Incorporating human rights into statutory interpretation Enhancing the Commission’s human rights functions Enhancing parliamentary review and oversight mechanisms The Acts Interpretation Act 1901 (Cth) could be amended to require that federal legislation be interpreted consistently with human rights as far as it is possible to do so consistent with the purpose of the particular law. This would allow courts to have regard to Australia’s human rights obligations when interpreting Commonwealth legislation. As in Victoria, Queensland and the ACT, courts could be permitted to consider international law when interpreting human rights, such as treaties and general comments that expand on the content of rights including those of at-risk groups, like people with a disability and Indigenous peoples. The Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) could be amended to allow a person to have recourse to a court if their human rights or ILO 111 discrimination complaint cannot be conciliated by the Commission, in the same way that complaints are currently treated under federal discrimination laws.60 For example, a new provision modelled on current s 46PO of the AHRC Act could be introduced, to allow a person to apply to the court if a human rights complaint is terminated by the Commission. Human rights protections could be strengthened through improved parliamentary scrutiny processes.61 Parliamentary Standing Orders, policies and procedures could be reformed to improve the human rights compliance of Bills before they are passed, for example through requiring that: Reforming tort law In tort law, there is already some measure of protection against human rights violations. For example, the tort of false imprisonment may provide recourse for an individual arbitrarily detained by the police. A victim of police brutality could sue for assault or battery to protect their right not to be subject to cruel, inhuman or degrading treatment. A person subjected to malicious prosecution could sue in tort to compensate for a violation of their right to a fair trial. However, our tort law could be strengthened as a means of enhancing human rights protections, by giving Australians a cause of action where their rights have been breached. Such reform would also help fulfil Australia’s obligation to provide an effective remedy for violations of human rights. Options include introducing legislation to extend the scope of existing torts, so that they cover protections guaranteed in international human rights law. For example, extending the tort of negligence to cover the failure of a public authority to adequately fund medical services in rural areas, where such shortfall led to foreseeable deaths of patients. Another option is for specific new torts to be created, such as a tort of invasion of privacy.59 Alternatively, a new, more general tort providing a right to sue for violation of a recognised human right would provide clearer protection of human rights in Australia. 18 The AHRC Act could also be amended to empower the Commission, or other representative organisations with a legitimate interest in a particular subject matter, to bring a court case where government action has breached human rights on a systemic level. The Commission requires adequate funding and resources to carry out its functions or expanded functions, to ensure better protection and promotion of human rights. Indigenous recognition, representation and reconciliation Our Constitution should be reformed to recognise Indigenous Australians, remove racially discriminatory provisions and include constitutional protections of equal treatment and non-discrimination. Our Parliament should ensure the full participation of Aboriginal and Torres Strait Islander peoples in decision-making that affects their interests, including through a constitutionally enshrined representative voice. There should be effective parliamentary oversight for outcomes on indicators of well-being for Aboriginal and Torres Strait Islander peoples. An agreement or framework for negotiations with Indigenous Australians should be developed, to recognise and address the structural inequalities brought about by colonisation and the consequences of past and ongoing injustices, through truth and reconciliation processes. FREE AND EQUAL An Australian conversation on human rights 2019 • adequate time and resources be given to parliamentary committees to consider the human rights implications of Bills and proposed legislative instruments before Bills are considered further by parliament • there be an opportunity for parliamentary debate about the content of parliamentary committee reports that raise human rights concerns62 • the government table a response to parliamentary committee reports that raise human rights concerns about specific Bills or legislative instruments, included PJCHR reports, before passing the relevant law • all parliamentary committees have regard to the human rights implications of a Bill or inquiry that comes before it. Further, more resources could be given to the PJCHR to provide routine general and tailored guidance and assistance to policy makers in the policy development and legislative drafting stages to ensure human rights compliance informs decision making.63 The Australian Government co-sponsored the UNGPs and has committed to domestic implementation.65 While the Modern Slavery Act 2018 (Cth) was recently passed, this legislation only imposes a reporting requirement on businesses and is limited to modern slavery risks and impacts. Enhancing engagement with international human rights processes Australia could deepen its engagement with international human rights mechanisms and processes, to ensure that human rights concerns identified by the international community are adequately addressed and that future similar violations are prevented. For example, improvements could be made to: • consideration of any communications, views and reports transmitted by United Nations human rights mechanisms, by providing more timely and public responses to adverse findings • the implementation of Universal Periodic Review (UPR) recommendations, such as through public evaluation, adoption of independent oversight mechanisms, and funding commitments including to support civil society organisations to participate in the UPR • identifying and adopting voluntary UPR commitments. Establishing an obligation for business to conduct human rights due diligence Recognising economic, social and cultural rights in practice Australian businesses should be required to conduct human rights due diligence, to identify, prevent, mitigate and account for any adverse human rights impacts. Passing legislation to implement these obligations would align with the United Nations Guiding Principles on Business and Human Rights (UNGPs). The UNGPS were unanimously endorsed and adopted by the United Nations Human Rights Council in 2011.64 They provide that: The human rights issues faced by Australians increasingly regard economic and social challenges, such as access to affordable housing, childcare and health services. Much more could be done to meet Australia’s commitments under the International Covenant on Economic and Social and Cultural Rights (ICESCR) through our laws, policies and procedures. • the government has a duty to protect against human rights abuses by third parties within its territory and/or jurisdiction, including abuses by business enterprises • businesses have a responsibility to respect human rights, including by conducting human rights due diligence • victims of business-related human rights abuse must be given access to an effective remedy. The progressive realisation obligation requires that the government take all necessary steps, to the maximum of its available resources, to realise economic, social and cultural rights. It includes that governments should duly observe human rights when making decisions about resource allocation, spend efficiently and effectively to improve the enjoyment of human rights, and ensure that the realisation rights is advanced over time without regression. FREE AND EQUAL An Australian conversation on human rights 2019 19