Australia’s Indigenous incarceration rate as a ‘major human rights concern’.27 • Australia’s treatment of asylum seekers, including its mandatory detention regime,28 has been repeatedly found to breach international human rights obligations.29 Mandatory detention can result in prolonged and/or indefinite detention that is often arbitrary. Asylum seekers held in offshore detention have been subject to unsafe and unsanitary conditions,30 as well as physical and sexual abuse.31 Asylum seekers in detention have extremely high rates of mental illness, and there have been many incidents of selfharm and suicide.32 For example, in 2016, Omid Masoumali a 23-year-old Iranian refugee set himself on fire, shouting ‘I cannot take it anymore’. He died of his injuries.33 There is no domestic right to protection from arbitrary detention, and the regime has been found to be lawful by the High Court.34 • Persons with disability in Australia experience high rates of violence, abuse, neglect and exploitation, an issue that is currently being explored by a Royal Commission.35 There is a lack of consistent protections against the use of restrictive practices on persons with disability,36 and insufficient safeguards around the imposition of compulsory treatment and involuntary hospitalisation.37 One of the most concerning aspects of Australia’s treatment of persons with disability is the ‘unfitness to stand trial laws’. Under these laws people with mental illness who have been found to be unfit to stand trial due to impairment, can face indefinite periods of detention without ever being convicted of a crime.38 For example, the Commission has reported on the detention of four First Nations men with disability who were detained for several years longer than they would have been had they been found guilty for the charged offence.39 2.3 Overview of the gaps in Australia’s rights framework (a) The Australian Constitution The Australian Constitution offers only limited protection for a small number of discrete human rights. The Australian Constitution dates back to Federation in 1901. It was drafted in the 1890s, before the time of international human rights treaties that recognised the rights of all people equally.40 Its concerns were largely about the relationship between the Commonwealth and the States. One of the key arguments against the inclusion of individual rights in the Constitution at Federation was that they would ‘usurp the power of the States’.41 Further, the drafters were also ‘concerned to maintain the power of colonies, once they became the Australian states, to discriminate between people on the ground of their race’.42 At the Constitutional Conventions in the 1890s, the delegates did not include First Nations peoples, women or working men. Those who drafted the Constitution were confident that ‘the protections to individual rights provided by the traditions of acting as honourable men were quite sufficient for a civilised society’.43 While intended to be a living document, the Constitution does not always keep pace with changes to Australian society since that era. Fundamental human rights were considered best left to the protection of the common law and Parliament. The Hon Sir Anthony Mason AC ABE GBM KC explained as follows: Because the founders accepted, in conformity with prevailing English legal thinking, that the citizen’s rights are best left to the protection of the common law and because they were not concerned to protect the individual from oppression by majority will, the Constitution contains very little in the way of provisions guaranteeing new rights.44 FREE AND EQUAL A Human Rights Act for Australia 2022 49