Free and equal

Free and equal NTEU’s submission to the AHRC’s proposal for a national Human Rights Framework

In 2019, the Australian Human Rights Commission (AHRC) launched a series of papers, supported by a national conference and community roundtables, proposing the establishment of a national human rights framework. Promoted as being a ‘National Conversation’, the AHRC’s consultation was intended to identify what principles and key elements would make up an effective system of human rights protections, on a national level. The findings of the review would then inform what the AHRC described as 'a comprehensive reform agenda to modernise human rights protection for all.'

Dr Terri MacDonald, NTEU

The AHRC’s proposal covered a number of issues that intersect with the interests of trade unions, including: • Religious and other exemptions • Discrimination at work on the grounds of trade union activity, political opinion and irrelevant criminal record. • Family responsibilities discrimination. • Family and domestic violence (among other things) as new protected attributes. • Better compliance/enforcement measures and complaints processes, including reversing the onus of proof. • Whether or not we need a charter of human rights. The NTEU’s submission supported the recommendations made by the ACTU and other unions for legislative reform around these broader issues. We also examined particular issues relevant to higher education – in particular, the intersection between academic freedom and freedom of intellectual inquiry with discrimination on the basis of union activity and political opinion, and how academic freedom would fit more broadly within a national framework.

Protecting human rights In our recent submissions on the Religious Freedom Bills, the French Review and the AHRC’s National Sexual Harassment Inquiry (held in early 2019), we consistently argued that while it is important to review existing protections for human rights (noting that in a number of areas, Australia does not meet its international obligations) and that more robust measures to protect human rights should be considered, equally important is the need to ensure that existing rights are not undermined by any new laws or frameworks. While supporting the AHRC’s Principles for its framework, we highlighted the AHRC’s own statement that 'Any reform to discrimination law should improve protection across the community. It should not involve creating new forms of discrimination against any sector of society.' We strongly agree with this principle, and it is the primary basis for our opposition to legislation such as that proposed with the Religious Freedom Bill (see report, p. 42). It was also largely because of this premise that, when in 2012 the then Government released a Draft Exposure Human Rights and Discrimination Bill 2012 (HRAD Bill), the NTEU was unable to support the proposed legislation. In particular, one of our major concerns at the time was the need to ensure that any new legislation would not inadvertently result in the lessoning of human rights protections for any group. Similarly, we were concerned that in defining and delineating what constitutes human rights and freedoms, there may be the unintended consequence of restricting human rights, either through design or omission. Our views were not unique and the legislation at that time did not progress, largely due to the concerns of flow on effects that came to light during consultations. Sexual harassment and discrimination That said, however, we agree that improvements and consolidation of numerous areas of human rights legislation should be made, and the AHRC’s framework presents that opportunity. For example, NTEU has previously argued that legislation around sexual harassment and discrimination needs review and reinforcement. In particular, sexual harassment and discrimination in the workplace should be viewed as psycho-social workplace hazards and come under workplace health and safety laws, as well as other industrial relations laws and regulations that deal with workplace hazards and the protection of workers. We also agree with the AHRC’s assessment that there is a plethora of anti-discrimination and human rights related legislation and policy at both national and state level, which is both complex and, in many cases, difficult to access. As a result, provisions can be rendered ineffective in their practical application. Furthermore, we know that ‘intersectional discrimination’ is a problem, as is the impact of duplication, which may see one law overrule another provision, even if it is weaker in effect. Laws around sexual harassment, discrimination, sexism and gender discrimination illustrate both the problems with the complexity of the various frameworks and the ineffectiveness of the current protections.

Coalition's undermining of rights While we agree with the AHRC’s assessment of the limitations and problems around current legislation, the NTEU also noted concerns around the current Government’s attempts to implement legislation that purposefully seeks to undermine the rights of particular groups or sections of the community, and what impact this could have on the AHRC’s proposal. While the proposed Religious Freedom Bill is one obvious concern, there are numerous other discriminatory Bills, such as the anti-union Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 Legislation. In relation to these concerns, we highlighted how the Government consistently fails to take into account the impacts of legislation on human rights, often choosing to ignore the findings of the Parliamentary Joint Committee on Human Rights (PJCHR), whose purpose is to expressly review the impact of proposed legislation on our human rights obligations and laws. Interestingly, while the PJCHR examined the proposed Ensuring Integrity Bill and found significant human rights violations, its report has been largely ignored by the Government.

Academic and intellectual freedom

NTEU’s recommendations to the AHRC broadly supports the proposal for a human rights framework, but we also called for strengthening legislation around academic and intellectual freedom, and highlighted the need to ensure that any new human rights framework will not inadvertently result in the lessoning of human rights protections for any group. Drawing from this premise, we call for consideration of how legislation such as the Ensuring Integrity Bill and the Religious Freedom Bills would impact on a national human rights framework.

As a way to assist with this issue, we put forward the proposition that any federally based human rights framework, regardless of its final form, must at the very least incorporate a legislative review process with greater authority than there currently exists and where recommendations of this authority have enforceability. ◆