The Commonwealth Parliamentary Joint Committee on Human Rights recently commenced an Inquiry into Australia’s Human Rights Framework. GLaD researchers, together with colleagues from the Drugs, Gender and Sexuality Program and elsewhere, have developed a submission to the Inquiry, including a set of recommendations.
Our submission draws from several research projects completed or underway by GLaD researchers, including Kate Seear’s research that culminated in the publication of Law, Drugs, and the Making of Addiction, our project on human rights and drug policy, and Sean Mulcahy’s new project on LGBTIQA+ rights assessments.
Our submission to the Inquiry concentrates on human rights issues faced by people who use drugs and LGBTIQA+ people. We note that rights limitations for these groups may be harmful, may increase social isolation and alienation, and could generate or exacerbate poor health, social and economic outcomes. Those outcomes may be worse for some already vulnerable groups, including Aboriginal and Torres Strait Islander people and women, among others.
Among the key findings from these projects, our research has found that:
- Human rights are mobilised differently and in sometimes contrasting ways by those in favour of legislative reforms and those opposed, and human rights charters do not necessarily protect vulnerable people from rights infringements, particularly in relation to economic, social and cultural rights. Further research needs to not only better understand rights claims themselves, but how they are performed and received by different audiences.
- Rights are frequently limited in parliamentary human rights scrutiny processes. The nature, extent and quality of explanations offered for limitations varies considerably but often relies on simplistic accounts of problems and solutions. Proportionality assessments used to assess rights limitations as proportionate rarely consider the proportionality, relevance and costs of measures that affect the whole population, including gendered impacts.
- Assessments of rights are heavily reliant on how those undertaking the assessments conceptualise the subjects (i.e., people, communities) and objects (e.g., alcohol, other drugs, sexuality, gender, family violence) of legislation. Such assessments draw from a range of resources, including unevidenced speculation about people and processes, personal experience or the experiences of family and friends, anecdotes, and stereotypes.
- Key stakeholders, including members of parliament and those on relevant parliamentary scrutiny committees, claim to take human rights seriously and see parliamentary rights scrutiny processes as an important cornerstone of Australian democracy. Yet, many of these stakeholders were sceptical about scrutiny processes, sometimes regarding these as a mere ‘tick and flick’ exercise.
- Human rights scrutiny processes often take place behind closed doors and outside of public purview. They often exclude people with lived experience of relevance to the issues being considered, despite advocates, researchers and governments increasingly recognising the need to include people whose rights are affected. Perhaps because of this, human rights advocates rarely use parliamentary scrutiny processes to advance rights claims.
Based on these findings, our submission to the Inquiry makes several recommendations, including that:
- A national bill or charter of rights should be introduced in line with the Australian Human Rights Commission’s position paper, A Human Rights Act for Australia, including a standalone right to bring legal proceedings when one’s human rights have been or are at risk of being limited.
- A review of the proportionality test (typically an aspect of limitations clauses in charters) should be conducted, including its unintended consequences and collateral effects.
- The work of parliamentary rights scrutiny committees should be undertaken more publicly, with peak and peer organisations invited to provide expert advice based on their specific expertise, including lived experience.
- Improvements should be made to the processes by which legal advisors to scrutiny committees are appointed. We suggest this be done through open calls for applicants and a transparent appointment process, limited terms of appointment, and the option to appoint advisors from a broad pool of experts, thereby rotating opportunities for advice in accordance with subject matter expertise.
- Clear public timelines for rights scrutiny processes should be established and reflected in standing orders, and the documents and forms for rights scrutiny processes should be reviewed and revised where possible to better embrace the complexity of the questions that legislators face in determining the rights compatibility of legislation.
The Inquiry will report by 31 March 2024, and you can keep up to date with our research on these issues on this website or via our Twitter: @GLaDLaTrobe.