The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) provides some limited protection against unjustified legislative encroachment on rights. The Act provides for the appointment of the Parliamentary Joint Committee on Human Rights and requires a ‘Statement of Compatibility’ with human rights obligations to accompany Bills and legislative instruments. But in the absence of legal protections for breaches of human rights, this is scrutiny that exists without consequence. The gaps in our legal coverage of human rights mean that there is not a consistent, principled and complementary framework for protecting human rights. Decision makers are not required to consider and act in accordance with human rights. There are limited avenues to seek review of government decisions or actions that violate a person’s human rights. A full overview of the gaps in the framework is provided below in section 2.3. (b) Human rights should be comprehensible to all Australians In Australian law: • Australian common law allows judges to interpret legislation in a way that is consistent with human rights, but not if the Parliament has clearly indicated that it is deliberately intending to breach your human rights. • You can bring a complaint to the Australian Human Rights Commission about your human rights being breached in relation to some human rights but not others. • If you bring a complaint to the Australian Human Rights Commission against the government and it does not agree to take action to address the breach of human rights, there is nothing else you can do. You are not entitled to take your complaint any further – such as to court. • Freedom of expression is protected by the Australian Constitution if the government seeks to limit forms of political communication, but you do not have an individual right to protect your freedom of expression. The existing, patchy implementation of human rights in Australia occurs through a complex mixture of provisions in the Constitution, in our common law (or judge made law) and legislation. Sometimes human rights are protected, and other times they are not. These statements reveal contradictory and complex messages about how human rights are protected, and when they matter in Australian law. The different types of protections are accompanied by different pathways for seeking to enforce rights, and different levels of enforceability. Grounding human rights protection in a federal Human Rights Act would contribute to greater comprehension about human rights and increase awareness of human rights. This is not easily explainable, or readily comprehensible, to all people in Australia. (c) Negative framing Not only should the law afford appropriate protection to the people of Australia, but it should be capable of being understood by all. It is difficult to stand up for your rights and have them protected, if it is unclear how they are in fact protected in practical terms. Existing legislative protections often frame human rights in the negative rather than the positive. That is, the law narrowly sets out what the government or others cannot do – as in our federal discrimination laws. FREE AND EQUAL A Human Rights Act for Australia 2022 47