Inquiry into Australia’s Human Rights Framework: Network Submission

On 20 October 2023, Professor Beth Goldblatt and Dr Genevieve Wilkinson represented the network before the Joint Parliamentary Committee on Human Rights. The Committee acknowledged the submission and recommendations made by Cristy Clark, Beth Goldblatt, Jessie Hohmann and Genevieve Wilkinson and endorsed by many members. The opening statement follows below.

Members of the committee asked a range of questions regarding rights to housing, social security, health and a healthy environment. They were also interested in human rights education, implementation of a human rights culture, how justiciable rights would operate and how state and federal legislation would interact. The Hansard is available here. Responses to questions on notice have been posted on the Committee’s website here.

Opening Statement

We thank you for the opportunity to appear before you today.

Amongst other purposes, the Economic, Social and Cultural Rights Network of Australia & Aotearoa (New Zealand) was established to contribute our economic, social and cultural rights expertise to addressing real world problems.

In our submission, we have argued for the full equivalence of economic, social and cultural rights with civil and political rights in any proposed Human Rights legislation emerging from this Inquiry and within a proposed human rights framework for Australia, and also for the inclusion of environmental rights. While we support many of the recommendations in the Australian Human Rights Commission’s position paper, we disagree with the narrow and limited approach the Commission has adopted in relation to economic, social and cultural rights, particularly its suggestion to remove obligations of progressive realisation from the reach of the courts. Here we also disagree with the outdated suggestion that there are constitutional barriers to the enforceability or suitability of these rights, or that they lack clarity.

Our submission argues for the adoption of a Commonwealth Human Rights Act that is forward looking and responds to the present and future. This would include justiciable economic, social and cultural rights, including obligations of progressive realisation, that go beyond existing state and territory human rights laws. By embracing these rights, and the right to a healthy environment, such a charter of rights would meet the challenges and opportunities of the 21st century, including by acknowledging the relationship between human beings and the unique and precious Australian land and seascape, and environment; the relationship between Australia’s First Peoples and those who have since made Australia home; emerging technologies and new ways of living; and new forms of inequality and disadvantage.

Currently, Australia is an outlier and significantly behind other democracies in its protection of human rights. UN bodies which oversee the obligations that Australia has taken on in international law have repeatedly called on Australia to enact legislation that protects human rights domestically to give effect to those international obligations on the ground, where people can claim them. UN bodies have also urged Australia to make the full range of rights in international law claimable at the international level, notably by signing the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which would allow Australians to make human rights complaints under that Covenant, as is possible under the ICCPR.

In our submission, we have sought to demonstrate how the content of these rights, and the obligations they impose on government, can be easily interpreted by Chapter 3 Courts, consistent with their institutional role within our constitutional model and legal system. We have done this by explaining the international jurisprudence around the obligation of progressive realisation and illustrating this in relation to the rights to health, housing, social security, and water. We have also made specific recommendations in relation to the right to a healthy environment, specifically that any Commonwealth Human Rights Act include a fully justiciable right for individuals and groups to the human right to a healthy environment, and that strong consideration be given to including specific language recognising the unique reciprocal relationship of Aboriginal and Torres Strait Islander peoples to lands and waterways, and the related right to free, prior and informed consent in relation to any proposed projects that might impact their territories.

Finally, we have made a number of recommendations about the centrality of the rights to equality and non-discrimination in relation to economic, social, and cultural rights, and recommended that the Australian Human Rights Commission Act 1986 (Cth) be amended to include ICESCR in the definition of human rights; and that human rights education about economic, social and cultural rights be provided for the community, advocates, judiciary and government bodies.

We welcome your questions on the matters raised in our submission or on other matters relating to how we can improve the protection of human rights in Australia.