Various reforms to the Australian Human Rights Commission are required to better protect and realise human rights in Australia, writes Professor Ben Saul.
HUMAN RIGHTS experts have welcomed Labor’s plan to restore merit appointments to the Australian Human Rights Commission and to appoint a global ambassador for human rights. Nine years of partisan "captain’s picks" by the Coalition Government have shredded the Commission’s impartiality and subdued its voice as a champion of the vulnerable. Its funding has also been decimated.
Labor’s modest proposals do not go far enough. Putting aside the urgent need for a national bill of rights, the 1980s-era Commission is long overdue for root and branch institutional reform. It does excellent work in handling discrimination complaints. It has shown leadership on policy issues such as disability rights and gender quality.
On too many issues, however, the Commission is a lagger and not a leader. Its mandate and structure are no longer fit for purpose. It was created in 1986 when non-discrimination was rightly all the rage. This has led to most Commissioners being tasked mainly with anti-discrimination functions, concerning race, sex, disability and age.
Yet, non-discrimination is just one human right. There are 30 rights in the Universal Declaration of Human Rights of 1948, and many of these contain more specific rights. The Commission should not be stuck in the 1980s as a limited anti-discrimination body. As its legislation says, all human rights are "indivisible" and must be equally protected.
At present, only the commissioners for Indigenous and children’s rights, plus the Human Rights Commissioner, have a more general remit. The first two do not protect all Australians. Human Rights Commissioners have tended to focus on civil and political rights, and sometimes on only some of them.
Some Commissioners have taken a narrow and divisive ideological approach to freedoms of speech and religion. Discrimination commissioners can consider other rights in the context of discrimination, but not otherwise.
All of this means that the Commission has largely ignored that half of human rights called economic, social and cultural rights. These include rights to healthcare, education, housing, work, and social security. Indeed, these are everywhere in the current election campaign, as in the rising cost of living and inflation, stagnant wages, workers on strike, insecure work, unaffordable houses and rent, hospitals in crisis, food insecurity, welfare below the poverty line, and unfair transfers of public money to private schools.
Yet, there is not a whisper from the Commission about issues so fundamental to the dignity of all Australians, just as the Commission was barely heard during the height of the COVID restrictions.
Australia was a leader in pushing to include economic and social rights in the Universal Declaration in 1948. Over time, there has been bipartisan support for central planks of Australian prosperity such as accessible and affordable public education and healthcare, a decent living wage, and a social security safety net. But there are many rough edges which would benefit from human rights-based scrutiny through a reformed Commission.
Why should we have a commissioner for freedoms of speech and religion, but not ones for equally fundamental rights to an adequate standard of living, decent work rights, and accessible and affordable healthcare, education, and housing?
Why shouldn’t Australians enjoy independent expert legal scrutiny of government policy in these areas and not just suffer as usual pork barrel and bearpit majority politics, and uncorrected market failure?
Economic and social rights do not mean that the government has to give everyone a job, a free house, a free university degree, or pay for their cosmetic surgery. They do mean that the government must have a rational plan for progressively realising the minimum rights essential to human dignity, using the maximum resources available, whether delivered through the public or private sectors.
Economic and social rights are also consistent with our democratic system. Government still decides policy and allocates funds, while human rights provide benchmarks for checking and improving policies to ensure that no one is left behind. Looking after the underdog, and holding politicians to account, are quintessentially Australian.
Democracy is not just majority decision-making, but also protecting the rights of the vulnerable with no voice.
Many other reforms could be made to the Commission. It needs stronger legal powers, staff and funds to investigate human rights violations on its own initiative, not only in response to complaints. It should have the power to investigate government violations overseas and corporate violations here or abroad.
It should be enabled to intervene more easily in court cases. More coordination and solidarity amongst Commissioners is needed, since they sometimes work unproductively in siloes, fuelling turf wars over resources and influence.
An independent governance board could prevent budgetary and staff mismanagement. It also needs more money, commensurate with its role in safeguarding the rights of 25 million Australians.
Crucially, the Commission needs greater respect from politicians, who should stop being so thin-skinned about human rights criticism and stop bullying human rights people for doing their job. The Commission often engages in quiet diplomacy with the Government, although it is hard to tell from the outside how successful this is.
But it should not have to fear recrimination for shouting from the rooftops when the Government lights a fire under human rights and refuses to put it out.
Ben Saul is Challis Chair of International Law at the University of Sydney.
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