Australia's opportunity to catch up on human rights

Wednesday 6 September, 2023
by Tarishi Desai

If you ask most Australians, they would likely say they support fundamental human rights.

And in a country where human rights violations don’t often make news, it’s easy to assume Australians are well protected when it comes to access to them.

Those rights, which include access to health and other aspects of health like housing food and water, social security, cultural rights and freedom from discrimination – are supported by most Australians, and perhaps even taken for granted. In fact, almost three quarters of Australians support a national human rights act, with health being one of the most importantly viewed rights.

Surprisingly though, Australia’s track record on formalising this support for human rights is lagging behind other countries.

While Australia has supported human rights at an international level, many human rights are not well protected under Australian law. This includes economic, social and cultural rights, as well as the rights of First Nations people, women, children, LGBTIQA+ people, and people living with a disability or illness like cancer. It’s a double standard that many Australians may not even be aware of, let alone the implications for their own lives.

The McCabe Centre works daily with alumni and colleagues from countries that do have formal human rights protections in place through legislation or the constitution, like Fiji, the United Kingdom, and India, among others. Our work in this space means that we’re regularly made aware that Australia remains the only liberal democracy in the world without a national human rights act or constitutional bill of rights. This makes it difficult for people who have had their human rights violated to seek redress and to prevent human rights breaches from happening in the future.

But we are facing an opportunity to address these inequalities and bring Australia up to speed.

While some Australian state/territory based human rights acts are in place, the absence of a national human rights act means that some people in Australia have greater human rights protections than others. A national human rights act is considered the missing piece of government accountability to ensure all those living in Australia have their human rights protected.

The Federal Parliament is currently reviewing how human rights are protected in Australia, and whether a national human rights act should be adopted. A national human rights act would require the Australian Government and its various agencies to consider human rights in their law and policymaking, their decision-making and service delivery.

This would, of course, improve the lives of people living with cancer. All aspects of cancer research, prevention, treatment and care engage human rights. Experience from the Australian states and territories that have their own human rights acts show that they are effective in improving people’s lives, such as by improving access to healthcare and addressing social determinants of health, such as homelessness.

A tower

Similar experiences are found internationally. Take for example, the case of South Africa where access to healthcare was fought and won under the right to health care services under the South African Bill of Rights.

In Minister for Health v Treatment for Action Campaign (No. 2) civil society organisations successfully litigated for the lifting of restrictions on access to nevirapine, a medicine that prevents mother-to-child HIV transmission, under the South African Bill of Rights which recognises a right to access health-care services. The treatment was only available at certain public hospital sites with no timeframe on expansion of access across the country. The Constitutional Court of South Africa held that the treatment was cheap, safe and effective and that the country had the available resources to increase access to the treatment at more public hospitals to achieve the progressive realisation of the right to health. A national human rights act in Australia could mean similar big wins for the public, but also smaller individual wins for those at the heart of our work – people living with cancer and non-communicable diseases, their families and carers.

This is why the McCabe Centre for Law and Cancer supports a national human rights act.

Together with our colleagues at Cancer Council Australia, we made a submission to the Parliamentary Joint Committee on Human Rights endorsing Australian Human Rights Commission’s proposal for a new national human rights framework centred around a new national human rights act.

For people affected by cancer, a new national human rights act could for example, lead to improvements in healthcare experiences and with services used by people affected by cancer, such as Medicare and Centrelink. It would also help ensure people affected by cancer are able to live a life free from discrimination.

It would also mean that the human rights of people living with cancer are considered in policy and law-making. For example, in the event of a future pandemic, the Australian government would need to consider those most at risk of illness, such as people affected by cancer and other noncommunicable diseases and ensure that they are prioritised in access to vaccinations and treatments. The Australian Government would also have to make sure limitations on individual rights, such visiting ill family members in hospital, are reasonable, necessary and proportionate to the pandemic threat.

Importantly, it would also allow people who feel they have had their human rights (such as the right to health) - violated, to seek justice.

Advancing human rights is needed to reduce the inequities we see in the cancer burden in Australia.

It is critical to improving the lives and wellbeing of all Australians affected by cancer and to ensuring a future free from preventable cancers.

The time for a national human rights act in Australia that protects the rights to health and all other human rights is now.

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