Submission to the Inquiry into Australia's Human Rights Framework by the Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights called for submissions in order to conduct an inquiry into Australia's Human Rights Framework and produce a report. The National Mental Health Consumer & Carer Forum (NMHCCF) submitted a response to the call for submissions by 1 July, 2023.

The Terms of Reference for the inquiry are the following:

• to review the scope and effectiveness of Australia's 2010 Human Rights Framework and the National Human Rights Action Plan;
• to consider whether the Framework should be re-established, as well as the components of the Framework, and any improvements that should be made;
• to consider developments since 2010 in Australian human rights laws (both at the Commonwealth and State and Territory levels) and relevant case law; and
• to consider any other relevant matters.

The committee invited submissions by 1 July, 2023 in relation to these matters, and in particular:

• whether the Australian Parliament should enact a federal Human Rights Act, and if so, what elements it should include (including by reference to the Australian Human Rights Commission's recent Position Paper);
• whether existing mechanisms to protect human rights in the federal context are adequate and if improvements should be made, including:
  • to the remit of the Parliamentary Joint Committee on Human Rights;
  • the role of the Australian Human Rights Commission;
  • the process of how federal institutions engage with human rights, including requirements for statements of compatibility; and
• the effectiveness of existing human rights Acts/Charters in protecting human rights in the Australian Capital Territory, Victoria and Queensland, including relevant caselaw, and relevant work done in other states and territories.

Reason for submission

The NMHCCF appreciates the opportunity to provide a submission to the Parliamentary Joint Committee on Human Rights on the Inquiry into Australia’s Human Rights Framework. As a national body for those with a lived and living experience of mental-ill health, as well as their family, carers, and kin, the NMHCCF believes it vital to provide background, themes, and recommendations to issues relating to Australia’s human rights infrastructure. It is paramount that the voice of those who are often unheard yet disproportionately affected by human rights breaches is considered. Through an in-depth consultation process with members of the NMHCCF, this submission uncovers several key issues, inter alia, relating to Australia’s current ineffectiveness in upholding and safeguarding its citizens’ human rights:

• Australia is the only western, liberal democracy without a Human Rights Act/Charter/Bill.
• There is no national standardisation of human rights.
• There is minimal safeguarding of human rights due to the limited powers and resources of the State/Territory human rights bodies to investigate complaints and punish breaches.
• Australia’s federal system means that without a National Agreement between the Federal, State, and Territory Governments, the Australian Government cannot guarantee it will meet its obligations as a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) by the mere fact that it has no jurisdiction over the majority of the detention facilities in the country.
• There is no guide for states and territories with a human rights Act/Charter in place that explicitly outlines how to operationalise and implement their protections.
• There has been no systemic recognition, acceptance, or acknowledgement of human rights harms, especially in closed facilities. This maintains a cycle of distrust of the State by those in its ‘care’ and ensures that history will continue to repeat itself if systemic behaviour is not first accepted and then shame about this behaviour experienced by State actors through a process of restorative justice.
• Criticism from the UN Human Rights Committee on Australia’s human rights record in 2017 is still valid today, especially failures in regard to the treatment of refugees, Indigenous rights and inadequate protections of human rights, especially against those in places of involuntary detention.
• Australia is not party to two core international human rights treaties: The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the International Convention for the Protection of All Persons from Enforced Disappearance. It is also not a signatory to the Declaration on Rights of Indigenous Peoples, sending the message that not all are equal.

Recommendations

With the NMHCCF being a national representative body for, and by people with, lived and living experience of mental-ill health and their family, carers, and kin, it is in a unique position to provide the following recommendations to the inquiry:

1. The NMHCCF is in agreeance with the proposed recommendations for a Human Rights Act in the Australian Human Rights Commission’s (AHRC) position paper, and the Australian Government should propose a federal human rights Act/Charter that aligns with the Articles in the Universal Declaration of Human Rights.
2. That the Australian Government immediately re-establish Australia’s Human Rights Framework and establish reviews for both the Framework and the National Human Rights Action Plan to update their respective components.
3. The Australian Government move to implement a National Human Rights Agreement between all Federal, State, and Territory Governments to ensure it is meeting its obligations as a signatory to OPCAT.
4. That all federal policy documents (legislation, strategies, plans, frameworks, guidelines, etc) governing health, mental health, disability, justice, and any human/social service by extension, be guided by, and apply the principles of, a rightsbased, person-centred approach as opposed to a biomedical approach. This could be best achieved by incorporating the guiding principles in the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD) and providing Statements of Compatibility with the UN CRPD in each policy document, as proposed by Australia’s Human Rights Framework (p. 8).
5. The federal government need to develop a national strategy for Federal, State, and Territory Governments to incorporate a process of human rights harm acknowledgement, apology, and restorative justice by its various systems, departments, and outsourced contractors operating closed-environment services, facilities, and procedures.
6. In alignment with the enactment and implementation of a federal human rights Act/Charter, the AHRC must be strengthened in terms of its mandate, functions, powers, and resources, guided by the Paris Principles.
7. That the Australian Government become a signatory to the two core international human rights treaties it is not yet a signatory to: The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the International Convention for the Protection of All Persons from Enforced Disappearance. The Australian Government should also become a signatory to the Declaration on Rights of Indigenous Peoples.

The NMHCCF offers its standing as a national body for mental health lived experience and its lived experience expertise to the Parliamentary Joint Committee on Human Rights to assist where it can in terms of consultation, advocacy, and implementation of recommendations. It also welcomes the opportunity to work with the Parliamentary Joint Committee on Human Rights, the federal government, and the mental health and disability sectors to improve Australia’s human rights architecture to ensure that all people under its jurisdiction are considered free and equal in dignity and rights. 

Read the full submission & recommendations:

Inquiry into Australia’s Human Rights Framework by the Parliamentary Joint Committee on Human Rights