Chapter 1: Executive summary 1.1 Overview of the Position Paper Chapters 2 and 3 of this Position Paper set out the gaps in Australia’s current framework and make the case for a federal Human Rights Act. Chapters 4–12 outline the Commission’s proposed model for a Human Rights Act. Chapter 13 considers existing parliamentary scrutiny mechanisms and improvements that can be made with the introduction of a Human Rights Act. Chapter 14 focuses on the role of the Commission itself, and the enhanced contributions the Commission can make to promoting and protecting human rights in the light of a federal Human Rights Act. (a) Why Australia needs a Human Rights Act • Australia does not adequately protect human rights at the present time Australia has a patchwork legal framework of human rights protection. The rights that are protected are located in scattered pieces of legislation, the Constitution and the common law. It is incomplete and piecemeal. The Australian Constitution offers only limited protection for a small number of discrete human rights. This includes the implied right to freedom of political communication; and a prohibition on making federal laws that establish a religion, impose a religious observance or prohibit the free exercise of any religion. The High Court has rejected suggestions that other basic rights, like the right to equality, are implied by the text of the Constitution. The common law recognises a number of rights and freedoms. The common law protects human rights indirectly through statutory interpretation principles such as the ‘principle of legality’, which presumes that Parliament ‘does not intend to interfere with common law rights and freedoms except by clear and unequivocal language’. However, common law protections are fragile, as Parliament can pass a law that overrides them at any time. While Parliamentary scrutiny measures enable some consideration of human rights during the law-making process, these measures alone have not resulted in an embedded human rights culture within Parliament. Parliament routinely passes laws that are not human rights compliant. While discrimination laws implement key aspects of the international treaties Australia has ratified, they are only a partial implementation of them, with many key international rights finding no corresponding federal protections. Human Rights Acts have been passed in Victoria, the Australian Capital Territory and, most recently, Queensland. The lack of an overarching federal instrument means that a person’s access to rights protections is wholly contingent on where they live. 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 complaint, the person cannot then bring court proceedings, nor obtain any enforceable remedies. FREE AND EQUAL A Human Rights Act for Australia 2022 11