Acknowledgement of Country 

I begin by acknowledging the traditional owners of the land on which we meet today, the Wurundjeri Woi-wurrung and Boon Wurrung people of the Kulin nation.

 

I pay my respect to their elders past, present, and emerging, and I extend that respect to any Aboriginal and Torres Strait Islander people who are here with us tonight.

 

As you all know, there are deep scars that exist for our first Australians.

 

And to this day, Indigenous communities across the country are still suffering the ongoing impacts of the human rights breaches and abuses that previous Australian governments placed on them.

 

And as we are talking about the need for a domestic human rights act, recognizing that history and outlining means to prevent from repeating are part of our mission to improve the rights of Australians.

 

Our committee made recommendations to help Australia realise and action the United Nations Declaration on the Rights of Indigenous Peoples, including by incorporating it into the functions and considerations of our Human Rights committee.

 

And in the draft Human Rights Bill that our committee prepared, we outlined the rights of first peoples and their connection to land and country.

 

Senator Jana Stewart and Senator Lidia Thorpe both participated in our inquiry and I thank them both for their work. 

 

Introduction

My name is Josh Burns and I am the Federal Member for Macnamara in Melbourne's Inner southeast.

 

Our beautiful community is diverse. From the waterfront workers who lived and worked in Port Melbourne to the vibrant culture of St Kilda. Macnamara is home to people from all over the world.

 

The beauty of Macnamara is our diversity and multiculturalism. In fact, that’s the beauty of our whole nation. We come from different corners of the world, but becoming a citizen of Australia means that we are all equal before the law.

For my family, they fled to Australia to escape persecution and discrimination. My grandmother was deemed unequal before she was even old enough to read. She and her parents found a home of opportunity, freedom and equality– right in the heart of my electorate.

 

It is the lessons I have taken from my grandparents which instil in me the importance of protecting our human rights – the very rights that ensured my family could live a safe and free life in Australia.

 

I know the experience of my family is similar to Australians all over the country. While Australia has been a beacon of opportunity for so many of us. The reality is – we need to do more to protect our human rights today.

 

We need to ensure that no matter who is in government or what happens in the world, that the rights and freedoms of Australians are protected.

 

That we respect the rights of every citizen and person in our country, and those in our care as well. 

It is a great privilege to stand here at the Alan Missen Oration.

 

While the late senator and I came from different sides of the political aisle, there is much we have in common.

 

Throughout his life, he was an advocate for improving civil liberties and human rights for not only Australians, but vulnerable communities around the world. He spoke out against racial discrimination in South Africa long before the issue gained wider importance, he was a passionate advocate for First Nations Australians, and a strong supporter of an Australian Human Rights Commission.  

 

The inaugural Alan Missen oration was delivered by Justice Michael Kirby.

A few months ago, just after we released our committee’s report, I stood on stage with Justice Kirby in front of hundreds of human rights advocates and experts. Justice Kirby is one of the leading voices pushing for an Australian Human rights Act.

 

And I am honoured to be given this opportunity and thank the University of Melbourne Law school for hosting me today, and for allowing me to add a few words to our national conversation about the need to improve human rights protections in Australia.

 

Why? 

 

So, is there a problem? Does Australia have a human rights problem?

 

Do we need greater protections in law?

 

The honest answer is this.

 

Australia, like many democracies does a fairly good job at protecting and respecting people’s rights. However, there have been some significant moments where people in Australia have had their rights violated, and Governments in Australia have enacted policies and laws that are simply incompatible with human rights.

 

The most egregious examples of human rights abuses in the past decade have been exposed by several royal commissions.

 

The Royal Commission into the Robodebt Scheme found that government acted with little regard to the welfare of its people, especially vulnerable people in a scheme that was illegal and harmful.

 

The royal commission into aged care documented the human rights violations of older people who have been abused and neglected in our country’s institutions.The aged care system failed to meet the needs or rights of our older citizens such as the social and economic rights like the right to an adequate standard of living. 

 

Another example is the findings from the Royal Commission into violence, abuse, neglect and exploitation of people with a Disability.Too often, in out committee deliberations, we see people with a disability overlooked in government decision making and legislation.

 

We could go through other examples, especially deeper in Australia’s history. But the point is that, even in modern day Australia, our rights have been overridden and overlooked by successive governments.

 

Now let’s imagine if the Government had to, by Law, consider that every Australian citizen and those under our care had to improve the right to adequate standard of living, every single time there was a piece of law or a decision of the Government that involved the distribution of resources.

 

What would social security, aged care and disability support look like if human rights was a legal requirement of Government at every stage of policy making? 

 

I'm sure Governments would argue that they are already acting with compatibility with human rights, so why not legislate it to ensure they are? 

 

Over the past five years, the Australian Human Rights Commission examined Australia's existing human rights, and our anti-discrimination laws. 

 

Their project is called Free & Equal, and their report, which was released at the end of last year, made 12 recommendations, with the establishment of a Human Rights Act at the heart of it. 

 

The Parliamentary Joint Committee on Human Rights, of which I am the Chair were then given a terms of reference by the Attorney General to examine Australia’s human rights framework.

 

We spent eight months inquiring and engaging with Governments, experts and civil society. And our findings were that significant improvements are required to ensure Australia complies with our Human Rights obligations.

And that reform is needed to ensure we have a modern human rights framework that protects the rights of the people of Australia.

 

The human rights act is the biggest missing piece of our human rights framework, because without a legislative framework to guide education and policy development, we remain the only liberal democracy to not have a Human Rights Act or Charter. 

 

Human rights are equal, they belong to each of us. And a legislated outline of what rights are afforded to each of us would help protect them and help build a culture in Government actively promotes and considers the rights of Australians at every point in government decision making.

 

That is what a human rights act will achieve.

 

So how do we get there?

 

This is not the first-time recommendations for a Human Rights Act have been handed down in Australia.

 

In the Australian Labor Party’s 2007 National Platform, there was a commitment to establish an inquiry and consultation process to gauge the need and support for statutory protection of rights. And just over a year later in November 2008, the Rudd Government established a National Human Rights Consultation Committee to undertake a review.

 

The committee received over 35,000 written submissions – the largest at the time for a national consultation in the country.

 

The committee produced a report outlining a range of weaknesses with Australia’s existing human rights protections and listing several recommendations for the Government to consider.

 

One of those recommendations was the establishment of the  Parliamentary Joint Committee on Human Rights, of which I now chair.

 

The role of the Committee as outlined in the Framework is to scrutinize legislation to check for compliance with human rights treaties.

 

The Labor Government responded to the report by creating Australia’s Human Rights Framework. The Framework included increasing funding for the Australian Human Rights Commission, the establishment of the Parliamentary Joint Committee and the development of a National Human Rights Action Plan.

The committee was established in 2012 and tabled its first report in August of that year. Our committee looks at the domestic human rights compatibility in Australia by publishing independent legal advice and a committee view on every piece of legislation that engages human rights.

 

Our committee considers hundreds of bills and thousands of legislative instruments every year. And importantly, all our scrutiny reports are publicly available to anyone to view.

 

After the original consultation committee presented their review to the then Rudd Government in 2010, the government accepted all the recommendations except one – the establishment of a Federal Human Rights Act, with the plan to review the framework again into its viability in 2014.

 

With a change of government, that never happened.

 

And so, over a decade later in March last year, the Attorney General Mark Dreyfus called on our committee to launch an inquiry into Australia’s current human rights framework.

 

For our inquiry into Australia’s human rights framework, we received over 300 submissions and over 4000 individual letters from community groups, experts and human rights organisations nationwide. 87% of all submissions supported the establishment of a Federal Human Rights Act as the missing piece in Australia’s Human Rights Framework.

 

What became clear throughout our inquiry is that while the 2010 framework did make significant improvements to human rights compliance in Australia, the reality is many of the commitments were discontinued under the change of government.

 

The only thing that is left from the original framework is the work of our committee.

 

Human Rights protections shouldn’t peak and trough depending on the political persuasion of the Government.

 

We should have standards. Australian standards. Of rights that are protected, in law, for every person in our country, and those in our care.

 

Of course, a human rights act is not an unprecedented idea in Australia or around the world - Victoria, the ACT and Queensland all have their own human rights acts or charters.

 

As I previously mentioned, we are the only liberal democracy without a human rights act.

 

What would a human rights act do?

A human rights act would give legal protections to the rights of each person. And that's exactly what has happened in Victoria, ACT and Queensland.

 

Those human rights acts or charters are not perfect.

 

They have not prevented every single policy that infringed on the rights of citizens.

 

And in our drafting of what an example federal human rights bill would look like, we designed a contemporary bill with reference to the three existing bills.

 

However, there have been significant benefits from having human rights acts in our two states and one territory.

 

The Victorian Charter includes “prompting identification of potential issues in advance”, and following the implementation of the charter, the Victoria Police Human Rights Unit Projected identified numerous policies and practices which had the potential to breach human rights. This resulted in a review of custody policy in regard to police cells and holding rooms.

 

Another example is in the ACT, the human rights and discrimination commissioner raised their concern that polices meant children and young people who were granted refugee status or were seeking asylum, were charged for education while living in Canberra. The commissioner worked to develop new policies so that ACT public education is free for all young Australians AND those under our care.

 

And in Queensland; the health department reviewed their procedures at a particular hospital which had prohibited the use of electric scooters. To ensure freedom of movement is protected and promoted the procedure was then modified and now proper consideration will be taken to each circumstance.

 

A federal human rights act means that instead of human rights being an after-thought, there is an embedded requirement of human rights in every stage of decision-making and policy development.

 

Obviously, we can’t click our fingers and give everyone a home. But imagine what could happen if government had to positively consider the right for every person to have access to a safe and secure house when presenting the federal budget and drafting housing legislation.

 

For that is the legal requirement of social and economic rights. Not to immediately fix every problem, but to legally ensure that improvements are made at every opportunity.

 

Our committee has drafted an example human rights act, based on the model of the Human Rights Commission, which would incorporate human rights derived from the core international human rights treaties to which Australia is a party.

 

This would include civil and political rights, as well as economic, social and cultural rights.

 

Here in Victoria, economic, social and cultural rights are explicitly missing in the Victorian charter.

 

Rights such as the right to a healthy environment, the right to an adequate standard of living, the right to education, the right to housing and the right to work.

 

Our committee put forward a modern and ambitious model for a Human Rights Act. We did our best, but we also do not have all the resources of the Attorney-General’s department. 

 

There are legal and constitutional questions that remain.

 

My call to action, standing in the University of Melbourne, in front of some of the finest legal minds in our country, is to read the draft bill and try to answer the outstanding questions.

 

Keep the conversation going. Tell us what we got wrong, and what we could improve.

 

For just like the implementation of social and economic rights, the road towards greater human rights protections is gradual.

 

Before I finish with some of the other recommendations of our inquiry, I want to address two of the main criticisms of the concept of a human rights act.

 

First is that a human rights act would result in an avalanche of litigation. The experience and evidence from the three jurisdictions in Australia and internationally is that this is simply not the case.

 

And for the occasional matter that needs to be tested in a court.

 

So be it.

 

We are a democracy after all, and matters can and should be heard in a court of law. For all other matters, the Human Rights Commission should assist in resolving potential human rights breaches in a timely and accessible manner, including in court if necessary.

 

The second concern raised throughout our inquiry was made by a range of religious organisations who wanted the United Nations wording of protections of the rights of people to hold and practice religion to be adopted, instead of the slightly modified language proposed by the Australian Human Rights Commission.

 

The committee agreed to those recommendations and drafted our example bill with that in mind.

 

Other than those two policy concerns, the main opposition to a Human Rights Act is a political one.

The opposition voted against the recommendation of the act, as is their right. However, just as we have seen with other policies, that despite initial partisan differences, once a policy as significant as a human rights act is implemented, it is extremely politically costly to remove.

 

While the Human Rights Act is the lynchpin, we also made a number of recommendations to improve the ‘rights mindfulness’ earlier in the policy development process.

 

This begins with education.

 

A survey conducted by Amnesty International revealed that half of all Australians already believe that Australia has a federal human rights act - with only 15% being aware that we do not. 

 

It is clear that Australians do not have an understanding of what rights of theirs are protected, and even more concerning is therefore Australians don’t know when their rights have been violated.

 

Now what about vulnerable communities such as First Nations Australians and people with a disability?

 

The development of education resources must be done in consultation with vulnerable groups, and there must be regard for tradition and cultural sensitivity.

 

There needs to be a culture change around the conversation on human rights in all aspects of policy development.

 

Public servants and departments need to have access to resources and expertise to develop their own understanding of human rights. There should be mandatory training for all Australian public service employees, and public sector staff. 

 

One of our recommendations was the establishment of specialised human rights units in each government department - to provide tailored advice on the applicability of human rights within each portfolio.

 

While the Australian Newspaper described a Government Department without a Human Rights Unit as an ‘armpit without fleas’, for those of us who believe in our institutions, and as someone who has experience in assessing the varying human rights capabilities of our federal government departments, having a unit that has expertise in human rights will improve policy making in our country. 

 

There needs to be greater accountability and transparency regarding human rights. 

 

We have suggested that Parliamentary Joint Committee on Human Rights be given the power to examine human rights matters, without referral from Government. And to have a greater role in the passage of legislation that engage human rights. 

 

We also recommended that the attorney general report to parliament annually on our country’s compliance with human rights.

 

So what comes next?

We are a parliamentary committee, and we have made our recommendations to government, and I am very proud of them. But it is through the efforts of civil society to keep a human rights act on the agenda.

 

We have taken in the submissions from thousands of Australians, we have worked with the human rights commissions, and we have consolidated the need for a human rights act.

 

But we need the public to read the report, read the draft bill and scrutinise it. We need you to ask questions - Please tell us what is missing, and what can make it stronger.

 

That is our democracy at work. That is how we keep the conversation going.

 

We each need to be active players, pushing for the change we know we need.

 

I am incredibly privileged to be the chair of such an important parliamentary committee.

 

A Human Rights Act is bold but not unprecedented.

 

It will strengthen the international human rights principles we have already signed up to. But it's an actualisation of our Australian principles; of fairness, respect and equality.

 

A human rights act means stating clearly and legally, that each and every person has equal rights that are protected by law, and that is something I am proud to campaign for.

 

The road to meaningful societal civil and human rights improvements have historically been slow and gradual, but it is our collective responsibility to push it forward.

 

For that is what our country deserves, our best effort to improve rights and living standards – for ourselves and our fellow citizens.

 

And for that, a Human Rights Act would be a meaningful step forward.