By Bill Rowlings, Kris Klugman and Chris Stamford, Civil Liberties Australia
In May 2024 the Parliamentary Joint Committee on Human Rights completed a detailed inquiry into Australia’s human rights framework. The majority of the Parliamentary Committee concluded that Australia needs a Human Rights Act to ensure that all Australians are treated with dignity and respect by our government. The majority also expressed the view that a national Human Rights Act should sit alongside human rights legislation at the State and Territory level, underscoring the need for a Human Rights Act in South Australia.
In the course of its detailed Report, the Parliamentary Committee endorsed the ‘No Rights Without Remedy’ model as the model best equipped to protect and promote Australians’ human rights. The No Rights Without Remedy model is the model championed by the Australian Human Rights Commission (AHRC), supported by Civil Liberties Australia, and is being implemented in the ACT.
The ‘No Rights Without Remedy’ model is a new paradigm in two important respects:
It imposes a positive duty on decision makers to protect and promote human rights; and
Unlike existing human rights legislation in jurisdictions like Victoria and Queensland, it provides a clear pathway to remedy by allowing individuals to take any human rights complaint to independent third party conciliation and, if that is not successful, to the relevant independent tribunal for a mandated remedy.
It is these important features of the model that advocates consider critical to ensuring that human rights legislation delivers a fair and sustainable society. Civil Liberties Australia has kindly shared the following background information that helps explain why a ‘No Rights Without Remedy’ model is both critical and achievable at the federal and state level.
No Rights Without Remedy as a form of Human Rights quality assurance and a control mechanism for good governance
The concept of ‘quality control’ is familiar in many different workplaces. It generally aims to ensure products and services meet required quality standards through inspection, testing and verification before delivery to the customer.
From the Universal Declaration of Human Rights (UDHR*) perspective, human rights are the quality control standards applied by states to deliver the good governance needed to ensure that society is fair and sustainable. The ethical infrastructure built on those standards sets the acceptance criteria and quality control measures, monitors performance and identifies defects and non-conformities.
To ensure that the rights and ethical infrastructure package applies those standards consistently, UDHR requires human rights legislation to include accessible, enforceable remedies for breaches or abrogation of protected rights.
The upstream costs of establishing any human rights legislation in the Australian contexts has mostly been about instilling a new culture into government decision making. The motivation for making the new culture stick in models like the Victorian Charter of Human Rights and Responsibilities, and to a lesser extent the ACT and Queensland, tends to be internal to government and based on simplicity, efficiency and effectiveness – motives that can become less powerful over time.
‘No Right Without Remedy’ models introduce a new external incentive. ‘Customers’ for a HRA will have the ability to hold government to account through both third-party conciliation and the courts for individual decisions that lead to human rights complaints. This places the discipline of third-party scrutiny on individual decision makers, adding a powerful and consistently applied motive for getting decisions right.
Importantly, the cumulative effect of these complaints provides a continuing critique of the Government’s human rights performance that feeds directly into the quality control measures for governance.
The cost of poor quality control on governance
There has been a lot of work on the consequences for business of not imposing a quality assurance control on their production and sales. There is a consensus that the cost of poor quality in a thriving company will be about 10-15% of operations. These losses are in wasted resources and time, discarded products and downtime on the production floor and customer dissatisfaction leading to lost customers and sales.
Civil Liberties Australia has not been able to find much work on the cumulative cost to government of not imposing effective quality assurance control on governance, but it is reasonable to conclude that it would parallel business outcomes. Importantly, poor governance quality assurance control leads to a lack of confidence in the Government’s accountability amongst the customers for its decisions, and a lack of trust that the Government is acting in the best interests of those affected by them.
One indirect method of looking at the cumulative cost to government in not imposing effective quality assurance control on governance is through independent measures of trust in government.
Trust measures like the Edelman barometer have shown a steady decline in Australians’ trust in government to the point where 48% of Australians now see government as unethical and incompetent. Media has been reduced to an echo chamber for 57% of Australians as trust polarises, making it harder for governments to solve problems collaboratively. 54% of Australians now believe that the social fabric that once held this country together has grown too weak to serve as a foundation for unity and common purpose, a worry for governments now facing substantial intergenerational decisions on climate change and the social wage.
Direct costs for individual decisions that have come to the public attention are easier to find. Robodebt is by far the Australian Government’s most catastrophic policy failure. The adoption of digitisation for debt recovery between 2016 and 2020 resulted in the raising of 794,000 false and unlawful debts against approximately 526,000 members of one of the most vulnerable and stigmatised groups of citizens in the country at a cost to revenue of $1.751 billion.
Robodebt could not have happened if the Federal Government had imposed a ‘No Rights Without Remedy’ approach to human rights legislation, as even the most cursory examination of the scheme would have revealed breaches in the Government’s ethical obligations as a model litigant and the capacity for individuals to make human rights complaints to an independent tribunal would have alerted the Government and the public that there was an issue that had to be fixed.
Implementing the ‘No Rights Without Remedy’ model – will there be a cost in increased litigation?
One of the cost related assertions made about the shift to a ‘No Rights Without Remedy’ model of human rights legislation is that it will be a lawyers’ picnic, with a substantial increase in the number of cases brought before independent tribunals. Noting that such an approach will elevate human rights complaints to the same position as discrimination complaints, it is useful to draw comparisons with the way in which Australian jurisdictions treat discrimination cases now.
305 discrimination complaints were handled by the NT Anti-Discrimination Commission (NTADC) in 2022-23, of which 181 were finalised. Only two complaints were forwarded to the NTCAT for a mandatory ruling. In the same period, 2589 other matters were initiated in NTCAT. The NTADC is therefore an effective filter for NTCAT. This outcome is reflected in other jurisdictions.
In 2020-2021, the ACT's ACAT conducted 6357 substantive hearings and received 4136 applications. Of these applications, only 39 were discrimination referrals from the ACT HRC. Over the same period, ACT HRC received 1819 enquiries and 922 complaints, of which 200 related to discrimination.
The Federal experience was similar. The AHRC resolved 3736 complaints under discrimination legislation in 2021-22, of which roughly 2% went to AAT for mandatory remedy (around 74 cases). The AAT resolved 43084 cases over the same period. Unresolved AHRC complaints are therefore currently about 0.172% of AAT (now ART) cases.
The experience in South Australia follows the Federal and ACT pattern. Of the 17532 applications received by SACAT in 2022-23 only 35 were referrals from Equal Opportunity SA under the Equal Opportunity Act. Over the same period Equal Opportunity SA received 553 enquiries of which 399 were within the scope of the Equal Opportunity Act. As is the case with the ACT HRC and AHRC, Equal Opportunity SA is an effective filter for discrimination complaints.
In 2022-23, Queensland Human Rights Commission (QHRC) accepted 289 work related discrimination complaints and 325 other discrimination complaints. The Queensland Industrial Relations Commission (QIRC) hears work related discrimination cases that have not been resolved by QHRC conciliation, and the Queensland Civil and Administrative Tribunal (QCAT) hears non-work-related cases.
In 2022-23, 3142 matters were filed with the QIRC, of which 102 matters were referrals from QHRC. Over the same period 29 120 matters were lodged with QCAT, of which 103 were referrals from QHRC.
In 2022-23 QHRC filtered discrimination complaints effectively for both QIRC (resolving 65% of work-related discrimination complaints through conciliation) and QCAT (resolving 68% of non-work related discrimination complaints through conciliation).
The story is similar in NSW, Victoria and WA.
A NRWR HRA will increase the number of complaints moving to third party conciliation, noting that these cases would otherwise have been dealt with at the agency level. Some of the savings from delays by agencies in resolving human rights complaints can be hypothecated to accommodate the increased resources needed by the third-party conciliator, but there will still be a cost.
Given the proportion of Tribunal workloads currently dedicated to resolving discrimination referrals, it is unlikely that the number of Tribunal cases arising from a ‘No Rights Without Remedy’ model of human rights legislation will increase sufficiently to need a specific increase in tribunal resources.
Conclusion
Enacting a ‘No Rights Without Remedy’ model of human rights legislation helps build trust in government through increased accountability delivered through a quality assurance control driven by external scrutiny and the capacity of third parties to hold government accountable.
The cost of not implementing such a law can be measured by:
the cumulative decline in citizens’ trust in government; as well as
wasted resources; and
time driven by poor decisions and downtime in government activity to fix failures in the decision-making process.
The cost to government of putting the infrastructure in place for a ‘No Rights Without Remedy’ model of human rights legislation is in cultural change management and increasing the capacity of the third-party conciliator. There is strong evidence to suggest human rights complaints are amenable to resolution through conciliation and will rarely need to go to arbitration.
* UDHR: The Universal Declaration of Human Rights is was proclaimed by the United Nations General Assembly in Paris in 1948 on 10 December – now International Human Rights Day – as a common standard of achievements for all peoples and all nations. It sets out fundamental human rights to be universally protected.
Comments