Reflection: Australia must enact a Human Rights Act

Jesuit Social Services’ rights-based approach to advocacy and service provision is grounded in our belief that every person’s rights and freedoms must be protected. Here, Andy Hamilton SJ reflects on our recommendation that the Federal Government enact a Human Rights Act – building on our recent contribution to the Parliamentary Inquiry into Australia’s Human Rights Framework. 

Australia is one of the few nations not to include a Human Rights Act to which we can appeal in our dealings with one another. This lack is unfortunate. Human rights express a vision of what it means in our different relationships for human beings to flourish as individual persons and in society. The experience of Jesuit Social Services in accompanying young people often with multiple disadvantages is that their flourishing is restricted by the unrecognised prejudice, ignorance and unconscionable behaviour by others and by the regulations that allow them. 

The lack of protection of people with disadvantage is reflected in the lack of legislative protection of persons’ rights to life, freedom from torture, to health care and housing through the failure to incorporate into our domestic law a Human Rights Act and the Tribunals necessary to ensure their observance. The effects of this failure have been evident in the overriding of the Racial Discrimination Act by the Northern Territory Intervention. It can also be seen in the punitive and secretive regime on Nauru and Manus Island that has been so destructive of the lives and health of people who sought protection in Australia, and in Australia’s refusal to allow entry into our Detention Centres by United Nations representatives.  

In order to prevent further infringements on human rights, offer guidelines for government in policies that affect vulnerable people, and contribute to the agencies of people who are vulnerable and the accountability of government, there needs to be national legislation through a Human Rights Act. 

The Act should ensure that the rights of marginalised people who historically most need protection are included, with a commitment to the initiatives necessary to meet their special needs. 

Among the groups whose rights are often infringed and so need to be included in the Act are those facing discrimination associated with their gender and identity, all those deprived of freedom of movement in prisons and other places, those affected by new forms of disadvantage such as climate change and gender identity, and persons in localised areas of multiple disadvantages. Aboriginal and Torres Strait Islander young people, who disproportionately suffer from poverty, lack of opportunity for education, work and health services, as well as the effects of a lack of respect for their culture, require special protection and the appointment of a Special Children’s Commissioner. 

The Act should also protect civil and political rights as well as economic, social and political rights. It should also include a specific version on the latter rights as they pertain to Aboriginal and Torres Strait Islander people, including the rights to education, secure housing, health care and freedom from poverty and entrenched disadvantage. It should also protect the cultural rights especially of Aboriginal and Torres Strait Islander people. These inclusions build on the provisions of anti-discrimination laws now in force. 

When advocating for young people experiencing disadvantage, organisations like Jesuit Social Services will necessarily criticise government policies that seem to be misguided. It has been common for Governments to try to restrict such protest. The Act should therefore protect the right to freedom of expression and association and assembly. 

Human rights undergird a society that cares for all its members, especially those most marginalised. They are too important for their observance to be left to chance.  

These reflections are drawn from one of many submissions made by Jesuit Social Services to government enquiries on current issues. Read our submission to the Parliamentary Inquiry into Australia’s Human Rights Framework, and browse all submissions here.