Federal discrimination laws make discrimination on the grounds of race,7 sex,8 disability,9 age,10 and sexuality, gender identity and intersex status,11 unlawful in areas of public life – including employment, education and the provision of goods and services.12 The Commission’s first Free & Equal Position Paper, A Reform agenda for federal discrimination laws, closely analysed the Australian discrimination law regime, and made recommendations for reform, framed through four outcome pillars: building a preventative culture; modernising the regulatory framework; improving the practical operation of laws; and enhancing access to justice.13 While discrimination laws implement key aspects of the international treaties Australia has ratified, they are only a partial implementation of the relevant treaties. Some discrimination grounds contained in treaties receive no protection in Australia, or are protected primarily through the use of exemptions from the discrimination provisions – such as the ground of religion.14 Treaties such as the CRPD and the CRC extend beyond purely negative protections against discrimination found in Australian law, and include a range of related positive rights, such as the right to access justice15 and the right to be heard in decision-making processes.16 The incorporation of non-discrimination rights, without the incorporation of other human rights, creates a ‘lopsided’ legal framework.17 The balancing process between discrimination protections and other rights and freedoms can become distorted,18 leading to confused public debate and confused public policy. A recent example of this was the heated and often counter-productive discourse around the proposed Religious Freedom Bills.19 A Human Rights Act would protect all rights. In those circumstances where rights are in conflict, a Human Rights Act would provide a comprehensive framework for the balancing of rights through the application of clear principles. 48 The absence of such a framework means our fundamental rights and freedoms are not fully protected or realised. At times, this has led to unfair, unjust or unequal treatment without appropriate recourse or consequences. (d) Falling through the cracks The consequences of Australia’s lack of legal human rights protections acutely affect people who experience disadvantage, marginalisation and discrimination. It is the most vulnerable people who can fall through the cracks in the existing frameworks. Some examples of key human rights concerns include the following. • Australia’s treatment of First Nations peoples, throughout its history, including through legal discrimination,20 manifest in ongoing health, social and justice disparities.21 For example, First Nations peoples comprise 2% of the Australian population and 30% of the total Australian prison population.22 This overrepresentation in prisons results in high numbers of First Nations people dying in custody, particularly when considered in light of their overall proportion of the Australian population.23 Many of these deaths are preventable. In 2014, Ms Dhu, a 22-year-old First Nations woman died in police custody after she had been arrested for unpaid fines – her complaints of pain were dismissed as exaggerations by officers.24 When addressing the causes of Ms Dhu’s death, the Coroner found that, while the individual officers were not consciously motivated by racism, ‘it would be naïve to deny the existence of societal patterns that lead to assumptions being formed in relation to Aboriginal persons’.25 Many recommendations have been made to address systemic issues of overincarceration and deaths in custody, most of which have not been implemented.26 The UN Special Rapporteur on the Rights of Indigenous Peoples described