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Focus: National human rights report

15 October 2009

In brief: The National Human Rights Consultation Report was released on 8 October 2009. Partner Ross Drinnan (view CV), Senior Associate Rachel Nicolson and Lawyer Jess D'Souza summarise the report's recommendations and consider the potential impacts on corporations.

How does it affect you?

  • The report recommends the introduction of a federal human rights act that would apply to 'federal public authorities', including bodies that perform public functions on behalf of such authorities. It further recommends that individuals should be able to bring cases against such bodies for breach of human rights and that the available remedies should include damages. If the Government follows those recommendations, private companies that perform public functions on behalf of Federal Government agencies could be sued for breaching human rights and could be liable to pay monetary compensation for such breaches.
  • Further, private companies that are not bound to comply with a federal human rights act could be contractually obliged to respect protected rights under agreements with public authorities.
  • The report recommends that any federal human rights act should require courts to interpret legislation in a manner that is compatible with the rights protected under that act and consistent with the legislation's purpose. This would include laws that affect private companies.
  • The report also recommends that any federal human rights act should require public authorities to give proper consideration to relevant, protected rights (including economic and social rights) in making decisions. This includes decisions that affect corporations, such as a decision about whether to grant a statutory lease or licence. In such circumstances, public authorities could be deterred from dealing with private companies that do not comply with protected rights.

Background

In December 2008, the Federal Government launched a public consultation on the promotion and protection of human rights, implementing a promise made by the Labor Party during its 2007 election campaign. The national consultation was undertaken by a committee chaired by Father Frank Brennan.

The committee received 35,014 written responses to its call for submissions. It also conducted 66 community roundtables, held three days of public hearings, commissioned consultants to conduct economic analysis and social research, engaged with the community through the Internet and met with organisations and individuals.

The report states that '[m]ost of the people who attended the community roundtables and presented written submissions to the Committee wanted to see greater protection and promotion of human rights and responsibilities.' On the other hand, the results of the social research commissioned by the committee indicated that the majority of Australians believe that their rights are adequately protected.

The role of the private sector is specifically addressed in the report, which notes the submission made by Professor John Ruggie (the United Nations Special Representative on Business and Human Rights) that the Australian Government should adopt the 'Protect, Respect and Remedy' framework that was proposed by him in 2008. This framework was unanimously welcomed by the United Nations Human Rights Council and was the subject of our May 2008 Corporate Responsibility Focus. The report also notes specific suggestions from other submissions, such as a proposal to include human rights provisions in government contracts and a proposed requirement that human rights impact statements be prepared for significant projects involving public-private partnerships.

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Creating a federal human rights act

The committee recommends introducing a federal human rights act, the key features of which are described below.

What sort of model is proposed?

The Federal Government stipulated that the committee was not to recommend a constitutionally entrenched bill of rights (the key feature of which is that the courts can strike down laws that violate protected rights). Consistent with that proviso, the report advocates a 'dialogue' model of statutory human rights protection.

Under such a model, human rights are protected by ordinary legislation. Courts can declare that a law is inconsistent with protected rights, but such a declaration does not affect the validity of the law. The decision to amend or repeal a law in response to a declaration of incompatibility rests with Parliament. This approach has been adopted by the Australian Capital Territory, Victoria and the United Kingdom.

The report recommends that, under any federal human rights act, the High Court should have exclusive power to make declarations of incompatibility. If it is 'impractical' for the High Court to perform that function, the report states there should be no formal power for courts to make such declarations.

What rights would be protected? Would those rights be absolute?

The report takes the position that the Federal Government should protect and promote the rights contained in seven human rights treaties ratified by Australia. Among those treaties, the most notable are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

According to the report, if economic, social and cultural rights (such as the right to an adequate standard of living) are included in a federal human rights act, those rights should not be dealt with by the courts. Instead, complaints relating to such rights should be brought before the Australian Human Rights Commission.

The report recommends that six 'non-derogable' civil and political rights should be included in any federal human rights act and that those rights should be absolute. These rights include the right to life and the right to protection from cruel, inhuman or degrading treatment.

The report further recommends several 'derogable' civil and political rights, including the right to freedom of movement, the right to property and the right to freedom of expression. According to the report, a federal human rights act should allow such rights to be subject to reasonable limits that can be justified in a free and democratic society, taking into account relevant factors.

Whose rights would it protect?

If a federal human rights act is introduced, the report recommends that it protect the rights of people in Australia, as well as individuals overseas who are subject to Australian jurisdiction. If this recommendation is adopted, entities that are bound by the act would be required to comply with an Australian human rights act when undertaking certain extraterritorial activities.

The report recommends against giving human rights to corporations, stating that a federal human rights act should be for the benefit of human beings only.

How would it protect rights?

The report recommends that any federal human rights act should:

  • require courts to interpret legislation in a way that is compatible with protected rights and consistent with the legislation's purpose;
  • bind 'federal public authorities', including federal Ministers, bodies created by federal laws and undertaking public functions, and private companies that perform public functions on behalf of federal public authorities;
  • require federal public authorities to act in a way that is compatible with human rights (except for economic and social rights);
  • require federal public authorities to give proper consideration to relevant, protected rights (including economic and social rights) in making decisions;
  • enable an individual to sue a federal public authority for breach of their protected rights (other than economic, social or cultural rights), even if the individual does not have any other cause of action against the public authority;
  • empower courts to award the 'usual suite of remedies' for a breach of protected rights, including damages;
  • require statements to be tabled before Parliament that indicate whether proposed laws are compatible with protected rights; and
  • require a joint committee on human rights to determine whether proposed laws are consistent with protected rights.

As indicated above, if the committee's recommendations are followed, there will be direct and significant impacts on private companies that perform public functions on behalf of federal public authorities. Companies that deal with federal public authorities will also be affected. More generally, corporations may be impacted by shifts in the way that federal laws are made by Parliament and interpreted by courts.

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Other recommendations

The report also makes multiple recommendations separate to the enactment of a federal human rights act. Indeed, its first recommendation is '...that education be the highest priority for improving and promoting human rights in Australia.' In addition, irrespective of whether a federal human rights act is introduced, the report recommends that the Federal Government should:

  • audit its laws, policies and practices to ascertain whether they comply with international human rights obligations;
  • immediately put together a provisional list of rights, to be supplanted by a final list of international human rights obligations no later than two years after the provisional list is published;
    • require statements of compatibility to assess whether proposed laws are consistent with the Government's (provisional, and later final) list of rights;
    • create a joint committee on human rights to formally scrutinise proposed laws to determine compatibility with the Government's (provisional, and later final) list of rights;
  • create a whole-of-government framework for better integrating human rights into public sector activity and nominate a Minister to be responsible for that framework;
  • include human rights compliance in the Australian Public Service Values and Code of Conduct;
  • require federal Government bodies to formulate action plans and address human rights compliance in annual reports;
  • amend the Administrative Decisions Judicial Review Act 1975 (Cth) to make the Government's list of rights a relevant consideration in government decision-making;
  • expand the functions of the Australian Human Rights Commission;
  • improve access to justice; and
  • take special steps with respect to the rights of Indigenous Australians.

If a federal human rights act is not introduced, the report recommends the amendment of the Acts Interpretation Act 1901 (Cth) to require courts to interpret federal laws consistently with the Government's list of rights, as much as it is possible to do so consistently with the legislation's purpose.

As with the potential introduction of a federal human rights act, many of these proposed steps could have tangible impacts on private companies.

The report is available for download from the National Human Rights Consultation website.

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