The Australian Human Rights Commission has taken aim at the robodebt program, indefinite detention and Covid policies in a new report setting out a model for a federal Human Rights Act.
According to the AHRC, a Human Rights Act could have provided safeguards to help prevent robodebt, and the “abandonment” and “potential endangerment” of Australians overseas during the pandemic.
The report, released on Tuesday evening, calls for the AHRC to gain new powers to conciliate human rights complaints, in the same way it does for discrimination complaints. Where possible, courts would be required to interpret legislation in line with the Human Rights Act.
The report also proposes additional rights to claim compensation in court for some infringements, including wrongful conviction and unjust detention, although courts could not strike down laws merely for breaching the act.
The set of rights the AHRC proposes to enshrine in federal law include: equality before the law; the right to life; protection of children and families; privacy; freedoms of movement, association and expression; freedom of thought, conscience, religion and belief; rights to education, health, an adequate standard of living, to access social security and a healthy environment.
Victoria, the Australian Capital Territory and Queensland currently have human rights laws, but Australia is the only liberal democracy that does not have an act or charter of rights at the national level.
The AHRC president, Rosalind Croucher, said in her forward to the report that “some argue that our rights and freedoms are protected well enough without one” but “our experience with Covid-19 responses challenges that assertion”.
In a section on concerns with Australia’s Covid-19 policy response, the AHRC said that “unprecedented” border closures and travel caps “effectively [prevented] thousands of Australian citizens from re-entering Australia”.
“These policies resulted in the potential for physical endangerment of Australians overseas; extended periods of family separation; high financial costs associated with inflated travel prices, accommodation abroad and mandated hotel quarantine upon return to Australia; lost employment opportunities; and mental health impacts.”
The AHRC also cited concerns about “inequities” in the vaccine rollout, with vulnerable groups including First Nations people, people with a disability and prisoners left behind; increased police enforcement powers; and use of regulations “without legislative oversight or review”.
The report argued that a Human Rights Act could have provided “a check on executive power by drawing lines that should not be crossed – such as locking vulnerable citizens out of their own country”.
It would also have helped prevent “emergency measures from becoming the ‘new normal’”, “the most vulnerable from falling through the cracks” and “arbitrary decisions and blanket rules” like refusing to allow “a person to cross a border to bury a family member, or an elderly person to receive a visitor”.
The AHRC said that the robodebt case study of “inaccurate Centrelink debt notices” demonstrated that “many of the worst (and most financially costly) human rights failures in Australia arise out of a failure to consult with affected groups”.
It cited the $1.8bn settlement by the commonwealth in the robodebt class action as evidence that “dealing with human rights issues early has obvious economic benefits”.
Croucher said that “a Human Rights Act would have meant public servants had a legal duty to consider the human rights impacts of the scheme”.
In her forward, Crouch argued that the fact “indefinite administrative detention is not unlawful under our existing laws suggests why our current protections … are just not enough”.
The report noted the 2004 high court decision in Al Kateb, in which a majority of the justices found an asylum seeker whose claim for protection had been rejected could be “detained until he could be removed from Australia, regardless of the fact that there was no reasonable prospect of this happening in the foreseeable future”.
The case was set to be relitigated in the high court in early 2023 by an Egyptian man, Tony Sami, whose visa was cancelled due to a fraud conviction. In 2017 the AHRC found that Sami’s detention was arbitrary.
The Albanese government refused to grant Sami a visa and he is being deported without his consent on Wednesday.
Sami, who arrived in Australia in 2000, said he is “going back to a country that I don’t know anybody and I have nothing”.
In the report, the AHRC noted there is currently “no requirement on the government to take action in response to a finding by the commission that there has been a breach of human rights”.
“In many cases, no action is taken, particularly where the findings of the commission conflict with government policy, such as the mandatory and indefinite detention of asylum seekers.”
This left human rights complainants “at the end of a pathway with nowhere to go” with a “non-binding report which may not be effective in achieving individual justice or reform”.
