Monday 11th of May 2026
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towards an aussie human rights....

 

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. 

 

Frank Brennan

Is the renewed push for a Human Rights Act worth the effort?

 

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.

https://johnmenadue.com/post/2026/05/is-it-worth-the-effort-the-renewed-push-for-a-commonwealth-human-rights-act/

 

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         Gus Leonisky

         POLITICAL CARTOONIST SINCE 1951.

         RABID ATHEIST.

         WELCOME TO THIS INSANE WORLD….

damaging?....

 

I am, on the whole, in favour of strong workers’ rights. I have been a small-business employer for the better part of three decades; I have, in that time, seen the casual British employment market behave both better and worse than it ought. So no, this is not the column where I argue that the British worker is too much protected.

 

But the Workers’ Rights Bill, six months in, is now meaningfully damaging the British labour market, and I think someone has to say so before the present trajectory gets worse.

Let me give you the picture as it is on the ground. Day-one rights to claim unfair dismissal. Day-one rights to flexible working applications. New, more generous, statutory sick pay. Tightened restrictions on zero-hours contracts. New protections against fire-and-rehire. New duties on harassment. A fresh framework for trade-union recognition, with a lower threshold. A new “probationary” concept, the legal architecture of which has not, despite repeated industry pleading, yet been settled.

Each of these reforms, taken on its own, has a defensible policy case behind it. Each of them, taken in isolation, would probably do more good than harm. The trouble is what happens when you put them all together, in a single piece of legislation, with implementation rules that arrive in tranches over eighteen months, in front of a labour market in which around 96 per cent of all employment relationships are run by SMEs that do not have an HR department.

What happens is this. The SME owner sits down with her perfectly nice high-street solicitor in early March, walks through the new exposures, and concludes, quite rationally, that hiring an additional UK employee is now an exposure of approximately £80,000 to £150,000 over the first 18 months, on a tribunal-risk-adjusted basis. She doesn’t hire. She uses an agency contractor. She uses a part-time freelancer. She uses, increasingly, a Lisbon-based subcontractor on a B2B services agreement, because the legal architecture of that arrangement is, by happy coincidence, simpler in 2026 than the legal architecture of an employer-employee relationship in Britain.

Multiply this by the country’s 1.5 million SMEs, and you get the data the Office for National Statistics published last month. Net hiring in firms below 50 employees has fallen for the third consecutive quarter, the longest contraction in any non-recessionary period since records began. Use of contractors and consultants has risen 22 per cent year on year. Graduate hiring at SMEs, which was already declining for AI-related reasons, is down a further 14 per cent.

I want to be careful here. I do not blame the people who designed the Bill. The intentions are recognisably good. The impact on the worst-behaved British employers, the call-centre operators, the gig economy edge cases, the Sports Direct end of the warehouse industry, has, on the available data, been broadly positive, and I am pleased about that. The damage is being done in the middle: in the small office, the small studio, the small manufacturer, the small specialist consultancy, where the additional legal exposure is meaningful relative to revenue and the absence of an HR function makes compliance disproportionately expensive.

What would I do? Reverse, immediately, the day-one unfair dismissal right, and replace it with a six-month probationary period during which fair-process protection applies but no tribunal route exists. Couple this with a statutory cap on tribunal awards in firms below 50 employees, indexed to turnover. Give an unequivocal carve-out for under-25 employment to address the hidden graduate-hiring effect we are about to see in earnest. And, finally, set out, in plain English, the “probationary” framework that has been left, deliberately or otherwise, ambiguous.

There is nothing in any of this that compromises the worker who has been with a firm for years and has been treated badly, which is the case the legislators were thinking about when they drafted the original. There is, however, a great deal in it that lowers the legal exposure of taking on the next graduate, the next mother returning to work, the next 19-year-old leaving school in Stoke. We have, in the present design, made it materially harder for those exact people to find a foot on the ladder.

Labour came into office promising to be the party of work. The Workers’ Rights Bill, on its present implementation track, has begun to be the party of unemployment, by quiet accident. Six months from now, the data will be unambiguous. There is still time to fix it. There is, increasingly, not much time after that.

https://bmmagazine.co.uk/columns/workers-rights-bill-uk-hiring-day-one-rights/

 

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PLEASE VISIT:

YOURDEMOCRACY.NET RECORDS HISTORY AS IT SHOULD BE — NOT AS THE WESTERN MEDIA WRONGLY REPORTS IT — SINCE 2005.

         Gus Leonisky

         POLITICAL CARTOONIST SINCE 1951.

         RABID ATHEIST.

         WELCOME TO THIS INSANE WORLD….