Entrenching Racism as a Human Right

On March 15, 2023, Attorney-General Mark Dreyfus referred to the Parliamentary Joint Committee on Human Rights a request to deliberate on whether the Commonwealth Parliament should enact a federal Human Rights Act (“HRA”) and, if so, what elements it should include. Dreyfus extended the deadline for the committee to respond to his request to May 30, 2024.[1] This extension enables the committee to consider a 196-page report produced by the Australian Human Rights Commission (“AHRC”) entitled Free & Equal: Revitalising Australia’s commitment to human rights [“Report”).[2] The AHRC also conveniently published a summary of 44 pages under the title Free & Equal. Position Paper: A Human Rights Act for Australia [“Summary”].[3]

The AHRC’s report offers a model for an Australian Human Rights Act and associated reforms. Under this particular model of human rights legislation, the power to determine whether someone violates a human right would be vested primarily in the AHRC, the same organisation that recently decided to depart from the narrow restrictions on religious freedoms that are outlined in the International Covenant on Civil and Political Rights (“ICCPR”).[4]  Found in the Summary of the Report,  the AHRC President, Professor Rosalind Croucher, candidly reminds us that “the Commission has long supported the introduction of a federal Human Rights Act as the best way to anchor the promotion and protection of human rights in Australia”.[5]

One of the conceptually flawed proposals in the Model Human Rights Act relates to its uncritical approval of the United Nations Declaration on the Rights of Indigenous Peoples. Among other things, the report unequivocally states that the HRA “should reflect key rights and principles in the United Nations Declaration on the Rights of Indigenous Peoples”. Although the report was submitted on November 8, 2023, after the resounding defeat of the Voice, it still recommends the establishment of a Voice to Parliament. It advocates the inclusion of cultural and economic rights in the Charter, and also urges courts and policymakers to interpret the HRA in the light of the UN Declaration “in cases where the rights of First Nations peoples have been affected”. And tellingly, it recommends the articulation of the “the right to self-determination … in a preamble to the Human Rights Act as an overarching principle of the instrument.”[6]

Astute observers might speculate when reading the report that the implementation of these recommendations regarding Indigenous Peoples will accelerate the entrenchment of racism as official government policy in Australia. This unrelenting march as official government policy is undoubtedly facilitated by the wholesale embrace of the ‘disparate impact’ philosophy. Under the ‘disparate impact’ philosophy, Indigenous Peoples must be represented in all life’s endeavours in accordance with their numerical strength in society (which seems to increase steadily due to self-identification processes). Thus, for example, in most of Australia’s higher education centers and institutions, some employees are appointed based on their race, and not on the strength of their character and knowledge. There are vice-chancellors for indigenous peoples in these universities, and a coterie of advisory bodies in government institutions and corporations. These diversity-and-inclusion policies suggest Aborigines and non-Aborigines are not judged by equal standards. Hence, “if a person’s track record is insufficient to qualify for a position, their identity may be”.[7] According to Dr Samara McPhedran, such policies are driving, the “soft bigotry of low expectations” that “has long been acknowledged as a barrier to closing the gap in outcomes between Aboriginal and non-Aboriginal Australians”.[8] 

The ubiquitous Welcome to Country rituals, disruptions caused by land rights disputes, the exclusion of non-indigenous people from national parks, and the dual naming of place and landmarks, so conspicuous on the ABC and SBS, are examples of the collective madness that eviscerates the principle of political equality and the promise of a colour-blind society. The list of group rights, prominently promoted by the AHRC, is essentially unlimited. It is easy to conclude that Australia has become a race-fixated society which seeks the eradication of traditional notions of merit and excellence.

In a search for the origins of this discernable societal shift from individual rights to group rights, an observer might blame the ‘disparate impact’ philosophy. This philosophy has fatally eroded Australia’s erstwhile commitment to the principle of political equality and the maintenance of a colour blind society, where persons’ advancement is based on ‘merit’. Although it is notoriously difficult to define ‘merit’, it is certain that the concept does not include racial characteristics. Instead, ‘merit’ is meant to bolster the search for, and the attainment of, ‘excellence’, the achievement of which is measured by people’s industriousness, knowledge, erudition, drive, ambition – without government interference.

In a perceptive essay, Heather Mac Donald argues, in an American context, that “The most consequential falsehood … today is the idea that any racial disparity in any institution is by definition the result of racial discrimination” and that “At present you can have proportional diversity or you can have meritocracy. You cannot have both.”[9] Surely, her ruminations are apply equally to Australia.

Rather than heeding Mac Donald’s advice, the AHRC’s Report unashamedly advocates for “group rights,” derived from the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) and the UN Declaration of the Rights of Indigenous Peoples (“UNDRIP”), to be incorporated in the proposed federal Charter of Rights. Explicitly referred in this document is “A ‘participation duty’ applicable to the executive, to reflect principles of self-determination through practical measures by public authorities, to complement a Voice to Parliament mechanism” and “the inclusion of cultural rights, non-discrimination rights and ICESCR rights alongside the participation duty, to incorporate key UNDRIP rights within a Human Rights Act”, including “a clause enabling human rights in the Human Rights Act to be interpreted in light of UNDRIP in cases where the rights of First Nations peoples have been affected”.[10]

The emphasis of the ACHR on “group rights” at the expense of the rights of the individual seriously ignores the  principle of equality before the law. By indirectly discriminating against the less favoured groups, these ‘group rights’, as advocated by the AHRC, solely benefit a few favoured minorities. Therefore, they nullify the equal rights of individuals because the implementation of ‘group rights’ necessitates the distribution of burdens and benefits on the ground of a person’s race — an involuntary characteristic over which people have no control. Arguably, the elevation of group rights at the expense of individual rights demeans the democratic principle of equality before the law and the concept of inalienable rights of the individual, so admirably expressed by the American Declaration of Independence.[11]

There is also the issue that a federal charter of rights would require bureaucrats from the AHRC and the courts to decide questions of policy. The way such individuals may ‘interpret’ these abstract, and vague rights provisions is not specifically determined, thus allowing a small unelected elite to determine the whole hierarchy of human rights and interests. There is an obvious potential here for a partisan administration of justice, plus a great temptation to appoint judges whose views on questions of policy are those of which the government approves.[12] Essentially, this means that these people would be able to exercise quasi-legislative powers, a development abrogating the separation of powers principle.

However, as stated by Sir Harry Gibbs, former Chief Justice of the High Court of Australia, “the most effective way to curb political power is to divide it. A federal Constitution, which brings about a division of power in actual practice, is a more secure protection for basic political freedoms than a bill of rights.”[13]

Judges must be non-partisan. It is a breach of duty for any judge to express personal opinions on the merits of legislation. Precisely for this reason it is debatable whether the ‘interpretation’ of abstract legal provisions, such as a charter of rights, can be indistinguishable from the moral proclivities of individual judges. Indeed, the possibility of attributing different meanings to the provisions of a charter of rights creates the potential for unelected judges to read their own biases into such a document. When interpreting a federal rights charter, judges would be able to select their preferred outcomes due to vague, aspirational provisions that leave plenty of scope for ‘woke’ interpretation, with the potential to further erode, or even to completely nullify, the principle of political equality.

In this context, it is useful to refer to the AHRC’s view that the HRA should also include “a limitations clause describing the circumstances in which human rights may be permissibly limited.” Specifically, the AHRC recommends in its Report that a charter should include a clause that the HRA may only “be subject to such reasonable limits as are prescribed by law and can be demonstrably justified in a free and democratic society.”[14] To that purpose, the AHRC favours the application of the ‘proportionality’ test which requires that there is a rational relationship between the limitation and the ‘legitimate’ purpose pursued by the legislator. Surely, this limitations clause is meaningless because legislators and policymakers would decide what is demonstrably justified in a free and democratic society and, therefore, the clause could easily be manipulated to suppress the individual rights of people and promote group rights.

Another risk is that a federal Human Rights Act would encourage speculative legal action. While legislation enacted via the democratic process typically needs majority support in the community, those in charge of interpreting the charter of rights may delight in the vagueness and indeterminacy of its abstract provisions because such ambiguity may enable them to achieve through the courts what they are unable to achieve via the ballot box.

There are also serious implications for the maintenance of the Australian federal system. Since a federal charter of rights is interpreted by federal judges, such an instrument would increase the power of judges that are appointed by the central government, which may well strengthen the centralising effect of the charter.[15] These federal judges would be allowed to fashion a ‘right’, the meaning of which would be the same in every Australian state. In other words, the very act of interpreting these abstract human rights provisions would allow the federal bench to impose considerable uniformity and coast-to-coast dispositions on the most critical areas of law.

Of course, there are many other areas where the AHRC’s report makes recommendations which, if implemented, would seriously and adversely affect individual rights, but within the constraint of this article, the likely danger that the charter will cement racism as an official government policy is such that commentators might want to focus on it. And yet, the federal Attorney-General wants a joint parliamentary committee to rely on the AHRC proposing the adoption of a ‘woke’ charter of rights based on the empowerment of favoured minorities.

There are compelling reasons to believe that, once enacted, this sort of legislation would profoundly erode the rule of law by providing an unaccountable elite with a powerful mechanism to undermine the democratic process and to force its own moral biases on an uninterested, uninformed, or reluctant majority.

But more importantly, it is ironic that the ‘disparate impact’ philosophy which has been promoted as the magical wand to eradicate racism, is itself the vehicle that perpetuates, and indeed entrenches, racism in Australia.

Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia. Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University. 

Moens and Zimmermann are the authors of ‘The Unlucky Country’ (Locke Press, 2024). To order your copy, click at https://lockepress.com/product/the-unlucky-country/

[1] Inquiry into Australia’s Human Rights Framework, at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/HumanRightsFramework.

[2] At https://humanrights.gov.au/Revitalising-Australia%E2%80%99s-commitment-to-human-rights.

[3] At https://humanrights.gov.au/sites/default/files/free_equal_hra_2022_-_summary_report_rgb_0.pdf.

[4] Chris Merritt, ‘Proposed Restrictions are a Direct Attack on Schools’ Religious Freedom,’ The Australian, 11 April 2024,

[5] Summary, 6.

[6] Report, 186.

[7] Dr Samara McPhedran, ‘Low Expectations: Are Universities Failing Aboriginal Academics?’, Close the Gap Research, March 2024, 4.

[8] Dr Samara McPhedran, ‘Low Expectations: Are Universities Failing Aboriginal Academics?’, Close the Gap Research, March 2024, 4

 [9] Heather Mac Donald, ‘Disparate Impact Thinking Is Destroying Our Civilization,’ Imprimis, February 2024, Volume 53, Number 2, 1 and 5.

[10] Summary, 17.

[11] Alvin Schmidt, How Christianity changed the World, Grand Rapids: Zondervan, 2004, 259.

[12] Sir Harry Gibbs, ‘Does Australia Need a Bill of Rights?’, Samuel Griffith Society, Vol.6, 1995,  at:  http://www.samuelgriffith.org.au/papers/html/volume6/v6chap7.htm..

[13] Sir Harry Gibbs, ‘A Constitutional Bill of Rights,’ in K. Baker (ed.), An Australian Bill of Rights: Pro and Contra (Melbourne, Institute of Public Affairs, 1986), p 325.

[14] Report, 189.

[15] James Allan, ‘Bills of Rights as Centralising Instruments’, Samuel Griffith Society, Vol.18, 2006, at: http://www.samuelgriffith.org.au/papers/html/volume18/v18chap5.html