December 2021 A reform agenda for federal discrimination laws 1.2 The obligations to respect, protect and fulfil human rights This Position Paper is the first in a series of papers setting out the Commission’s proposed reform agenda for the better protection of human rights at the national level in Australia. Each of the Position Papers is designed to complement the others, and to address necessary human rights reforms across different areas of law, policy and practice. Each paper identifies actions necessary for Governments to meet their obligations to respect, protect and fulfil human rights. • The obligation to respect human rights requires that governments, through their own actions, do not breach human rights. • The obligation to protect human rights requires governments to take actions to prevent others from breaching human rights. Where a person’s rights have been breached, the obligation to protect also requires governments to ensure accessible and effective remedies are available to that person. • The obligation to fulfil human rights requires governments to take positive actions to fully realise the equal enjoyment of human rights. These different obligations reflect that there is no one single action that can fully protect human rights or remedy a breach of human rights. It requires a mixture of actions ranging from legal protections, complaint and compensatory processes, educative measures, community-based programs and social services, for example. Because human rights aim to protect people’s essential dignity and ensure fairness of treatment, it is especially important to ensure that there is a strong focus on prevention of breaches of human rights from occurring in the first place. Federal discrimination law has a key role to play in meeting Australia’s obligations across each domain: to respect, protect and fulfil human rights. One of the key findings of the Commission’s work is that the existing system of federal discrimination law is primarily geared towards the remedial aspects of the obligations to respect and protect, and even with this as its main focus, it falls short of realising effective remediation for discrimination. There are gaps in the protection offered by these laws, as well as significant questions as to how accessible the discrimination law system is – particularly for marginalised or disadvantaged groups. This suggests that federal discrimination law could be more effective in meeting these obligations to respect and protect rights. 16 FREE AND EQUAL An Australian Conversation on Human Rights