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Monday, 2 December 2024

Reflections on the ACT’s Human Rights Bill 20 years on — lessons for the National Inquiry

Dr Helen Watchirs OAM, ACT Human Rights Commission President and Human Rights Commissioner, delivered the 36th Annual Sir Richard Blackburn Lecture during Law Week on 9 May 2023.

The 2023 Annual Blackburn Lecture looks at the ACT’s Human Rights Act and what improvements might be needed as we approach the National Inquiry.

Introduction 

I would like to begin by acknowledging the traditional custodians of the land on which we meet today, the Ngunnawal, Ngambri and other peoples who have a traditional connection to ACT lands and the surrounding region. I respect their continuing culture, protected under s27(2) of the HUMAN RIGHTS Act - the oldest living culture in the world at over 65,000 years and the unique contribution they make to the life of this city Canberra and this ACT region, of which we are all proud. I pay my respects to elders, past and present. I support the 2017 Uluru Statement from the Heart and a Voice to Parliament enabled by the Constitution through a referendum, and Makarrata Commission to supervise treaty-making and a process of truth-telling about our history.  

I acknowledge any Aboriginal and Torres Strait Islander people who are attending today’s event in person or online. I would also like to acknowledge that Selina Walker today organised a protest march Dead and Failed from Haig Park to Legislative Assembly about the tragedy of a woman’s body found in Lawson in February this year. I also acknowledge the Federal Human Rights Commission’s Summit on Women’s Voices, Wiyi Yani U Thangani, organised by June Oscar, Aboriginal and Torres Strait Islander Social Justice Commissioner taking place at the National Convention Centre. 

I’d also like to acknowledge Justice Loukas-Karlsson, former Judge Mary Finn, former Magistrate Beth Campbell, ACAT President Graeme Neate and Geoff McCarthy Presidential Members of ACAT, Kathy Leigh Head of Service, Richard Glenn Director-General JACSD (online), colleague Heidi Yates, Victims of Crime Commissioner, and Prof Lorana Bartels ANU (online). Thank you especially to Law Society President Farzana Choudhury for your kind invitation to speak – in 2020 I was also invited to speak by former President Chris Donohue, who I’m very pleased is here today, but the event was cancelled due to COVID.  

I think that COVID has caused us to reflect more deeply on Human Rights issues facing people experiencing vulnerability more than usual and reminded us that we’ve taken Human Rights for granted for too long especially at the national level, and our local experience of Human Rights law is valuable and practical. 

It's nearly twenty years since the Human Rights Bill was tabled in the LA, soon after the Report of the ACT Bill of Rights Consultative Committee was released in May 2003. The Committee was chaired by Professor Hilary Charlesworth, now a Judge of the International Court of Justice in the Hague. The Human Rights Act passed in March 2004 and came into force three months later on 1 July 2004, nearly 19 years ago. It was the first Human Rights Act to be enacted in Australia in 2004 - since then two other jurisdictions have introduced Human Rights legislation based on our model, Victoria in 2006 (in force 2008) and Queensland in 2019 (in force 2020). I consider myself very privileged to have served the ACT community over the last 19 years since my appointment in April 2004, and am honoured to give this lecture before I finish my term at the end of July 2023. 

Launch 20 Significant Human Rights Cases 

I’m very pleased to be launching the Commission’s Collection of 20 Significant Human Rights Cases in the Supreme Court and ACAT to mark the 20th Anniversary of the Human Rights Bill being tabled in the Legislative Assembly. This Collection of twenty selected ACT Supreme Court and ACAT decisions is just one of the many activities undertaken by the Commission to foster a stronger culture and understanding of Human Rights in the community, including the legal profession. I hope that you will find it a useful resource, and that it inspires you to find out more about Human Rights and use the Act in your everyday life and work – please see our website: ACT Human Rights Commission.  

These are real stories of Human Rights being brought home to peoples’ lives in Canberra and show that the Human Rights Act has actually changed the lives of people (in small, as well as big ways). The cases range from a variety of issues, such as:  

• detainee conditions of detention;  

• housing;  

• health care;  

• vilification and discrimination;  

• criminal law issues of bail, sentencing, fair trials and delay;  

• vulnerable witnesses, family violence and victims of crime;  

• legal representation;  

• miscarriage of justice;  

• mental health;  

• disability and guardianship;  

• planning; and  

• Aboriginal cultural rights. 

The Human Rights Act has been mentioned in 361 ACT Supreme Court and Court of Appeal cases (only marginally more with 474 cases in Victoria, and understandably fewer in the newer Queensland jurisdiction with 51 cases. More surprising is the low number of Tribunal decisions with only 126 ACAT decisions (but there is no notification provision), compared to 431 VCAT cases and 228 QCAT cases (only since 2020). It may be because since 2009 there is a direct right of action under the Human Rights Act to the ACT Supreme Court, but Human Rights matters can only be raised in the Tribunal under existing jurisdictions.  

The Human Right Act emphasises the front end of law making, rather than being litigation driven, with the impact being more pronounced in developing policy and law, as central ACT Government action is performed in the Cabinet process and community consultation which generates informed debate.  

As a result of the Human Rights Act’s influence on the executive and the legislature, the ACT community has benefitted by having better policy and legislation, better protections for vulnerable people, and increased transparency and accountability of executive action. But the actual effective enjoyment of Human Rights by individuals requires the courts and tribunals to play a role as well, to enable equal access to justice for people experiencing disadvantage. 

I hope that this Collection of Cases will assist the national campaign for a Federal Human Rights Act, with the current Inquiry by the Joint Parliamentary Committee, including the recent Free and Equal: A Human Rights Act for Australia Position Paper by the Australian Human Rights Commission.  

Australia is an outlier internationally by not having a Federal Human Rights Act – we’re the only democracy in the world without a Human Rights Act or Constitutional entrenchment. It may be that we’re ironically complacent, because Australia has a proud tradition of equality with our ‘fair go’ ethos, the Westminster system of democratic government and rule of law. However, the existing law common law and Constitution are only piecemeal and not enough to protect our Human Rights.  

I hope that Australia soon implements our clear international obligations in these Human Rights treaties by enacting a national Human Rights Act to ensure that our human rights are more comprehensively protected and respected in law and practice, by having accessible remedies to enforce them when government breaches them eg by not taking them into account in decision-making - limitations that some of us experienced during the COVID pandemic, with the ACT having a more balanced response than States.  

I think Australians want to prevent injustices for vulnerable people who can least afford it and have been genuinely shocked by evidence and findings of three recent Royal Commissions into Federal Government services:  

• Robodebt established in August 2022 with Final Report due 30 June 2023;  

• Violence, Abuse, Neglect and Exploitation of People with Disability with Final Report due in September 2023 (NDIS); and  

• Aged Care Quality and Safety: Care, Dignity and Respect - Final Report 2021.  

I think with a national Human Rights Act that Robodebt would have been prevented or at least remedied more early, and the prosecution of our former ACT Attorney-General Bernard Colleary may have been dropped more quickly. 

What Has ACT Human Rights Act done for us?  

There are ten ways in which the Human Rights Act has changed the ACT for the better. 

1. Increased Human Rights culture by more community rights awareness and commitment for human rights by everyone – there is a need for more resources for Public Service training by the Commission, JACSD and community NGOs. I applaud Justice Verity McWilliams’ call last week that the legal profession have a duty to share our knowledge, in order to increase access to justice and respect for law. 

2. More accountable and transparent decision-making by public authorities, Government and Ministers – requirements in Cabinet Handbook and Annual Reports (Auditor-General’s Report recommendation in 2019), policies, and services eg housing and health.  

3. Higher quality parliamentary scrutiny, laws passed and debated by the Legislative Assembly, eg anti-terrorism, abortion protest zones, outlaw motorcycle gangs, Senior Practitioner, COVID, and soon Voluntary Assisted Dying in 2023. A recurring theme is that blanket laws need to be balanced by having safeguards for individual circumstances so that vulnerable people don’t fall through the cracks. 

4. Improved access to justice and practical remedies with direct right of action to Supreme Court, and interpretation in existing ACAT jurisdictions, and soon more access to human rights complaint process at the Commission - but currently all complaints already take human rights into account for respondent public authorities (however there will be no initial ACAT jurisdiction for human rights, unlike current discrimination complaints); 

5. Better treatment of people in detention. Human Rights Audits of AMC (and its predecessor the Belconnen Remand Centre) and Bimberi (and its predecessor Quamby) were an early and important focus of the Commission due to detainees being in the care of the ACT Government full-time. The Optional Protocol Against Torture took effect in Australia from January 2023 – the ACT National Preventative mechanism consists of the Commission, the Inspector of Corrective Services and the ACT Ombudsman.  

We recommended in the BRC Audit in 2007 that an ACT Inspector of Corrective Services be established, which occurred in 2017 which freed up the Commission to work more on court interventions, but we still train new detention officers - five sessions for over 70 staff last year at both AMC and Bimberi. It also enabled us to focus more on Cabinet and other submission work. Last year we intervened in two SC matters, and made 110 submissions, with 28 in relation to Cabinet Submission comments. 

6. Enhanced scrutiny and monitoring - Police practices eg spithoods discontinued AFP after ACT Watch House incidence involving 16yo girl in 2022. Human Rights Act jurisdiction and new jurisdiction for Victims Charter complaints against Police (but not Discrimination Act, unlike rest of Australia). Thompson High Court case settled about alleged unauthorised arrest for breach of bail by police and bail legislation reformed. Also Johnson case settled for assault by Police of a young person.  

7. Broader human rights coverage incrementally over time eg Economic Social and Cultural Rights to education, work and soon right to healthy environment committed to by Minister Cheyne and due for introduction by the end of 2023. 

8. Better recognition of Aboriginal and Torres Strait Islander Cultural Rights in s 27(2) eg scar trees protective legislation improved, and several court cases eg Brown acknowledged equivalence of health care for detainees, but found no breach found with culturally safe services being provided by Winnunga. 

9. More beneficial services for vulnerable populations - human rights in practice are better protected by proactively including human rights framework, so they are more accessible and there is less discrimination against Aboriginal and Torres Strait Islanders, children, people with disability, culturally and linguistically diverse people, older people, and the LGBTIQ+ community 

10. Stronger implementation of Wellbeing Framework 2020 improves lives of whole population (integrated into Cabinet/Budget): societal values are reflected by treating all people with dignity and respect. Relevant domains containing human rights are not just simple living standards - governance and institutions relies on people’s experience and confidence in human rights protection; and identity and belonging relates to inclusiveness and non-discrimination. 

Need for National Human Rights Act – Australia’s comparative place in world 

The 2009 Report by Frank Brennan on the need for a Federal Human Rights Act resulted in 35,000 submissions with 87% support for a national Act, but we still don’t have a National Act, There was some improvement with a Human Rights Framework being implemented in 2011, with the Human Rights (Parliamentary Scrutiny) Act 2011 requiring all legislation coming before Federal Parliament to have Ministerial Human Rights Compatibility Statements about compliance with seven international human rights treaties.1 It also established the Joint Parliamentary Committee on Human Rights. Although these two important steps help ensure comprehensive scrutiny of legislation, there are still gaps in terms of creating enforceable rights and a widespread human rights culture federally, due to there not being an obligation on public servants to consider human rights in actions and decisions. The Brennan process was undermined by criticism of the role of unelected judges, with confusion between legislative Human Rights Acts and Constitutional guarantee in countries like USA and Canada, where courts have powers to strike down laws for being incompatible.  

The UN was founded on the platform of security and peace being intertwined with Human Rights protection following the horrors of genocide in World War II, with the Universal Declaration on Human Rights (UDHR) in 1948 including both civil and political rights, as well as economic, social and cultural rights. Due to the Cold War the UDHR was bifurcated into two treaties in the 1960s, with the West supporting the ICCPR and the former USSR supporting ICSECR.  

ICCPR rights are framed in stronger language of obligation and must be implemented immediately. Under the ICESCR, obligations are less emphatic and rights are more open textured, but must be achieved progressively to the maximum of a State Party’s resources.  

The Vienna Declaration restates the important principle that human rights are indivisible, interdependent and interrelated.2 Recent treaties for vulnerable groups correctly cover both ICCPR and ICESCR ie women, children, people with disability and indigenous peoples. 

In Universal Periodic Reviews and Concluding Observations to treaty body Communications, there have been consistent recommendations by UN bodies for Australia to give binding effect to implementing our international Human Rights obligations that we have voluntarily entered into as a party by enacting Federal comprehensive legislative protection for human rights. We have been fittingly admonished by the UN Human Rights Committee for our ‘chronic non-compliance’ with its recommendations relating to mandatory detention of children, asylum seekers and refugees offshore, as well as the deepening disadvantage of Aboriginal and Torres Strait Island people.  

In February 2023 the UN Sub-Committee on Prevention of Torture (SPT) terminated its failed trip to Australia (October 2022), due to lack of compliance with OPCAT inspection requirements by authorities in NSW (Queanbeyan Police Watch House) and Queensland (mental health facilities). The UN SPT has only ever before cancelled a visit in one other country, Rwanda, so Australia should be embarrassed about our non-compliance in the five years since the treaty was ratified by Australia in 2017. 

Most Australians are surprised that our outdated 1901 Constitution only protects fundamental rights in just six areas – right to vote; trial by jury (in States); freedom of religion; prohibition of discrimination on the basis of State residency; protection against acquisition of property on unjust terms; and implied freedom of political communication (since 1992). There are no amendments like ‘pleading the 5th’ (self-incrimination) that we hear of so often in US crime shows on Netflix.  

Australian Human Rights Commission’s Free and Equal Report and Committee Inquiry 

The Australian Human Rights Commission’s four-year project coming to fruition this year is called Free and Equal: An Australian conversation on Human Rights, about what kind of values we invest in and what future we want for coming generations. In March 2023 I attended the launch of its Position Paper Report in Sydney, and in December 2023 it will launch a Final Report. Free and Equal that looks at how the whole Human Rights system works together, and what gaps there are in accountability to fulfil our international treaty obligations that we have voluntarily undertaken over many decades to respect, protect and fulfil human rights using all methods for implementation, including legislation, policy, resources etc.  

It recommends an exciting new proposal to include ‘participation rights’ for rights of vulnerable people – Aboriginal and Torres Strait Islander people under the UN Declaration on the Rights of Indigenous Peoples, people with disabilities under the Convention on the Rights of People with Disability, and children/young people under Convention on the Rights of the Child. 

The Joint Parliamentary Committee on Human Rights has current Inquiry with terms of reference to review the scope and effectiveness of Australia's 2010 Human Rights Framework - whether it be re-established, any improvements that could be made, and to consider developments since 2010 in Australian Human Rights laws and relevant case law.  

The Committee is holding public hearings on 12 May and the ACT Human Rights Commission will give evidence about our experiences as a human rights jurisdiction over the last 19 years. Submissions are due by 30 June 2023 and Committee report is due on 31 March 2024. 

What ten features of ACT Human Rights Act do we need in a National Model 

I think the ACT model and some later improvements that have been developed in the States of Victoria (2006) and Queensland (2019) in their Human Rights laws give us a good blueprint of where a Federal Human Rights Act n forge ahead from lessons learned in practice. 

1. Dialogue model (already part-achieved in Parliament: need more Executive and Judiciary work) 

The ACT Human Rights Act is an ‘interpretative’ and ‘dialogue’ model derived from the UK and NZ, involving the three arms of the Westminster System – the executive, legislature and judiciary. The dialogue generated within the ACT executive is not always obvious to outside observers, but it has played a significant role in shaping policy and legislation. Often Human Rights considerations are accommodated through re-drafting of a bill, but sometimes adverse advice will act as a brake on policy proposals that impose unjustifiable restrictions on human rights, that don’t satisfy the s 28 necessary, reasonable and proportionate limitations test. In the early days, there was considerable resistance by the ACT public service that was risk averse to human rights.  

All three ACT and State jurisdictions have Declarations of Incompatibility (DOI) mechanisms to preserve parliamentary sovereignty, by Supreme Courts alerting parliament to laws it has found to be incompatible so that law reform can be considered, but this is not an essential mechanism for the Federal model, especially with Constitutional difficulties over the exercise of non-judicial power (2011 Victorian DOI case in the High Court - Momcilovic).3  

In the UK DOIs have been described as ‘booby prizes’ for litigants. The ACT only had two DOI in 2010 and 2022 - the first (Islam) did not result in any reform to bail law, and the second (Davidson) was not formally brought to the attention of parliament, although the unlawful Corrections policies were quickly amended. The Legislative Assembly is responsive to outcomes of SC litigation as shown by next case study. 

2. Inclusion of economic, social and cultural rights, UNDRIP and right healthy environment (part-achieved Federal - 7 treaties parliamentary security and compatibility statements 

The ACT Human Rights Act has Economic Social and Cultural Rights of education and work, and Queensland has a right to health. The 2009 Brennan Report relied on the advice of the Solicitor-General that the rights to health and adequate standard of living were not sufficiently definite to be justiciable, but did not consider the right to education, probably because it is in UK Human Right Act 1998.  

Critics state that law is an inadequate response to human rights economic and social concerns, simply because of poor enforcement. Law is a necessary, although alone not a sufficient step, towards complying with Human Rights in complex areas using large resources like education, housing and health.  

The right to a safe, clean, healthy and sustainable environment is a major determinant of the right to health, including clean air and water, sanitation, adequate food and shelter.  

This right to healthy environment was successfully supported with ACT Government agreeing in November 2022 to legislate, with a Bill expected later in 2023. Essential elements to protect the right a healthy environment include procedural and substantive rights to receive and impart information, participate in public affairs and decision-making, and the right to an effective remedy for violations. It is our best chance of making government and private actors (including developers and manufacturers) accountable to prevent further degradation and pollution, and protecting our environment for future generations.  

I think that all of UNDRIP should be included in both the ACT and Federal Human Rights Acts. Embedding a human rights culture is also important to continue the healing process in discussing issues of truth, treaty and voice (Uluru). Sub-section 27(2) of Human Rights Act was inserted in 2016 after lobbying by the Commission in partnership with the Elected Body – it respects and acknowledges the cultural heritage, knowledge and kinship ties of Aboriginal and Torres Strait Islander peoples, using some wording from articles 12 and 15 of the UNDRIP. 

3. Parliamentary Scrutiny (partially achieved) 

By the time legislation reaches the Legislative Assembly Standing Committee on Justice and Community Safety (performing Human Rights Scrutiny), it is usually found to be Human Rights compatible. There are instances in which the Opposition and Crossbench parties have successfully moved amendments based on Scrutiny Committee comments, and won over Government. 

 4. Compatibility statements in bills (and delegated legislation) – already achieved:  

The compatibility statement by the Attorney-General for Government bills is a filter for checking if there are limitations on Human Rights and why they must be proportionate (s 28). The ACT Legislative Assembly is a unicameral parliament, like Queensland - comments from stakeholders and oversight agencies can lead to amendments on the floor (from Government, Opposition and Green cross bench). This exchange assists it to make informed decisions on the human rights implications of laws. No bill in the ACT has yet been introduced with a statement of incompatibility, and it is also not uncommon for bills to be amended in response to adverse comments by the Legislative Assembly’s Standing Committee on Justice and Community Safety (Legislative Scrutiny Role). In Commonwealth, Victoria and Queensland scrutiny includes delegated legislation (unlike the ACT (other than recently with COVID declarations) and the SOC role is not centralised in the Attorney-General, but Minister sponsoring legislation instead, which is better for more widely entrenching culture. However, there have been incompatible bills passed in both Victoria and Queensland eg firearms prohibition orders and children in police watch houses, as well as override for detention of individual in prison by removing possibility of parole (Craig Minogue in 2015 and 2018 Bills). 

5. Cabinet and Executive (partially achieved) 

The ACT Cabinet Handbook requires that submissions explicitly consider human gights and the availability of less restrictive options. The ACT Public Service and Human Rights Commission have been particularly effective in both contributing to the development of Human Rights compliant legislation and policy mostly through Cabinet processes and Legislative Assembly debate. One significant difference in the ACT has been for the Commission to see most, and comment on some, draft Cabinet Submissions. Last year 28 of our 110 submissions were on cabinet papers. This level of access has increased the public service dialogue and enhanced the understanding of human hights compatibility, with early awareness and informed deeper scrutiny of prospective limitations or drafting of prospective bills before presentation.  

The trust and high regard for the expertise of our Human Rights legal advisers by officers across the ACT executive means we are regularly consulted at the early stages of policy and legislative development. Our early involvement has meant better legislative outcomes in terms of human rights compliance, as well as increased transparency and accountability of executive action, eg new COVID Public Health amendment requires consultation with Commission for Public Health Directions and Guidelines.  

The Commission and JACSD have in-depth online resources and CMTEDD has developed electronic Human Rights training after the Auditor-General criticised ACT Public Service engagement gap in his 2019 Report, and JACSD is currently developing more online resources. We’ve moved beyond Legal Compliance to Strategic Change with new human rights complaints function, but unfortunately we are not yet at Business As Usual for everyone in terms of service provision. 

6. Obligations on Public Authorities and enforceable litigation – Federal Gap 

These critical elements are missing links in current National Human Rights Framework. The ACT Human Rights Act imposes a direct duty on public authorities to act in a way that is compatible with Human Rights and to give proper consideration to human rights in their decision-making (s 40B). Unlike the Victorian and Queensland legislation, the public authority duty under the Human Rights Act is enforceable through a direct right of action in the ACT Supreme Court, which may grant any remedy, other than damages (s 40C). Litigants can seek ‘the relief it considers appropriate’ eg declaration or injunction. A person may also rely on the unlawfulness of the conduct of the public authority in other legal proceedings in ACT courts and tribunals, such as under judicial review (ie Victorian Charter and Queensland model).  

7. Interpretation and Permissible Limitations on HUMAN RIGHTS – Federal gap 

The ACT Human Rights Act requires Territory laws to be interpreted in a way that is compatible with human rights (s 30), so far as it’s possible to do consistently with its purpose. The idea of balancing competing rights is at the core of the international Human Rights framework - it recognises that limitations are permissible, within the context of the rule of law, and within the parameters of: legality, and necessity; proportionality, temporality; non-discrimination. The reasonable limits test in section 28 of the Human Right Act reflects the recognition in international human rights law that very few human rights are absolute eg torture, and most rights can be subject to permissible limits. Where the Human Rights Act is engaged by legislation, it is likely to involve applying s 28 – it is reasonable if it is: necessary to achieve a legitimate objective; adopts a means that is rationally connected to that objective; and means must be no more restrictive than required to achieve the purpose of limitation. 

8. Human Rights Commissioner (and Attorney-General) Court & Tribunal Interventions 

The Commission has power to seek leave to intervene in legal proceedings that raise human rights issues and we have published guidelines about when to intervene, like Victoria and now Queensland. Unlike Victoria and Queensland where the Commission has a right to intervene, we have to seek leave of the Court. This function has been important to increase understanding of the operation of the legislation and draw upon comparative jurisdiction to assist ACT courts and ACAT interpret rights. I will generally intervene in proceedings that will develop jurisprudence most effectively for the community. I have been granted leave in all but one proceeding in which I have sought to intervene (with that matter not brought to our attention until late in the proceedings). We have sought to improve the notification process where the Territory is a party to proceedings which raise human rights. The submissions we make are well-respected by the court, as shown by the references to our legal arguments in the judge’s final decisions, and indicates the Court’s appreciation for our independent expertise, and the quality of arguments our counsel has put forth: eg Davidson.  

9. Accessible complaints mechanism included in remedies (limited in Federal sphere) 

In the Federal sphere the Commission can only provide limited functions with human rights complaints, as conciliation does not include access to the Federal Court – just a power to write reports to Government.  

Human Rights breaches locally and nationally are more likely to be experienced by people obtaining our services who suffering disadvantage, which has been exacerbated by COVID, such as people with disabilities, Aboriginal people, older people, women, children and young people, refugees and migrants. They are least able to litigate with the enormous expense, time, stress, legal complexity and risk involved. I am delighted with the October 2022 announcement by Tara Cheyne (Australia’s first Minister for Human Rights, since November 2020) that a human rights complaint mechanism will be introduced later this year. The ACT Government accepted the June 2022 recommendations of the JACS Committee Report, which inquired into the August 2021 petition No Rights Without Remedy: a grassroots campaign of NGOs including ACTCOSS, Civil Liberties Aust, Australian Lawyers for HUMAN RIGHTS, Canberra Community Law, and Amnesty. The commitment is only to allow complaints to come through the Commission’s conciliation processes, and I hope that this is later expanded to allow complaints that cannot be conciliated to be heard by ACAT, like discrimination cases. It is notable that the Commission is not going to be initially funded for this new complaints function, but will absorb the work into our existing and enlarged complaints systems in number of jurisdictions as well as volume (which has increased 70% over last 4 years to 1164 in 2021-22 Annual Report).  

10. Reviews of Human Right Act – current Joint Parliamentary Inquiry and future reviews  

Enjoyment of Human Rights is vibrant and not stagnant. Therefore, human rights laws must be dynamic and living documents, ensuring that protection keep pace with continuous changes in society to improve wellbeing eg marriage equality reforms and voluntary assisted dying. There have been incremental amendments of ACT Human Rights Act following mandated reviews, with ten reforms including: Economic Social & Cultural rights of education (but very limited initially) and work in 2016 and 2020; direct obligations to take human rights into account in decisions and actions, and direct access to the Supreme Court for breach by public authorities since 2009; and express recognition of Aboriginal and Torres Strait Islander cultural rights in 2016.  

Five ACT Improvements needed 

In terms of local ACT Human Rights issues, there are five top ones that need to be addressed: 

1. Addressing over-incarceration of Aboriginal people by answering the call by the community for a Board of Inquiry (or Royal Commission) over 2 years ago, and implementing the 2018 Australian Law Reform Commission Pathways report – statistics worse in Report on Government Services, and no Law Reform Advisory Council for five years. There is also a need for better accommodation to separate cohorts of woman at AMC for their safety, with a large percentage being Aboriginal women. 

2. Funding is need for ACT National Preventative Mechanism with commencement of OPCAT in January 2023 (after formal ratification in 2017 by Australia, which covers places of detention including AMC adult prison, Bimberi youth detention Carrie, and involuntary mental health facilities eg Adult Mental Health Unit and Dhulwa. The ACT Human Commission was never funded for AMC compliance work - four Human Rights Audits were conducted over a decade since 2005, and now Healthy Prison Reviews are conducted by Inspector of Corrective Service since creation in 2017.  

Spit hoods were used by ACT Policing on a 16yo girl in the Canberra Watchhouse in 2002 and AFP discontinued use nationally recently, but they have been banned in SA – the Standing Council on Attorneys-General is currently considering national legislative prohibition. The ACT needs a Police human rights and discrimination complaints jurisdiction. 

3. There is an urgent need to provide independent external review of Care and Protection decisions, especially as Aboriginal and Torres Strait Islander children are disproportionately affected – demonstrated in the Glanfield 2016 and LRAC Restorative Cities Report 2018.  

4. Need review Human Rights Act after 19 years of operation which we have called for in a recent letter to the Standing Committee on Justice and Community Safety of the Legislative Assembly. Elements to include are: 

• Inclusion of UNDRIP eg self-determination, consultation and participation rights, and more Economic Social and Cultural Rights eg health (Queensland precedent) and housing: unsuccessful ACT community campaigns 2006 and 2016; 

• Need Statements of Compatibility for all Bills, not just Government Bills, include subordinate legislation (ie regulations) like Commonwealth, Victoria and Queensland; 

• Improve notification provision to Commission for matters where Territory a party (by nature it is the definition of a ‘public authority’) – in Victoria and Queensland Commissioner intervenes as of right in matters under the Human Rights Act (like the Attorney-General’s right in the ACT), with no need to seek leave to intervene; 

• clarify the extent to which ACAT and lower courts eg Childrens Court may assess and remedy breaches of public authority obligations under the Human Rights Act (LM case);  

• include limited damages for human right breaches - UK only moderate damages available under the Human Rights Act 1998; 

5. Improved funding for ACT Human Rights Commission for legal, complaints and community engagement resources.It is also notable that my resources as Commissioner have not been increased in 19 years (apart from temporary third unfunded lawyer recently), despite regular requests for dedicated Budget Bids which have not proceeded, in contrast to new funding for frontline workers increasing at Commission from 5 to 115 staff, and similar expansion for the Government Solicitor’ Office and the Legislation, Policy and Programs division in JACS. I hope with more resources the Commission can develop a community of practice with legal profession and Human Rights NGO communities. 

Conclusion 

As a well-educated and caring community, the ACT has a human rights culture in terms of awareness and engagement, that I think commitment has been strengthened by the Human Right Act. Human Rights have symbolic and substantive impact as a visible and empowering focus for change, offering a justiciable vocabulary to frame and address political and social wrongs for individuals and their lawyers/advocates. The ‘political rights review’ model established by the Federal Human Rights Framework shows that only relying on legislative scrutiny mechanisms to address human rights does not provide adequate protection. I look forward to the day when a national Human Rights Act might be drawn upon by politicians of all persuasions in our Federal Parliament to defend against encroachments of our rights or liberties. There is a grassroots movement for national Human Rights Act, including the Human Rights Law Centre, Australian Lawyers for Human Rights, Amnesty, Civil Liberties, Law Council of Australia etc which I hope will occur soon. I am very excited that the Australian Human Rights Commission’s Free and Equal Position Paper is being considered by the Joint Parliamentary Committee on Human Rights after a referral from A-G Mark Dreyfus.  

Finally, thank you for the honour of inviting me as President to give the Blackburn lecture, which is traditionally given by judges and barristers. My only regret is my role over 19 years is that I could have achieved more for human rights with better resources, but I have high hopes for new President with the current Callida review of our office funding model and resources. I also wanted to finish by thanking the people I’ve worked with over the last 19 years. I’ve cherished the opportunity to lead this ACT work of national significance and it’s time for leadership renewal.  

Dr Helen Watchirs OAM, ACT President and Human Rights Commissioner