Australian Governments have ratified human rights treaties on behalf of Australia, and therefore have an obligation to respect, protect and fulfil the human rights of all people in Australia. While some of our international human rights commitments have been enshrined in domestic law, many implementation gaps remain.
In our current system, governments are not always required to make decisions that uphold human rights. Political or economic justifications can easily override human rights, without being tested. There are also minimal protections in place to ensure that the government considers our human rights as part of everyday law and policy making, and takes steps to prevent breaches before they occur. There are limited avenues to seek review of government decisions or actions that violate a person’s human rights.
Often, existing legislative protections frame human rights in the negative rather than the positive. That is, the law narrowly sets out what the government or others cannot do. There is no holistic recognition of our human rights, no positive duty to consider human rights when making decisions, and no process by which to do so. There is also no guidance provided when decision-makers have to balance different human rights.
This paper outlines what our current system of human rights protections looks like, how it is and isn’t effective in ensuring that government respects, protects and fulfils our human rights, why reforming the current system is critical, and options for reform. The case studies throughout show how more fair and equal outcomes can be reached when human rights are protected by law, or instances where there are currently gaps in protection. It provides a basis for members of the public, business sector, NGOs, the legal community and others to submit their views on the proposals contained in this paper, or on other ways to better protect human rights in Australia.