The Commission has expressed the concern that the
findings of the PJCHR are rarely taken into account
by Parliament. In many instances, bills are voted upon
prior to the PJCHR tabling its views meaning that
identified human rights concerns are not brought to
the attention of parliamentarians until it is too late to
consider the implications of this.
Australian Human Rights Commission
In 1986, the Federal Parliament established on
a permanent footing what is now the Australian
Human Rights Commission.40 The Commission was
established at the same time that an Australian Bill of
Rights Act was introduced into Parliament and was
intended to be the body that administered this law.
Together, these steps were supposed to domestically
implement Australia’s obligations under the ICCPR.
Australia is a signatory to seven core international
human rights treaties, including the International
Covenant on Civil and Political Rights (ICCPR).41 Under
these human rights treaties, governments are obliged
to respect, protect and fulfil human rights.
However, a Bill of Rights was not ultimately adopted,
leaving a gap in the architecture and work of the
Commission.
Presently, the Commission can inquire into and
attempt to conciliate individual complaints of unlawful
discrimination,42 equal opportunity in employment
(the ILO 111 jurisdiction) and other breaches of
human rights.43 It can also hold public inquiries and
consultations, including to address systemic human
rights or discrimination issues of national importance.
It can undertake research and education to promote
human rights.
The Commission may report to the Minister on laws
that should be made or action the government should
take on human rights44 or compliance with Australia’s
international human rights obligations.45 In legal cases
involving human rights issues, the Commission has a
power to intervene and make submissions with the
leave of the court.
However, the Commission’s ability to resolve
human rights complaints can be very limited. Unlike
complaints alleging unlawful discrimination, if the
Commission cannot conciliate a human rights or ILO
111 discrimination complaint, the person cannot then
bring court proceedings. Rather, if the Commission
finds a breach of human rights it can report to the
Attorney-General.46 Any recommendations made
by the Commission are non-binding and are not
enforceable by the courts.
However, Australia is the only common law legal
In effect, human rights complainants can be left at
Section
rights in Australia
system in the world without a constitutional Bill
the
end2:ofUnderstanding
a pathway human
with nowhere
to go. While
of Rights or a national Human Rights Act by way
they have been able to make a complaint to the
of domestic implementation of these voluntary
Commission, the result is a non-binding report which
commitments.47
in many cases is ineffective in achieving true justice or
reform.
These different obligations reflect that there is no one
This
means
are unable
legally
single
action
thatAustralians
can fully protect
humantorights
or enforce
the a
obligations
assumed
by our
government
under
remedy
breach of human
rights.
It requires
a mixture
these ranging
treaties,from
needing
rely on complaints
of actions
legal to
protections,
complaint to
International law
and the
compensatory
processes,
educative
Commission,
as a precursor
to measures,
complaining to
community
programs
and social
for cannot
certain based
international
bodies
if theservices,
Commission
The obligation to respect human rights requires
example.
resolve the complaint. For example, the United
that governments, through their own actions, do
Nations
Human
Rights
can hear individual
Because
human
rights
aim toCommittee
protect people’s
not breach human rights and ensure remedies are
essential
dignity and ensure
fairness
of treatment,
is
communications
relating
to breaches
of theitICCPR.
available for breaches by governments and public
especially
important
to
ensure
that
there
is
a
strong
However, the decisions of such bodies are not binding
officials. The obligation to protect human rights
focus
prevention
breaches
of human
rights 48
ononAustralia
andofcan
and have
be ignored.
requires governments to take actions to prevent
from occurring in the first place. Where a human
others from breaching human rights and ensure
rights
breach
has occurred,
the law is
limited
whatrecourse
Other
international
processes
also
offerinlittle
accessible and effective remedies are available if
it can do to remedy that breach, as it is very difficult
for victims of human rights violations by Australia.
rights
are
breached. The
obligation to fulfil human
to repair injury to a person’s dignity once it has been
FIGURE
2: GOVERNMENT
OBLIGATIONS
Recommendations made by United Nations special
TO ADVANCE
HUMAN
RIGHTS to take positive actions
damaged.
rights
requires
governments
rapporteurs and resolutions passed by the United
to fully realise the equal enjoyment of human rights. The table below provides examples of the types
Nations Human Rights Council are also unenforceable.
of measures that can be taken by governments to
respect, protect and fulfil human rights.
What obligations do
governments in
Australia have to protect
human rights?
RESPECT
Government’s own
actions do not
breach people’s
human rights
PROTECT
Government obligation
to take actions that
prevent anyone from
breaching people’s
human rights and
community obligation
to respect human rights
FULFIL
Positive actions are taken
to advance human rights
10
FREE AND EQUAL An Australian conversation on human rights 2019
FREE AND EQUAL An Australian conversation on human rights 2019
FREE AND EQUAL An Australian Conversation on Human Rights
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11