An end to the patchwork quilt? The guarded potential of the PJCHR’s inquiry into Australia’s human rights framework

ABSTRACT

Australia’s Human Rights Framework is over a decade old, and the patchwork quilt of protections is fraying at the seams, unable to deliver the human rights protection needed. Yet, the Commonwealth Attorney-General’s referral of an Inquiry into Australia’s Human Rights Framework to the Parliamentary Joint Committee on Human Rights (PJCHR) offers an opportunity for ambitious reform. This commentary provides an overview of the work of the ongoing Inquiry into Australia’s Human Rights Framework to date and an analysis of the guarded potential for ambitious human rights reform through the long-overdue enactment of a Federal Human Rights Act.

KEYWORDS:

• Bill of Rights
• Human Rights Act
• law-making and human rights
• domestic human rights implementation

Introduction

Australia’s patchwork quilt of human rights protection is over a decade old and is fraying at the seams.¹ Even at the beginning of its life, Australia’s Human Rights Framework did not meet public commitment to human rights protection. Despite recommendations from its own independent inquiry to enact a Federal Human Rights Act,² the Rudd Government chose a weaker option which has meant that the Parliament and executive have dominated the Human Rights Framework at a federal level. The Australian Capital Territory (ACT), Victoria and Queensland have each enacted more ambitious human rights protections³ and have developed a sophisticated human rights jurisprudence,⁴ though not without serious enforcement deficiencies. The result is a geographical lottery concerning the extent to which sufficient laws exist to recognise, protect, and enforce human rights.

It is against this background that the Parliamentary Joint Committee on Human Rights’ (PJCHR) Inquiry into Australia’s Human Rights Framework provides guarded potential for ambitious reform of human rights protection at a federal level, including through a Federal Human Rights Act. This commentary provides an overview of the work of the ongoing Inquiry and an analysis of the guarded potential of the long-overdue enactment of a Federal Human Rights Act. I begin with a recap of the well-traversed ground of Australia’s current patchwork quilt of human rights protection, articulating the urgency for human rights reform at our present moment. I then provide an overview of the opportunity for reform presented to us, looking at the background leading to the Inquiry and the work of the Inquiry to date. Finally, I analyse the guarded potential for reform. With the Inquiry due to release its report by an extended deadline of 30 May 2024, I question whether, in the midst of a crowded agenda, the Albanese Government has either the capacity or political capital to deliver a Federal Human Rights Act, or whether, this reform will remain out-of-reach and contingent on the perils of the election cycle, as has been the case in the past.

Australia’s fraying patchwork quilt of human rights protection

Australia’s human rights protections are fragmented and piecemeal, adopting a ‘patchwork’ approach to human rights which has been described by the 2009 National Human Rights Consultation Committee as ‘fragmented and incomplete’ with ‘inadequacies … felt most keenly by the marginalised and the vulnerable’.⁵ Some 14 years on, these words remain an apposite description. As Julie Debeljak explains, it is an approach which sees the executive and the Parliament with a ‘monopoly over the breadth and depth of human rights protections in Australia’ because of:

[A] paucity of constitutionally protected human rights, the piecemeal and fragile nature of statutory human rights protections, the limited recourse to human rights available to the judiciary, the inability of conventional doctrines to protect human rights, the inadequacy of pre-legislative human rights scrutiny obligations, and the limited domestic impact of our international human rights obligations.⁶

Such a system means that ‘the executive and Parliament are subject to few human rights constraints when developing, enacting and executing laws and policy’ and such a system, unsurprisingly, ‘fails to comprehensively protect human rights’.⁷

It is now more than a decade ‘since Australia underwent an extensive consultation about whether we should join the majority of Western nations and enact a Bill of Rights’.⁸ Although the National Human Rights Consultation Committee recommended that Australia enact such legislation, noting the importance of human rights to the Australian people,⁹ the then government rejected this recommendation ‘and instead chose the softer option of developing a national human rights framework’.¹⁰ This policy framework was intended by the then government to ‘complement[] the many other measures the Australian Government ha[d] already undertaken to encourage full participation in our community’ and to ‘reflect the key recommendations made by the Consultation Committee’.¹¹ The framework itself contemplates that it is out of step with ‘overwhelming’ public support for a Human Rights Act, opting not to enact such legislation because of concerns about ‘possible consequences’.¹²

State and territory jurisdictions have moved ahead of the Federal Parliament. Victoria and the ACT had already enacted legislative human rights protection prior to the Committee’s report in 2004 and 2006 respectively, and Queensland subsequently enacted such human rights protections in 2019. While this helps fill the void caused by the lack of stand-alone federal human rights protections, it ‘reflects and reinforces the patchwork quilt approach to human rights in Australia, with individuals’ protections varying according to geography’.¹³ We have seen this regional variation in human rights protection most prominently ‘during the global pandemic when governments’ responses involved coercive controls ranging from curfews and lockdowns to border closures and enhanced police powers. These circumstances highlighted the disparity in human rights protections, particularly for vulnerable people’.¹⁴

The opportunity for reform

At the 2022 Annual Castan Centre for Human Rights Law Conference, the Commonwealth Attorney-General-General addressed the then-incoming federal government’s commitment to restoring a human rights-based approach to federal government. While the Attorney-General’s speech did not focus on a Human Rights Act specifically, he highlighted the government’s belief in the entitlement of all people ‘to respect, equality, dignity and the opportunity to participate in the social, cultural and economic life of our nation’.¹⁵ The Attorney-General rightly pointed out, however, that ‘principled statements about the importance of human rights are not enough—the onus is now on us, the new Albanese Labor Government, to make the necessary changes to enshrine these values in the laws of our nation’.¹⁶

On 15 March 2023, the Attorney-General referred an inquiry into Australia’s Human Rights Framework to the PJCHR to be finalised by 31 March 2024. While the Attorney-General’s referral specified the PJCHR must consider the re-establishment and improvement of Australia’s Human Rights Framework, it did not specifically refer to considering a Federal Human Rights Act.¹⁷ The Attorney-General’s media release of 22 March 2023 was similarly worded, without specific reference to a Federal Human Rights Act.¹⁸ The Attorney-General did, however, refer to its May 2022 election commitments relating to improving and expanding anti-discrimination laws.¹⁹ The PJCHR accepted the Attorney-General’s referral and specifically sought submissions into:

1. whether the Federal Parliament should enact a Federal Human Rights Act;

2. whether existing federal human rights protections are adequate, and whether improvements should be made, including to the PJCHR and the Australian Human Rights Commission; and

3. the effectiveness of existing standalone human rights legislation enacted in the Australian Capital Territory, Victoria and Queensland.²⁰

The PJCHR’s Inquiry has, at least in part, been structured around the Australian Human Rights Commission’s position paper on a Human Rights Act for Australia as part of its Free and Equal campaign on human rights.²¹ The Commission’s position paper was released in March 2023 and makes detailed recommendations for the enactment of a Federal Human Rights Act. Submissions received by the PJCHR are overwhelmingly in support of the enactment of a Federal Human Rights Act and there is a great deal of agreement with the Human Rights Act as proposed by the Commission.²² However, a number of submissions did seek to articulate different approaches to the Commission, particularly in the recognition and protection of economic, social and cultural (ESC) rights, with some advocating an approach to ESC rights more in keeping with contemporary scholarship and jurisprudence around the interrelatedness, interdependence and indivisibility of all human rights.²³

Submissions also overwhelmingly assume that comprehensive federal human rights protection will only be achieved through legislation. Indeed, the PJCHR’s call for submissions specifically canvases ‘whether the Australian Parliament should enact a federal Human Rights Act, and if so, what elements it should include’,²⁴ apparently directing submissions away from considering constitutional human rights protection. While constitutional human rights protection would be stronger than ordinary legislation, the aftermath of the Voice referendum has painfully laid bare the significant electoral difficulties of meeting the requirements of s 128 of the Constitution necessary to achieve constitutional reform. In this environment, statutory protection of human rights is the most pragmatic option for securing strong, legal protection of human rights at a federal level in Australia. Moreover, a Federal Human Rights Act does not foreclose the possibility of constitutional enshrinement in the future.

The Inquiry has received a very high level of public input with some 333 submissions received by the PJCHR from a wide range of individuals and organisations.²⁵ The Inquiry has also held six public hearings in Canberra, Brisbane, Melbourne and Sydney.²⁶ On 25 March 2025, the Attorney-General granted the PJCHR an extension for the submission of its report by 30 May 2024.²⁷

Can we be hopeful about the prospect of reform?

The Federal Government has already set itself a sizeable legal and human rights reform agenda. The Government has established a National Anti-Corruption Commission,²⁸ and has announced an intention to abolish the Administrative Appeals Tribunal and replace it with a new Administrative Review Tribunal.²⁹ More reform is on the horizon, with commitments having been made to Privacy Act reform,³⁰ and a new human rights-based Aged Care Act.³¹ The Royal Commission into Violence, Abuse and Neglect and Exploitation of People with Disability has also recommended significant reforms, including the enactment of a Disability Rights Act to recognise and protect the rights of persons with disabilities.³² The Australian Law Reform Commission’s Inquiry into Religious Educational Institutions and Anti-Discrimination Laws has also delivered its final report to the Attorney-General.³³ The Government's response to this issue has been to demand bipartisanship before any Bill to give effect to the Commission's recommendations is to proceed.³⁴ Such bipartisanship has not been forthcoming. It is within the background of this intransigence that the PJCHR was granted an extension for its report.

In a crowded agenda, while the Government is battling significant political pressures owing to rising cost of living, a volatile geopolitical environment, and sliding domestic popularity,³⁵ it remains to be seen whether ambitious reform of Australia’s Human Rights Framework can be committed to during the life of the current Parliament. In particular, it remains to be seen whether the convergences of these factors means that the Government instead favours more modest reforms, or commits to more ambitious reforms, including the enactment of a Federal Human Rights Act, if it is successful in securing a second term in 2025. The option of deferring reform would be consistent with the policy manifesto that the Australian Labor Party took to the 2022 election, which committed only to ‘review[ing] the Human Rights Framework’ and to ‘consider[ing] whether it should be enacted through a statutory charter of human rights or other similar instrument’.³⁶

It would not be the first time that Labor governments had committed to enacting a Human Rights Act, but when faced with the political pressures of the day, had retreated from or been unable to enact such legislative reforms. In the meantime, it appears that existing State and Territory instruments will continue to play an important—though piecemeal—role in the protection of human rights in this country. Indeed, reform is underway in these jurisdictions to respond to contemporary challenges with human rights solutions. For example, in October this year the ACT Minister for Human Rights introduced legislation before the ACT Legislative Assembly to recognise the right to a healthy environment in the Territory’s Human Rights Act.³⁷

Conclusion

It is a critical moment for Australia to replace its patchwork approach to human rights protection which has failed to secure the human rights of vulnerable groups. The Federal Parliament must now develop an integrated federal regime for the comprehensive protection of human rights through a Federal Human Rights Act that protects civil, political, economic, social and cultural rights which are essential for all people to flourish in freedom, equality and dignity. Such a regime of protection, underpinned by a well-resourced and independent national human rights institution in the AHRC and strong parliamentary scrutiny of human rights through the law-making process in the work of the PJCHR, will serve to respect, protect and fulfil the human rights of all people in Australia consistent with Australia’s existing federal structures, institutional frameworks and democratic values.

Yet we also stand on the precipice of once again failing to live up to the opportunity presented to us. It remains to be seen whether the government will proceed with bold human rights reform in a crowded political agenda or whether ambitious human rights reform might succumb to a lack of bipartisanship and day-to-day political pressures.

Acknowledgements

The author acknowledges the contribution of Professor Melissa Castan and Associate Professor Ronli Sifris in an earlier work upon which this article is based.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Scott Walker

Scott Walker is a Research Fellow at the Castan Centre for Human Rights Law. Scott’s research interests span international human rights law, health law, disability rights and the law affecting First Nations peoples. Scott is particularly interested in economic, social, and cultural rights and the domestic implementation of human rights law.

Notes

1 Commonwealth Attorney-General-General’s Department, Australia’s Human Rights Framework (Policy Framework, April 2010) (‘Australia’s Human Rights Framework’).

2 National Human Rights Consultation Committee, National Human Rights Consultation Final Report xxxiv–xxxviii (Recommendations 17-31) (Report, 2009) (‘National Human Rights Consultation Report’).

3 Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2019 (Qld).

4 See, Kevin Bell, ‘Certainty and Coherence in the Charter of Human Rights and Responsibilities Act 2006 (Vic)’ (Conference Paper, 9 August 2021) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3899704>; Scott Walker, ‘Interstate Human Rights Jurisprudence Confirms the Certainty and Coherence of the Victorian Charter, But We Can Learn a Thing or Two from Queensland’ (Castan Centre for Human Rights Law Blog, 23 November 2021) <https://castancentre.com/2021/11/23/interstate-human-rights-jurisprudence-confirms-the-certainty-and-coherence-of-the-victorian-charter-but-we-can-learn-a-thing-or-two-from-queensland/> accessed 20 November 2023.

5 National Human Rights Consultation Report (n 2) 127.

6 Julie Debeljak, ‘The Fragile Foundations of Human Rights Protections: Why Australia Needs a Human Rights Instrument’ in Paula Gerber and Melissa Castan (eds), Critical Perspectives on Human Rights Law in Australia (Thomson Reuters Lawbook Co 2021) vol 1, 39, 40.

7 Ibid 40–41.

8 Melissa Castan and Paula Gerber, ‘Taking the Temperature of Human Rights in Australia’ in Paula Gerber and Melissa Castan (eds), Critical Perspectives on Human Rights in Australia (Thomson Reuters Lawbook Co 2021) vol 1, 1, 1.

9 National Human Rights Consultation Report (n 2), xxxiv-xxxviii (Recommendations 17-31).

10 Castan and Gerber (n 8) 1.

11 Australia’s Human Rights Framework (n 1) 1.

12 Ibid.

13 Castan and Gerber (n 8) 1.

14 Ibid.

15 Mark Dreyfus, ‘Restoring a Human Rights-Based Approach’ (Castan Centre for Human Rights Law Annual Conference, 22 July 2022) <https://www.markdreyfus.com/media/speeches/restoring-a-human-rights-based-approach-castan-centre-speech-mark-dreyfus-qc-mp/> accessed 1 November 2023.

16 Ibid.

17 Letter of Referral from Mark Dreyfus KC MP, Commonwealth Attorney-General-General to Josh Burns MP, Chair of Parliamentary Joint Committee on Human Rights (15 March 2023) <https://www.aph.gov.au/-/media/Committees/Senate/committee/humanrights_ctte/Aus_Human_Rights_Framework/Referral_letter_from_AG_150223.pdf?la=en&hash=D3A7CDFDFCDC5D641D06169E5557BF95204B2C99> accessed 20 October 2023.

18 Mark Dreyfus KC MP, ‘Review into Australia’s Human Rights Framework’ (Media Release, 22 March 2023) <https://ministers.ag.gov.au/media-centre/review-australias-human-rights-framework-22-03-2023> accessed 27 October 2023.

19 Ibid.

20 Parliamentary Joint Committee on Human Rights, Terms of Reference <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/HumanRightsFramework/Terms_of_Reference> accessed 11 November 2023.

21 Australian Human Rights Commission, ‘A Human Rights Act for Australia’ (Position Paper, December 2022, released March 2023).

22 The following submissions from leading human rights advocacy organisations, academics and practitioners were reviewed to assess the support for a Federal Human Rights Act presented to the PJCHR: George Williams, Submission No 3 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (March 2023); Kaldor Centre for International Refugee Law, Submission No 13 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (June 2023); Julie Debeljak, Submission No 86 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (June 2023) (‘Julie Debeljak Submission’); Sarah Joseph, Submission No 36 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (undated); Laura Grenfell and Sarah Moulds, Submission No 50; to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (June 2023); Pamela Tate, Submission No 61 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (June 2023); UNSW Australian Human Rights Institute, Submission No 69 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (June 2023) Economic, Social and Cultural Rights Network (Australia & Aotearoa/New Zealand), Submission No 86 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (June 2023) (‘ESCR Network Submission’); Western Australia Equal Opportunities Commission, Submission No 95 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (undated); Asylum Seeker Resource Centre, Submission No 111 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (July 2023); SNAICC, Submission No 121 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (June 2023); Oxford University Bonavero Institute of Human Rights, Submission No 128 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (undated); Queensland Human Rights Commission, Submission No 124 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (July 2023); Bruce Chen, Submission No 158 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (undated); Castan Centre for Human Rights Law, Submission No 160 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (July 2023) (‘Castan Centre for Human Rights Law Submission’); Australian Capital Territory Human Rights Commission, Castan Centre for Human Rights Law, Submission No 176 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (July 2023); Kim Rubenstein, Submission No 221 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (July 2023); People with Disability Australia, Submission No 221 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (June 2023); National Justice Project, Submission No 225 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (July 2023); Human Rights Law Centre, Submission No 232 to Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (July 2023).

23 See eg, ESCR Network Submission (n 22); Castan Centre for Human Rights Law Submission (n 22) 14; Julie Debeljak Submission (n 22) 38–39.

24 ‘Inquiry into Australia’s Human Rights Framework’ (Parliament of Australia) <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/HumanRightsFramework> accessed 11 November 2023.

25 Parliamentary Joint Committee on Human Rights Inquiry into Australia’s Human Rights Framework, ‘Submissions’ (Parliament of Australia) <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/HumanRightsFramework/Submissions> accessed 20 November 2023.

26 Parliamentary Joint Committee on Human Rights Inquiry into Australia’s Human Rights Framework, ‘Public Hearings’ (Parliament of Australia) <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/HumanRightsFramework/Public_Hearings> accessed 20 November 2023.

27 Letter from Mark Dreyfus MP KC to Josh Burns MP, 25 March 2024 <https://www.aph.gov.au/-/media/Committees/Senate/committee/humanrights_ctte/Aus_Human_Rights_Framework/AG_Extension_Granted_260324.pdf?la=en&hash=73E716082A9B84590D31433E0B5674B57DC1EFC3> accessed 9 April 2024.

28 National Anti-Corruption Act 2022 (Cth).

29 Attorney-General-General’s Department, ‘A New System of Federal Administrative Review’ (Australian Government) <https://www.ag.gov.au/legal-system/new-system-federal-administrative-review> accessed 14 November 2023.

30 Australian Government, Response to Privacy Act Review (September 2023).

31 Department of Health and Aged Care, ‘A New Aged Care Act’ (Australian Government) <https://www.health.gov.au/our-work/aged-care-reforms/aged-care-legislative-reform/a-new-aged-care-act> accessed 14 November 2023.

32 Royal Commission into Violence Abuse, Neglect and Exploitation of People with Disability, Final Report (September 2023) vol 4, 17 (Recommendation 4.1).

33 Australian Law Reform Commission, Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws, Report No 142 (21 March 2024).

34 Paul Karp, ‘Australia's Religious and Sex Discrimination Laws Need Fixing, A New Report Says. What Happens Next?’, The Guardian Australia (Sydney, 23 March 2023) <https://www.theguardian.com/australia-news/2024/mar/23/australias-religious-and-sex-discrimination-laws-need-fixing-a-new-report-says-what-happens-next> accessed 8 April 2024.

35 Katharine Murphy, ‘Most Voters Now Disapprove of Anthony Albanese’s Performance as PM, Guardian Essential Poll Finds’ The Guardian Australia (Sydney, 28 November 2023) <https://www.theguardian.com/australia-news/2023/nov/28/most-voters-now-disapprove-of-anthony-albaneses-performance-as-pm-guardian-essential-poll-finds> accessed 28 November 2023.

36 Australian Labor Party, ALP National Platform (March 2021), 80, para 5.

37 Human Rights (Health Environment) Amendment Bill 2023 (ACT).