Human Rights Act
Summary:
- Australia’s implementation of international human rights is incomplete – including not protecting religious freedom
- The Australian Human Rights Commission has proposed a human rights act that
- Redefines internationally defined rights in a manner that waters down religious freedom
- Invents a new right to “not be treated with contempt”
- Subordinates religious freedom under other rights
- Requires public authorities to implement this modified rights structure throughout their organisations.
We are calling on the Government to fully protect our religious freedoms in accordance with Article 18 of the ICCPR when considering a possible Human Rights Act.
A Human Rights Act for Australia?
It has been widely recognised for many years that Australia’s protection of human rights is incomplete and completely misses some areas of international agreements.
“Australia is the only liberal democracy in the world that does not have a national act or charter of rights that explains what people’s basic rights are and how they can be protected.” – Australian Human Rights Commission
In light of this, there are regular conversations as to whether Australia needs a comprehensive human rights framework – such as a charter or a bill of rights. The intended purpose of this kind of framework would be to state what human rights are to be protected in Australian law, give clear definitions of these rights, and describe how to protect them and what happens when these rights conflict.
At best, a human rights charter would fully implement the human rights treaties that Australia is a signatory to. First and foremost of these is the International Covenant on Civil and Political Rights (ICCPR) which protects, among other things, the “freedom, either individually or in community with others and in public or private, to manifest [their] religion or belief in worship, observance, practice and teaching.” This is the freedom that the Ruddock Review pointed out was missing in Federal legislation, and would have been protected by a robust Religious Discrimination Bill.
However, Australian religious organisations have long been wary with the idea of a charter of rights in Australia due to the concern that it would reduce the capacity for our elected parliament to make laws with respect to protecting human rights, while giving unelected courts and human rights bodies powers to enforce standards on contested rights issues outside of the democratic process. This may in turn erode our freedom of religion in Australia, especially when there is no explicit legislation protecting religious freedom. Any proposal for a human rights charter therefore requires careful consideration and debate by the Parliament and the wider community.
Australian Human Rights Commission proposal
In March 2023, the Australian Human Rights Commission (AHRC) published their latest position paper outlining their proposal for a Human Rights Act.
While claiming to protect religious freedom, the AHRC proposal actually undermines religious rights even further.
A good human rights act would implement the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory, in full. The ICCPR outlines Australia’s responsibilities to protect fundamental freedoms, including religious freedom, in legislation. The AHRC proposal instead re-defines and distorts the ICCPR rights and alters the balance between them so that religious freedom is always subordinated to other claims.
Instead of taking the wording and definitions of rights from the ICCPR, which have been carefully crafted by experts from a wide range of countries, the AHRC has re-written the descriptions of several rights. Some religious freedoms have been re-worded in ways that appear to limit them further, while the right for parents “to ensure the religious and moral education of their children in conformity with their own convictions” is completely removed.
At the same time, other human rights have been elevated above religious freedom. Freedom from discrimination receives especially privileged treatment, elevating it as an absolute right. However, rather than giving an objective definition of discrimination, the proposal defines it as “the same meaning as discrimination in federal discrimination laws (including any future discrimination legislation)”. Rather than codifying what is and is not discrimination so that laws can be measured against it, the proposal effectively states that discrimination is whatever the law says it is. Since there is no federal religious discrimination legislation, the proposed Human Rights Act does not protect religious freedom. In addition, the AHRC has proposed an entirely new “right not to be treated in a degrading way” that is not part of any international treaty, but they consider to be an absolute right. Since “degrading treatment” has no clear definition, this new “right” could be used to silence a wide range of otherwise legal behaviour.
The structure of the AHRC proposal means that any time there is a conflict between “freedom from discrimination” and “freedom of thought, conscience, religion and belief”, discrimination wins.
On top of this unbalancing of rights, the AHRC proposed a requirement on public authorities “to act compatibly with the human rights expressed in the Human Rights Act”. This includes “intensive measures to ensure cultural change and the adoption of a preventative approach to human rights within public authorities”. The AHRC has also proposed opt-in incentives (including financial incentives) for private sector entities.
If the rights outlined in the proposal were balanced, this would be a helpful provision. As it is, it would only further entrench the undermining of religious freedom.
When considering any kind of human rights act, the Federal Government needs to ensure the protection of religious freedom as defined in the ICCPR.
Parliamentary Review
On March 15, 2023, the Attorney General, Mark Dreyfus, asked the Parliamentary Joint Committee on Human Rights to examine the effectiveness of Australia’s current Human Rights Framework. The scope of the review covers:
whether the Australian Parliament should enact a federal Human Rights Act, and if so, what elements it should include (including by reference to the Australian Human Rights Commission’s recent Position Paper);
whether existing mechanisms to protect human rights in the federal context are adequate and if improvements should be made, including:
- to the remit of the Parliamentary Joint Committee on Human Rights;
- the role of the Australian Human Rights Commission;
- the process of how federal institutions engage with human rights, including requirements for statements of compatibility; and
- the effectiveness of existing human rights Acts/Charters in protecting human rights in the Australian Capital Territory, Victoria and Queensland, including relevant caselaw, and relevant work done in other states and territories.
This review is ongoing, and Freedom for Faith will be submitting and engaging heavily with the process.
Our Request
We are calling on the Government to fully protect our religious freedoms in accordance with Article 18 of the ICCPR when considering a possible Human Rights Act.
Many MPs in the Federal parliament are either unaware of the AHRC proposals or fail to recognise their radical implications for religious freedom. It is imperative that we act quickly to inform our local MPs of the potential threat and the depth of concern in our community.
The most powerful way to do this is to have a meeting with them. Click here for a guide to making a meeting with your local MP.
Further Reading
Assessment of the proposed HRA:
Joint Submission by Christian churches and organisations to the Queensland Parliament Legal Affairs and Community Safety Committee Human Rights Inquiry (22 April 2016)
