspects until the referendum in 1967. 41 Robert Moffat, ‘Philosophical Foundations of the Australian Constitutional Tradition’ (1965) 5 Sydney Law Review 85, 86. 42 George Williams and David Hume, Human Rights under the Australian Constitution (2nd ed, Oxford University Press, 2013) 41. 43 Hilary Charlesworth, ‘The Australian Reluctance about Rights’ (1993) 31 Osgoode Hall Law Journal 195, 210. 44 See the Hon Sir Anthony Mason, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australia and the United States Experience’ (1986) 16 Federal Law Review 8. 36 Council of Australian Governments, National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Services Sector (May 2013) <https://www.dss. gov.au/our-responsibilities/disability-and-carers/ publications-articles/policy-research/nationalframeworkfor-reducing-and-eliminating-the-useof-restrictive-practicesin-the-disability-servicesector>. 45 McCloy v New South Wales [2015] HCA 34 [30]. See also Unions NSW v New South Wales (2013) 252 CLR 530 at 554 [36]. 37 51 See Australian Human Rights Commission, Submission to the Committee on the Rights of Persons with Disabilities (25 July 2019), [66] <https://www.humanrights.gov.au/ our-work/legal/submission/information- 46 Australian Constitution s 51(xxxi). 47 Australian Constitution s 80. 48 Australian Constitution s 75(v). 49 Australian Constitution s 116. 50 Australian Constitution s 117. First recognised by the High Court of Australia in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. FREE AND EQUAL A Human Rights Act for Australia 2022 61