A Human Rights Charter for Australia – Part 1
This is part 1 of a 2-part series from Dr Paul Taylor. See part 2 here.
Dr Paul Taylor is an Honorary Senior Lecturer in the T.C. Beirne School of Law, a Fellow of the Centre for Public, International and Comparative Law, and an Adjunct Professor at the School of Law, The University of Notre Dame Australia. His principal academic interests are international human rights law and conflict of laws (private international law). He has held Visiting Fellowships at Wolfson College, Cambridge and at the Centre for International and Public Law, College of Law, Australian National University. He is the author of A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights’ Committee’s Monitoring of ICCPR Rights (Cambridge University Press, 2020); and Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge University Press, 2005).
The comments are written in a personal capacity, and do not reflect any views of any institution to which he is or has been affiliated.
Orginally posted on Law and Religion Australia
A smarter charter?
Paul M Taylor
I have been asked for my first impressions of the Australian Human Rights Commission’s proposal earlier this month for a federal charter. I have not yet had a chance to consider it in detail, but I am very happy to provide some provisional thoughts on whether what has been offered might be regarded as a good or bad thing, or could confidently be ignored with indifference.
The proposed charter has the potential to change the landscape of rights protection in Australia significantly (https://humanrights.gov.au/free-and-equal ). It promises to make good various deficiencies in what the AHRC describes as Australia’s patchy legal framework of human rights protection. It would do so by reference primarily to the rights in the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a party, although those rights are rewritten in the charter in many ways that upset scheme of protection established in the ICCPR.
In spite of assurances that the charter would “implement” ICCPR rights, this proposal is no substitute for enacting legislation where needed to give full effect to ICCPR rights not yet properly protected in Australia. This is because the charter would merely improve the interpretation of laws to a marginal degree in keeping with its listed rights, it would build on existing legislative scrutiny, and would require public authorities to act compatibly with those rights. Such an obligation on public authorities could, however, be quite far-reaching.
To my mind, whether such a charter is far-reaching in good or bad ways depends entirely on whether it gives better support for human rights standards required by the ICCPR. I would be keen to see a charter which did just that. My immediate impression, regrettably, is that this one does the opposite.
The proposal for a charter is a timely development, given so much else that is going on in the Australian human rights space. For some time, my position has been to welcome the idea of a federal charter, provided it achieved something positive and comported with Australia’s international law obligations. I would certainly support one that did that even if, as is inevitable, it fell short of implementing key rights which are inadequately protected in Australia. Implementation is separate exercise, and that is a reality which I do not think this proposal squarely faces. I would stress at the outset that a charter cannot hold itself out as a proxy for the proper enactment of rights in domestic law where they otherwise suffer inadequate protection.
Given the length of the AHRC’s Position Paper, A Human Rights Act for Australia, running to almost 500 pages, I will focus mainly on the description of the rights proposed, and one or two features that stand out as unexpected.
My conclusions are tentative, because I have not yet read the entire Position Paper and other documents available on the AHRC website, but from what I have seen so far, a harmless sounding charter proposal on closer inspection is severely discomforting.
I will call the proposed Human Rights Act a charter, for ease of reference, as it is similar to the Human Rights Acts in Victoria, the ACT and Queensland, with which we are already familiar, which are informally known as charters. A charter in this form is simply legislation that provides a list of human rights (in Australia they are based on those in the ICCPR), and it then sets out to achieve four things: 1. to create an obligation on public authorities to act compatibly with those rights (including in decision-making); 2. to require interpretation of laws in a rights-favourable way; 3. to introduce legislative scrutiny in reference to those rights; and 4. to allow courts to determine whether laws are rights-incompatible and to make a declaration to that effect.
Item 4 is a crucial tool that this charter proposal lacks. Its absence is a gaping hole. This absence is justified on the grounds of the questionable constitutionality of such a power. To my mind this is one of the most important aspects of a charter in Australia – if one is to be introduced at all – to bring some sort of judicial reckoning to the failures of Australian domestic law (assuming the charter accurately describes human rights in its list). This is especially important since the interpretive role of charter in Australia (item 2) is at best marginal, in contrast to the much more effective power of equivalent charters in the UK and New Zealand to yield rights-compliant outcomes in particular instances.
The charter does not amount to implementation
This is only the starting point for an explanation of why such a charter cannot be equated with ICCPR implementation, despite the Position Paper’s assurances that this charter would constitute implementation. If Australian law currently fails to provide adequate protection for a particular human right – as required by the ICCPR – a charter offers no cure for this in law; it is not effective in terms of implementing that ICCPR right. Worse, a charter would result in backward steps away from implementation if it represented a particular ICCPR right in its list with certain key elements of protection removed, as this would subtract from that right; or if a charter right were defined in terms which diminished it relative to other rights which are to be considered when they are in contention, since this would similarly represent the abatement of that right.
I am not suggesting that implementation requires Australia to conform its internal laws to the exact terminology of the ICCPR. As the ICCPR monitoring body, the Human Rights Committee, has said, it is up to States Parties to “give effect to Covenant rights in accordance with domestic constitutional processes.” However, Australia’s implementation obligation in article 2(2) does require it to take the necessary steps to adopt laws or other measures necessary to give effect to all ICCPR rights, to the extent it has not already done so. Article 2(3) also obliges it to ensure an effective remedy for violation in combination with the right to have that remedy enforced. The proposed charter does not “give effect” to human rights in Australian law, in this sense.
One way to avoid the charter inflicting injury on particular rights is for it to have close regard to the substantive protection intended by the ICCPR, reflected in the terms of each ICCPR provision. One very simple way of doing this is to schedule the ICCPR provisions, together with their terms of limitation and qualifications, just as the UK Human Rights Act 1998 does in the case of the European Convention.
The importance of getting charter rights right
It is one thing that a charter does not constitute implementation, though implementation should remain a priority. It is quite another if a charter codifies rights in a way that diminishes or omits protection that should be secured. The rights which are at greatest risk are those which are already inadequately protected in Australia. It would be the worst of all worlds surely if the only real impact of the charter were to be to empower public authorities to apply, throughout Australia, a charter with the wrong human rights settings, that diminished some rights and/or favoured some rights at the expense of others, contrary to ICCPR standards. That is my greatest concern. Once this charter is enacted, there would be no possible recourse in Australian law to correct any failures (measured against the ICCPR) in the way the charter embeds human rights. That is why I regard proper ICCPR implementation for rights which currently lack it as a necessary anterior step to a charter. It prevents such shortcomings of a charter being baked into law, in place of ICCPR standards, without any means of correcting the law, or providing a remedy for any resulting violation.
I do not think it is particularly contentious to say, as a legal proposition, that the protection which Australian law currently gives to freedom of religion falls markedly short of the standards required by the ICCPR. Similar deficiencies afflict the other expressive freedoms, i.e. of expression, assembly and association. I would like to have a better handle on any other rights which are inadequately protected. It would then be possible to assess more meaningfully how much those shortcomings stand to be ameliorated by the charter. The AHRC seems to touch on this only briefly.
A significant amount of federal legislation already protects certain human rights to standards in excess of the requirements of the conventions which they originally implemented. Federal antidiscrimination legislation is the clearest example, while freedom of religion and the other expressive freedoms lag well behind the protection required by the ICCPR. A crucial test of whether the charter scratches where it itches is whether all rights drawn from the ICCPR are brought to the same level, in the sense of receiving the same definitional treatment that is expressed for them in the ICCPR. If the charter achieves the opposite, by cementing some ascendancy of certain rights over others, then it is dangerously counter-productive – and that, regrettably, is a concern I am unable to shake off as I read the Position Paper.
The charter’s description of rights
An obvious starting point is to consider the “list of rights for inclusion” (p.110 of the Position Paper). The charter rights are mainly based on ICCPR provisions, which is necessary since Australia ratified the ICCPR. In their transition to becoming charter rights in this proposal, the ICCPR rights underwent a certain amount of adjustment. This adjustment seems to have been mainly for reasons of simplicity, but certain rights suffered more drastic adverse transformation, for reasons which are not altogether clear.
“Freedom of thought conscience and religion”
The charter right of freedom of thought, conscience and religion substantially reflects the wording of article 18(1), but it seems to remove all forms of absolute protection offered by article 18. One thing that differentiates article 18 from most other ICCPR rights is that it has certain nuclear components, which cannot permissibly be restricted. We know that “freedom to have or to adopt a religion or belief of choice” is one (in article 18(1)), and this is reinforced by article 18(2) which prevents any coercion in that choice (also admitting no possible restriction). Instead of article 18(2) we have the curious charter proposal that “[n]o one may be coerced in a way that would impair their freedom to have or adopt a religion or belief [so far so good] in worship, observance, practice or teaching [!].” Whatever this now means (and I have to confess I have no idea), the absolute protection may seemingly be removed by the qualifying words “in worship, observance, practice or teaching” because they are elements susceptible to limitation. This also suggests that “the freedom to have or to adopt a religion or belief of their choice” which features earlier in the proposed text may also no longer be absolute, though I am not sure. (None of the article 18 rights which the Human Rights Committee considers to be absolute appears in the AHRC’s list of absolute rights.) In any event, this radical adjustment to article 18(2) needs some explanation, and I will look further for one in the Position Paper.
The other element of article 18 which is absolute, but was removed from the freedom of thought, conscience and religion provision in the charter (not just degraded from an absolute right), is “respect for the liberty of parents…to ensure the religious and moral education of their children in conformity with their own convictions.” In its place, the right to education in the charter (a right under the International Covenant on Civil and Political Rights (ICESCR)) now provides, “A child’s parents…may choose schooling for the child to ensure the religious and moral education of the child in conformity with their convictions, provided the schooling conforms to the minimum education standards required by law.” Whose convictions, the parents’ or the child’s – it is not crystal clear? If the ALRC’s recent Consultation Paper proposals materialise, religious schools will be affected in ways that minimise the availability of schools capable of supporting that choice. Depending on what “education standards require by law,” this provision may also stand in the way of the ethos-based aspects of education currently provided by religious schools. In consequence, any parental right, as it appears in the right to education, has been reduced, and subjected to novel provisos. None of this is needed to support the right to education, as such. It also obscures the fact that the parental right is in the nature of freedom of religion or belief.
There may be some debate as to the precise scope of the parental right in article 18(4) but in this proposal it has lost its original substance. Yet it remains an ICCPR provision binding on Australia, and should be treated as such in the charter. Just because Australia has implemented the right to education it does not mean it has implemented this entirely separate right.
“Protection of children”
Related to that is article 14 of the Convention on the rights to the child which obliges the State to “respect the rights and duties of the parents…to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.”
The wording of the charter’s “protection of children” provision tracks with its ICCPR article 24 counterpart, in stating that “[e]very child has the right, without discrimination, to the protection that is needed by the child by reason of being a child.” But it omits the recognition of the parental role found in the ICCPR that such protection is provided through the child’s “family, society and the State”.
There is emerging alarm at the erosion of parental rights across a swathe of measures in Australia. Much of it goes to the question of protection of children. There is also ongoing concern that the content of messaging in schools is increasingly in direct conflict with parental wishes. So much so that the UK Prime Minister has now fast-tracked a review of sex education in school (https://au.sports.yahoo.com/pm-confirms-sex-education-review-130646001.html ).
Articles 18(4) and 24 gave particular recognition to parental roles and responsibilities. My concern is not so much that the textual changes made to these provisions in transition to the charter signals a deliberate move to side-line parents. But the shift does correspond with an undesirable trend in that direction, that a charter which faithfully reflected the ICCPR should constrain.
This also has to be read in conjunction with the charter proposal for a novel right, as yet unrecognised in international law, which has as its threshold, “[a] person must not be…treated…in a degrading way”. The charter right of which this is a component is said to implement article 7 of the ICCPR, which mandates that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” “Subjected to…degrading treatment” (with particular meaning in an article 7 context) has become “treated in a degrading way.” The ICCPR article 7 right has lost its boundaries when lifted into the charter. Imagine how the State could intervene, or push charter standards, on the basis of such a right in the name of child welfare when its perceptions differ from those of parents.
If positive duties are to be imposed on public authorities to act compatibly with charter rights, officials must faithfully reflect the new settings of this charter. They will amplify charter messaging throughout the health, education and other public sectors. If charter rights are out of equilibrium with each other, so also will be the culture pervading the public sector, and human rights outcomes will be distorted.
“Recognition and equality before the law; and freedom from discrimination”
The charter proposal for equality and non-discrimination is one of the provisions which underwent the most radical transformation from its ICCPR origins. “Discrimination in the context of the [charter] has the same meaning as discrimination in federal discrimination laws (including any future discrimination legislation).” “Discrimination” does not have a self-standing definition in federal discrimination legislation. In each Act, various terms contribute to define the anti-discrimination prohibitions.
For example, in s.14 of the Age Discrimination Act 2004 (ADA) the “discriminator” “discriminates” against “the aggrieved person” on the ground of age if they treat them less favourably than they would a person of a different age, in circumstances that are the same or are not materially different, and they do so because of that person’s age. This is direct discrimination. In a similar approach, s.15 deals with indirect discrimination by specifying that the “discriminator” “discriminates” against “the aggrieved person” on the ground of age if they impose a condition, requirement or practice that has the effect or likely effect of disadvantaging those of the same age as the aggrieved person, if this is not reasonable in the circumstances. Other federal discrimination legislation follows a similar pattern.
Freedom from discrimination is the only charter right which is defined in a way that derives its meaning solely from Australian legislation. Why? The reason may be that discrimination under the ICCPR (and all UN human rights treaties to which Australia is a party) bears a meaning quite different from that under Australian legislation.
Under those treaties, discrimination is
“understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.”(HRC General comment 18).
A differentiation based on reasonable and objective criteria simply does not amount to prohibited discrimination under the ICCPR. Similar principles apply to direct and indirect discrimination. Australian anti-discrimination principles cannot easily be reconciled with this.
There are two steps involved in determining whether there is prohibited discrimination under international law. The first is to ask whether there has there been differential treatment (i.e. a distinction, exclusion, restriction or preference) on a prohibited ground? (This seems to correspond roughly with the “less favourable treatment” or “disadvantage imposition” tests in ss.14 and 15 of the ADA, for example). The second is to ask whether that differential treatment is based on reasonable and objective criteria. If yes, there is no discrimination. (The ADA does not undertake this enquiry, except partially through s.15(1)(b) which saves certain conduct from constituting indirect discrimination where it is reasonable (though it does not save any s.14 conduct); and s.33 which provides exemption for positive discrimination and other specific purposes.) The point is that “federal discrimination laws” such as the ADA do not allow reasonable and objective criteria to apply as a matter of principle, across the board, to determine whether differential treatment is justified. The ADA applies the concept of “reasonableness” in that confined way, which does not correspond with convention standards. The charter proposal for this provision is incapable of even pointing to this deficiency because it short-circuits to Australia’s legislation. For this particular right the charter standard is not derived from the ICCPR. The charter is denied the capacity to test whether differential treatment is based on reasonable and objective criteria in accordance with the ICCPR, since it cannot look any further than the meaning of discrimination under existing federal legislation. The domestic law meaning of discrimination simply prevails.
The charter’s approach to defining discrimination produces a particularly strange outcome as far as discrimination on the ground of religion is concerned. The ICCPR prohibits this, not only in its core discrimination provisions but also in various others. I cannot say whether it is intended but a literal reading of discrimination under the charter, as “discrimination in federal discrimination laws (including any future discrimination legislation” would preclude discrimination on the ground of religion for as long as there is no federal legislation prohibiting discrimination on that ground. This should already be a matter of toe-curling embarrassment to Australia in the global community. The charter would appear to have no capacity to correct this. It does not notice, let alone expose, such a failure. How can this be said to amount to implementation of any kind?
The interpretive provision of the charter which is meant to cause courts to prefer an interpretation that is compatible with human rights does not help, because there is no discrimination right on the ground of religion which the charter is capable of detecting. A charter, surely, is meant to highlight exactly this sort of deficiency in legislation. The positive duties which the charter would impose on public authorities to act compatibly with charter-defined human rights would also, oddly, not include constraint against religious discrimination. I must be missing something that will hopefully emerge on a more detailed reading of the Position Paper.
Charter scheme of rights’ limitation
This brings us to the charter’s scheme for determining the circumstances in which rights can be restricted.
It proposes a single clause, applicable to all rights, which states that “[a] human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.” A restriction would be rights-compatible if it only limits a right to the extent that is reasonable and demonstrably justifiable in accordance with that limitation clause.
The adoption of a single limitation provision represents another profound departure from the ICCPR. As to how the proposed limitation provision was arrived at, including the factors to be applied when assessing what is reasonable and justifiable, the AHRC explains that it is
“based on the proportionality test that is strongly established in international law and applicable to human rights instruments. The Siracusa principles, which provide guidance on limitations of rights within the ICCPR set a clear standard in this regard.”
Is this a mistake? The Siracusa principles themselves document their limited compass. The “Introduction” to the Siracusa principles recognises that that they apply only to certain rights, the most obvious being those with limitation texts like articles 18, 19, 21 and 22, for the expressive freedoms, plus one in similar terms for freedom of movement. The Siracusa Principles are, after all, concerned with limitation and derogation provisions. The “Introduction” also clarifies “that other criteria determine the scope of rights in the Covenant, e.g., the concept of arbitrariness, but time was not available to examine them. It was hoped that it might be possible to examine these other limits on some future occasion.” Under the ICCPR the rights which do not contain limitation provisions but instead apply the concept of arbitrariness include the right to life in article 6 (“No one shall be arbitrarily deprived of his life”), article 9 (No one shall be subjected to arbitrary arrest or detention”), article 12 (“No one shall be arbitrarily deprived of the right to enter his own country”), and article 17 (“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”). The texts of these provisions, including the “arbitrariness” qualification, determine the scope of each of these rights and the capacity for State intervention. Under the ICCPR, “arbitrariness” is understood in terms such as “inappropriateness, injustice, lack of predictability, and due process of law, in addition to elements of reasonableness, necessity, and proportionality.” That concept embraces a lot more elements than the charter’s simple omnibus limitation provision, and they operate in the particular context of each of those ICCPR provisions.
The AHRC suggests that its single limitation clause approach would provide a straightforward and complete legal test for the courts to apply, and a clear directive to public servants on how to conduct the limitations analysis in their day-to-day work (pp.28, 329). The convenience of courts and public servants is not enough reason why everyone under Australia’s jurisdiction should lose key aspects of the fundamental rights to which they are entitled under international law. If the AHRC is taking account of state and territory human rights instruments in this respect (as it is in others) I would ask why? If states and territories happen to be wrong in adopting a single limitation provision, why compound an aberration? And I would say that the scheme of limitation in existing state and territory charters is in serious error.
At this point it is worth pausing to reflect on the monumental task achieved by the ICCPR and how meticulous drafting care enhances rights protection. In the ICCPR, the scope of each right, and the terms of limitation or qualification applicable to each right, were individually and painstakingly crafted, scrutinised and debated over two decades by the UN Human Rights Commission, drafting working groups, sub-committees, and the Third Committee of the General Assembly, with the result that no two terms of limitation or qualification in the ICCPR are the same. The reason for going to all this trouble was that protection is only appropriately secured by close attention to the scope of the right in question, the threshold which should apply to that right, the specified means by which the law must provide particular forms of protection for the right, and the terms which identify what the state must demonstrate before it is able to restrict that right.
The effect of including a single limitation provision in a charter would be to tear up 20 years of hard work by the world’s best legal minds which transformed the non-binding Universal Declaration, with its single limitation provision, into the ICCPR to enable it to be workable in binding treaty form. The charter is intended to have the force of law, and warrants the same precision as the ICCPR. The charter could achieve this outstanding result simply by replicating the ICCPR provisions in full (with only necessary adjustment), including their respective terms of limitation and qualification. Stringency of this sort is needed to achieve appropriately targeted protection for each particular right. The priority given to individualised limitation terms is also assumed in the terms of article 5, which forbids anything in the ICCPR being interpreted as implying the limitation of any ICCPR right, ‘to a greater extent than is provided for in the present Covenant,’ including in each term of limitation.
I cannot see how the AHRC will ever fulfil its ideal of simplicity. I would suggest that it must instead come to grips with the complexity of international human rights law, or it will do abject violence to it. By re-writing rights in the charter inconsistently with their ICCPR counterparts the process of interpreting them is not simplified but mystified. Matters are further complicated by a single limitation provision. For example, how is the limitation provision to be interpreted in the charter in regard to those rights to which a limitation provision has no application in the ICCPR? The permissible scope for restriction is already described in the provision enshrining the right. How is the limitation provision to be interpreted in relation to those rights which do have a limitation provision, when the charter version differs in such important respects? Why not simply schedule all rights, in their original complete convention form, as the UK model does?
I should just mention, finally, that the AHRC proposes to formalise absolute protection for the following rights, on the basis that they “must not be subject to any limitations.” They are: freedom from torture and other cruel, inhuman or degrading treatment or punishment; freedom from forced work; freedom from imprisonment for inability to fulfil a contractual obligation; the prohibition against the retrospective operation of criminal laws; and the right to recognition before the law. In the ICCPR this last right is a right to recognition as a person before the law, which is related to the need for recognition of legal personality, as a prerequisite to the enjoyment of other rights. For some reason in the charter it was reworded, and included in the same provision as freedom from discrimination. It is not clear what the rights in this list have in common, to explain how the AHRC selected them, though it may be that these are rights which are defined in terms of the ICCPR command that “no one shall be” etc. The need to disapply the limitation provision in this way would simply be the by-product of the inappropriate imposition of a blanket limitation provision across all rights in the first place. Close attention to the Siracusa Principles would require further adjustment for other provisions which define rights by reference to concepts such as “arbitrariness”. And how do you make sense of the freedom from discrimination, given that federal legislation already includes aspects of reasonableness e.g., for a certain conduct amounting to indirect discrimination, though applying principles which differ from those applied under the ICCPR to discrimination? How does the limitation provision operate there, or will it be disapplied?
The curious thing is that the article 19 freedom of opinion, and the article 18 rights to have or adopt a religion or belief of choice, to be free from coercion in that choice, and respect for the liberty of parents to ensure the religious and moral education of their children, etc are understood to as absolute rights by the Human Rights Committee. As we have already seen, the absolute standard of protection to be guaranteed by article 18 appears to be relegated in the charter, for reasons that still need to be explained. Freedom of opinion is similarly not given absolute protection in the charter but is subjected to limitation terms.
The process of imposing the all-singing, all-dancing limitation clause requires consequential provisions in the charter. Among those rights to which the limitation provision is disapplied is the (absolute) right that “[a] person must not be…treated…in a degrading way”. This could catch vilifying speech on the face of it, possibly even at the notoriously low threshold of Tasmania’s Anti-discrimination Act 1998 s.17, which experience shows, conflicts with freedom of expression in ICCPR article 19.
The worst possible outcome is a charter that has capacity to take Australia further than it already is in departure from ICCPR standards, with no real prospect of correction within the Australian legal system. A charter fraught with rights imbalance or surrogate definitions is injurious to human rights protection. It is capable of being suborned, and public authorities co-opted into its service, with limited oversight of charter-inspired policy pervading throughout Australia.
I fear the charter will displace the abiding regard which Australia should maintain for fundamental ICCPR and other convention rights which the charter is supposed to support. It detracts and distracts from them.
The charter produces some clear winners, and losers. In the ranks of the losers, surprisingly, is the absolute protection within the freedom of thought conscience and religion, and the respect owed to parents, including in the protection of their children, which is eviscerated. Among the winners is the freedom from discrimination, because federal antidiscrimination legislation deputises for the ICCPR’s concept of discrimination, to immunise that freedom against assessment by international standards. Another clear winner is the newly-birthed right to not be treated in a degrading way.
I was strongly supportive of a federal charter, particularly one that could achieve something to align with ICCPR standards. The charter is meant to be the vehicle for “bringing rights home,” as the AHRC proclaims, echoing Tony Blair’s commitment to transpose European Convention rights into UK domestic law. There are massive differences between the two models. First, under the UK Human Rights Act 1998 European Convention rights are not brutalised and distorted in the way that is proposed in this charter. They are simply passed through in toto. Secondly, rights are not subjected to a single limitation provision, an issue which goes to the core aim of protecting all rights. As the UK model is esteemed in the Position Paper with good news stories of its outcomes to lend support of the AHRC’s form of charter, I wonder how much account was taken of these differences, and the fact that the UK Act has far greater capacity, by its effective interpretive power, to produce those conventional rights-compliant outcomes. I have no problem with the UK model.
My initial impression is that ICCPR rights are not “brought home” to Australia but instead are ship-wrecked before they reach its shores. This proposed charter represents the upheaval rather than the implementation of rights.
As I look for reassurance in reading the Position Paper further, I hope to find it.