Information for List of Issues—
Australia
Introduction
1. This submission is made by the Australian Human Rights Commission (Commission). The
Commission is an ‘A status’ national human rights institution, operating in conformity with the
Paris Principles.1 The submission is based on work that has been undertaken by the
Commission in accordance with our mandate and functions.
Framework
Ratification of the Optional Protocol to the ICESCR
2. Australia has not ratified the Optional Protocol to the ICESCR (OP-ICESCR) which leaves a
significant gap in protection and accountability for economic, social and cultural (ESC) rights.2
Constitutional and legislative framework
3. Australia has a limited legal framework for implementing its human rights obligations and
providing remedies. In its 2017 Concluding Observations the Committee recommended that
Australia incorporate ICESCR into its domestic law. 3
4. The Commission has recently released a report recommending reforms to federal
discrimination laws as part of its ‘Free & Equal’ project.4 These recommendations would ensure
more robust, effective protection against discrimination for ESC rights. The Commission will
shortly outline a model for a federal human rights act and accompanying reforms as part of the
Free & Equal Project, including consideration of effective domestic legal protection of ESC rights.
5. The Parliamentary Joint Committee on Human Rights (PJCHR), analyses bills and legislative
instruments before the federal Parliament for compliance with human rights, including the
ICESCR. The Commission is concerned about the quality of ‘Statements of Compatibility with
Human Rights’ that accompany bills, and limited consideration of the views of the PJCHR prior to
the passage of legislation.5 There is limited human rights education and training for public
officials to assist in the preparation of these Statements of Compatibility. The processes of the
PJCHR stand in isolation as compared with other jurisdictions that incorporate the obligations in
the ICESCR into domestic law via a national human rights act or charter of rights.
National Human Rights Institution
6. The Commission has a statutory power to promote and protect human rights under the
Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). Human rights are defined as the
international instruments scheduled to the Act. While the Commission considers it is able to
consider ESC rights issues due to the scheduling of other international treaties to the AHRC Act,
or through the operation of federal discrimination laws, the Commission’s legislation does not
explicitly include the ICESCR within the definition of ‘human rights’.6 The Committee previously
recommended that Australia include ICESCR in the Commission’s mandate and ensure that the
Commission has sufficient resources to discharge its role effectively.
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