Several reforms are required at the Australian Human Rights Commission to better protect and realize human rights in Australia, writes Professor Ben Saul.
HUMAN RIGHTS experts have welcomed Labor’s plan to reinstate merit appointments at the Australian Human Rights Commission and appoint a global human rights ambassador. Nine years of partisan “captain elections” by the coalition government have shattered the Commission’s impartiality and dimmed its voice as a champion of the vulnerable. Their funding has also been decimated.
Labour’s modest proposals do not go far enough. The urgent need for a national bill of rights aside, the Commission of the 1980s is long overdue for radical institutional reform. Does an excellent job of handling discrimination complaints. She has shown leadership on policy issues such as disability rights and gender quality.
However, on too many issues, the Commission is a laggard and not a leader. Its mandate and structure are no longer fit for purpose. It was created in 1986 when non-discrimination was rightly fashionable. This has led to most Commissioners being tasked primarily with anti-discrimination functions, based on race, sex, disability and age.
However, non-discrimination is only a 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 must 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.
Currently, only the commissioners for indigenous and children’s rights, plus the Human Rights Commissioner, have more general powers. The first two do not protect all Australians. Human Rights Commissioners have tended to focus on civil and political rights, and sometimes only some of them.
Some commissioners have taken a narrow and divisive ideological approach to freedoms of speech and religion. Discrimination commissioners may consider other rights in the context of discrimination, but not otherwise.
All this means that the Commission has largely ignored that half of human rights called economic, social and cultural rights. These include the rights to health, education, housing, work and social security. In fact, these are everywhere in the current election campaign, as in the rising cost of living and inflation, stagnant wages, striking workers, insecure work, unaffordable houses and rents, hospitals in crisis, food insecurity, welfare by below the poverty line and unfair transfers of public money to private schools.
Yet there is not a whisper from the Commission on 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 for the inclusion of economic and social rights in the universal declaration in 1948. Over time, there has been bipartisan support for central pillars of Australian prosperity, such as accessible and affordable public education and health care, a living wage, and a social safety net. But there are many rough edges that would benefit from human rights-based scrutiny through a reformed Commission.
Should we have a commissioner for the freedoms of speech and religion, but not for the equally fundamental rights to an adequate standard of living, decent labor rights, and accessible and affordable health care, education, and housing?
Why shouldn’t Australians enjoy legal scrutiny from independent experts of government policy in these areas and not simply suffer as usual from the majority policy of hog barrels and bear pits, and uncorrected market failures?
Economic and social rights do not mean that the government has to give everyone a job, a free house, a free college degree, or pay for cosmetic surgery. They mean that the government must have a rational plan for the progressive realization of the minimum rights essential to human dignity, using the maximum resources available, whether through the public or private sectors.
Economic and social rights are also consistent with our democratic system. The government still decides policy and allocates funds, while human rights provide benchmarks to check and improve policies to ensure no one is left behind. Caring for 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 who have 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 just in response to complaints. It should have the power to investigate government violations abroad and corporate violations here or abroad.
It should be able to intervene more easily in court cases. More coordination and solidarity among commissioners is needed, as they sometimes work unproductively in silos, fueling turf wars for resources and influence.
An independent governing board could prevent budget and staff mismanagement. It also needs more money, befitting its role in safeguarding the rights of 25 million Australians.
Fundamentally, the Commission needs more respect from politicians, who should stop being so stingy with 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 difficult to tell from the outside how successful this is.
But you shouldn’t have to fear recrimination for screaming from the rooftops when the government lights a fire against human rights and refuses to put it out.
Ben Saul is the Challis Chair in International Law at the University of Sydney.
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