A Commonwealth Human Rights Act must do more than help courts identify breaches of human rights; it must enable them to strike down offending laws and give relief to wronged litigants. The groundwork for an act with teeth is still to be done.
Last week, Hugh de Kretser, President of the Australian Human Rights Commission, told the National Press Club that I had been a fence sitter on a Commonwealth Human Rights Act and that I got off the fence, coming out in favour, when I chaired the 2009 National Human Rights Consultation for the Rudd Government. He was right on both counts.
Seventeen years later, the issue is once again in the spotlight.
I will happily explain why I was a fence sitter, and why I became a convert, and then explain my continued lack of enthusiasm for the subject.
In 1995, I spent a year in Washington DC studying the US Supreme Court and the Bill of Rights in the US Constitution. I was not impressed with the way judges were expected to resolve all the major moral and legal conflicts such as abortion and physician assisted dying. I thought those matters were best left to elected politicians.
But I did see a shortfall in the Australian system for the protection of rights. I thought there was a need for our parliament to be made more attentive to human rights when legislating, and for our courts to develop a consistent jurisprudence of rights. Australia, while lacking a human rights act, was a first-rate international citizen, being a signatory to all the major UN human rights instruments, including the optional protocols that allowed Australians to bring complaints to UN bodies once they had exhausted all domestic remedies. Our courts seemed to be doing a reasonable job developing the common law and interpreting statutes to ensure compliance with these UN instruments. So I was a fence sitter.
In 1998, the UK enacted their own Human Rights Act. New Zealand had already done so in 1990. Post-2001, all equivalent jurisdictions were enacting anti-terrorism legislation. The courts were having to interpret these complex new laws. All equivalent final courts of appeal, except our High Court, had recourse to a human rights act to assist them in their adjudicative function. That increasing Australian judicial isolation together with the overwhelming public calls for a human rights act during our national consultation convinced me to get off the fence.
But I was not all that impressed with the Victorian and ACT models. Their laws seemed to be useful in educating and guiding public servants to ensure compliance with human rights but were next to useless in litigation or in criminal trials. What was the point of having a court able to make a declaration of incompatibility with human rights while being unable to strike down an offending law and or give relief to a wronged litigant? Having got off the fence, I thought any Commonwealth human rights act should have real teeth. I saw little point in agitating for a Canberra equivalent of the Victorian charter.
In recent months, I’ve had many people approach me asking for my views on a Commonwealth act. Our 2009 inquiry arose because the ALP had changed its party platform prior to Kevin Rudd’s election as PM. Having previously been committed to a human rights act, the ALP went to the 2007 election with a commitment merely to hold a consultation. The NSW Right of the party was particularly opposed. The Coalition had always been opposed. I knew we faced an uphill battle. That’s why our committee came up with a cascading set of proposals, some of which could be enacted without a human rights act. For example, both sides of politics accepted the need for the Parliamentary Joint Committee on Human Rights.
On 1 April 2026, to test the current waters, I sent this message to Attorney-General Michelle Rowland:
I had the privilege of chairing the National Human Rights Consultation set up by the Rudd Government in 2009. Your predecessor Robert McClelland was very supportive of this exercise. Your department provided all necessary services for the inquiry and then posted on the department’s website a vast array of materials from our inquiry, including, of course, our final report. On the election of the Abbott government, your predecessor Senator George Brandis directed that all materials from the inquiry be deleted from the department’s website. That was done.
Now that your government has instituted a Royal Commission on Antisemitism and Social Cohesion, I am receiving inquiries about our findings. I have also had approaches from members of the public who think an Albanese government might be interested in revisiting the question of a national human rights act. I suggest that it would be a useful public service for you to instruct your department to repost our report.
As expected, there has been no response. Our report is still unavailable on the Attorney-General’s website. A lot of work needs to be done if the Albanese government and the Canberra bureaucracy are to be convinced that this project is worth the candle.
Fr Frank Brennan SJ has published four books on Indigenous constitutional recognition: Sharing the Country (Penguin Books, two editions, 1992 and 1994); No Small Change: The Road to Recognition for Indigenous Australia (University of Queensland Press, 2015); An Indigenous Voice to Parliament: Considering a Constitutional Bridge (Garratt Publishing, 2023, three editions) and Lessons from Our Failure to Build a Constitutional Bridge in the 2023 Referendum (Connor Court, 2024). He was a member of the Calma/Langton Senior Advisory Group on the Indigenous Voice Co-Design Process.