The five principles are as follows. First, human rights are not top-down projects but forged in political claims and struggles emerging from below. Secondly, human rights must be guided by a commitment to substantive equality and questions of distribution. Thirdly, human rights must be decolonial and reparatory. As the author puts it: “Unredressed injustices echo through the generations” and demand “an adequate reckoning of these accounts.” (p 230) Fourthly, human rights push back against visions of the world which see everything as a commodity; instead, it insists upon a place for public goods. Fifthly, human rights must respect planetary boundaries and ecological limits. Hohmann rightly observes that this principle requires “an element of humility” (p 247).

The conclusion’s five principles resonate with my experience of social rights, especially the right to adequate housing. As Chief Human Rights Commissioner in Aotearoa New Zealand, I led a national human rights inquiry into what my colleagues and I called “the right to a decent home”. We worked closely with the National Iwi Chairs Forum, the lead organisation representing the Indigenous peoples of Aotearoa (Māori), as well as civil society organisations. The inquiry’s various reports rest upon Framework Guidelines on the right to a decent home in Aotearoa, which include a chapter on colonisation. The Framework Guidelines devote a section to the values that are embodied in human rights. These values endeavour to reflect the world views of both Māori and non-Māori. In her book, Hohmann gives careful attention to Indigenous peoples and housing. Her concluding principles chime with the Framework Guidelines.

After stepping down as Chief Commissioner, and inspired by Māori, I’ve tried to re-imagine human rights for our challenging times. Hohmann’s five principles help to point the way forward. Agreed, we need to engage with social movements emerging from below. We must take more seriously economic inequality and public goods (the ‘commons’). We need to grasp pluralistic (not only liberal) values. Indeed, our planetary limits are existential.

However, more collective thought is needed. Contrary to the liberal myth, human rights are not apolitical, so do we need to remove narrowly understood human rights from the limited, liberal world view and relocate re-imagined human rights in another political paradigm, such as participatory, democratic socialism?

And what to do about the corporate leviathans that threaten our planet and widen economic inequalities? For literally thousands of years, humanity has tried to devise arrangements for the democratisation of state public power, such as the separation of powers, an independent judiciary, free and fair elections, freedom of the press, other human rights, and so on. We’ve not solved the problem of undemocratic state power, but we have made some progress. What about the democratisation of corporate public power? The UN Guiding Principles on Business and Human Rights are a step in the right direction, but few commentators would argue that the Guiding Principles democratise corporate public power. Should the global human rights movement confront the immense challenge of democratically unaccountable corporate public power? Hohmann compellingly suggests it should.

This book makes a terrific contribution to the struggle for “a just housing future”. But it goes further than that. It helps us think about the future of human rights.

As I argue in my recent book, Housing and Human Rights, housing policies that do not centre housing as a human right generally entrench inequality, and when they fail to tackle structural factors, they individualise housing issues inhibiting our ability to see and to resist human rights violations.

Let me illustrate one facet of this process using Australia’s housing crisis as an example. The baby’s death in the Wagga Wagga encampment was reported in the national media, and characterised as a tragedy and a ‘tipping point’ in Australia’s deep housing crisis. But there was no palpable sense of wide or enduring outrage. The baby, and the community’s hardship and grief, were soon forgotten by most. Why? As my book discusses, many governments – the Australian government included – have worked hard to create the landscape of housing law and policy which produced this situation, and ‘sell’ this vision of housing to their citizens.

Homeownership is ‘the Australian Dream’. Successive governments of all political persuasions have supported ownership with significant tax breaks and preferential policies, promoting it on the basis of personal, and indeed intergenerational, financial security and belonging. In doing so, they have created a system of ‘asset-based welfare,’ where the family home (and increasingly an additional home purchased as in investment) is expected to step in and fulfil the role of the state. With asset-based welfare, the state no longer needs to provide social security, rights to adequate pay and working conditions, rights to aged care, or even education: the financial security of one’s home can, it is assumed, be leveraged to deliver these social goods.

But asset-based welfare not only acquits governments of their social rights obligations, it works against the realisation of human rights in general. It makes housing unaffordable as it becomes financialized, encourages unsustainable mortgage debt burdens increasing housing insecurity, and privileges exchange value over use value, violating the heart of the right to housing: as a place to live in dignity, security and peace. At the same time, investment in housing concentrates housing in the hands of the few, leading to more unequal societies, which are the ‘antithesis of human rights’. And, I argue, by privatizing our social goods and rights and expecting them to be fulfilled through individual home ownership, it makes us look away from the social deprivations of others, and accept the violation of their human rights without outrage.

As my book argues, the answer to the global housing crisis cannot lie in commodified and financialized homeownership, in treating housing as a wealth-generating machine, or in ever further ways to financialise people’s living spaces. Instead, it lies in remembering that housing is a human right and that housing justice lies at the heart of a fair society, one in which we are all included.  And it lies in framing our laws, policies, and activism around that heart.

The new case signals the “second front” in Australia’s detention jurisprudence. In NZYQ, the High Court held that indefinite administrative detention of non-citizens was unconstitutional once removal from Australia was no longer practically possible. That decision, delivered in November 2023, overturned nearly two decades of precedent and prompted the release of more than 140 people. In response, the government swiftly enacted new legislative controls designed to maintain surveillance and containment over those released, without formally reincarcerating them.

The constitutional issue now before the Court is whether such coercive visa conditions cross the line between regulation and detention. If this new regime restricts people’s freedom, it might once again breach Chapter III of the Australian Constitution, which reserves the exercise of judicial power—including the power to impose detention—for the courts. Therefore, the difficulty strikes at the heart of Australia’s separation of powers: will the executive, in the name of “risk management,” impose restrictions equivalent to imprisonment without judicial consent?

This question reveals a unique constitutional landscape in Australia. Since a national human rights charter does not exist, there is no express constitutional right to liberty. Human freedom is protected structurally through the rule that only courts can order detention. In NZYQ, the High Court applied that principle to ascertain that administrative detention ceased to be lawful once its statutory purpose—to assist deportation—could no longer be met. Whether the logic applies to a post-detention regime in the form of intensive monitoring rather than physical confinement will be a matter of judicial consideration ahead.

The question is not only the reach of executive power but the meaning of liberty itself. The government defends its measures as necessary to protect the community from non-citizens with criminal histories. The plaintiffs counter that constitutional limits cannot be overridden by administrative convenience. As the High Court has emphasised, the Constitution does not permit the executive to achieve indirectly what it is prohibited from doing directly.

From a global standpoint, the controversy extends well beyond Australia’s borders. Article 9 of the International Covenant on Civil and Political Rights (“ICCPR”) guarantees freedom from arbitrary detention. The UN Human Rights Committee’s decision in A v Australia (1997) had previously found Australia’s mandatory immigration detention regime to be in breach of that provision. The return of detention-like controls—now known as “supervision”—gives rise to familiar problems of compliance with responsibilities imposed by the international community.

Comparable struggles are visible across jurisdictions. The United Kingdom’s Rwanda deportation scheme and the United States’ ICE detention practices both test the limits of executive discretion in the realm of migration control. Australia’s current litigation thus contributes to a global dialogue about how liberal democracies reconcile border management with constitutional and human rights norms.

As the High Court prepares its judgment, the stakes could not be higher. If it recognises that coercive supervision can amount to a deprivation of liberty, it will reaffirm the judiciary’s central role in safeguarding rights through constitutional structure rather than statutory charters. If not, Australia may witness the quiet reconstitution of indefinite detention under another name. Either way, the outcome will shape not only the future of Australian constitutionalism but also the global understanding of freedom in an age of securitised migration governance.

These achievements should not be understated. They mark a turning point in Victoria’s self-perception, its environment, and its obligations to Traditional Owners. The Birrarung Council has become a vehicle for river governance, and the Act’s recognition of the Traditional Owners’ custodianship has inspired dialogue and collaboration between communities and government entities. For the Traditional Owners, having their names, language, and worldview written into law is a hard-won, long-overdue victory.

Yet, symbolic recognition has its limits. Viewed through the lens of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Act falls short of meeting the minimum standards for Indigenous Peoples’ rights under international law. The Traditional Owners hold advisory roles only; their recommendations do not bind government decision-makers on how the river is managed. This limitation underscores a broader issue in Australian law, where Indigenous participation is often framed as cultural consultation rather than meaningful participation in decision-making. Moreover, the Act formally recognises the Wurundjeri Woi-wurrung Peoples, but omits the Bunurong Peoples — despite their long-standing custodianship of the river. And while the Act speaks of custodianship, it does not embed the Traditional Owners’ right to Free, Prior and Informed Consent (FPIC) — an international legal standard under UNDRIP that requires governments to obtain Indigenous Peoples’ agreement before taking any action that affects their lands, waters, and rights.

This gap between symbolic recognition and decision-making authority matters. Australia endorsed UNDRIP in 2009, affirming Indigenous rights to self-determination, co-governance, and meaningful participation. Laws that symbolically celebrate Indigenous culture without redistributing decision-making authority risk reinforcing colonial legacies.

Indeed, the Birrarung’s story is inseparable from Victoria’s colonial history. The river was possessed and renamed by British colonisers, polluted and degraded during Melbourne’s industrial expansion, and governed for generations without the Traditional Owners’ voices. UNDRIP is designed precisely to address such structural exclusions. Its principles — self-determination, FPIC, respect for culture, and equity — provide the minimum global standard that modern laws must meet. However, when advisory roles are the ceiling rather than the floor of post-colonial governance frameworks, there is a risk of repeating old colonial patterns.

The timing also matters. The failure of the Aboriginal and Torres Strait Islander Voice Referendum in 2023, and ongoing treaty and truth-telling processes in Victoria, have placed new focus on how recognition is delivered in law. These processes aim to address Australia’s colonial past and explore rights recognition and co-governance for reconciliation. The Act, therefore, speaks to a wider Australian and international challenge: how do we move from recognition to justice in practice?

The Yarra River Protection Act is globally significant. It tells of change, survival, and recognition long denied. But it also shows how easy it is for recognition to stall at the threshold of justice.

Note: This post draws on my March 2025 open-access publication in the Australian Journal of Human Rights, titled “The Yarra River Protection Act: a step towards implementing the UN Declaration on the Rights of Indigenous Peoples?”, which has become one of the journal’s “most-read articles of all time”, and was featured by New College (University of Oxford) and the Department of Land Economy (University of Cambridge).

La High Court of Australia sostuvo por mayoría que para efectos del segundo elemento de la sección 223(1), “cuando las leyes y costumbres [tradicionales nativas] relevantes establezcan que la ‘conexión’ para los fines de la sección 223(1)(b) de la NTA puede probarse por medios distintos a los actos físicos de reconocimiento… no serán necesarios los actos físicos para probar dicha ‘conexión’ [para reclamar derechos de native title]”. La Corte aclaró que la sección 223(1)(b) solamente requiere que exista una “conexión”; es decir, una conexión “espiritual” puede ser plenamente suficiente.

Esta sentencia marca un hito importante en el desarrollo jurisprudencial de la sección 223(1) estableciendo un precedente por parte de la mayoría de los jueces de la High Court of Australia, cuyas decisiones pasadas —que sostenían que la conexión espiritual no era suficiente a los fines de la sección 223(1)(b)— eran, con el debido respeto, inconsistentes con la UNDRIP. Justice Callinan en Ward (2002) párrafo [650] había dictaminado que “… el common law solo podía proteger los derechos de native title … que involucraran ‘la presencia física en la tierra’… mas no podía proteger otros aspectos de la conexión espiritual…”.

[El pueblo Arabana, también conocido como Ngurabanna, es un grupo Aboriginal australiano asociado del extremo norte de South Australia. Ellos presentaron un reclamo por native title en el sentido de la sección 223(1) de la NTA sobre un área de tierra en las cercanías del pueblo de Oodnadatta en South Australia (“el Área Común”).]

La Historia Del Reconocimiento De Los Derechos De ‘Native Title’

Como sostuvo Justice Jagot en Stuart v South Australia párrafo [159]: ‘el reconocimiento de los derechos e intereses de native title en el common law (desde la decisión en Mabo v Queensland [No 2]) y posteriormente bajo la NTA está arraigado específicamente a la historia de la colonización y el asentamiento británico en Australia. Durante los siglos XVIII y XIX, los británicos (así como otros europeos) llegaron a ‘las colonias’, incluyendo Australia.” Como observó Justice Brennan en Mabo [No 2] párrafo [35] “[los] colonos ingleses tenían ante el common law el derecho a vivir bajo el common law de Inglaterra … en tanto que ‘derecho de nacimiento’”. La decisión de la High Court of Australia en Mabo [No 2] revocó la doctrina del common law de la terra nullius (tierra no perteneciente a nadie) en parte para detener la perpetuación de la injusticia, asegurar la igualdad de todos los australianos ante la ley y traer la ley en línea con la historia australiana. Esta sentencia histórica reconoció que los pueblos Indígenas tenían sistemas legales complejos antes de la colonización y disfrutaban de sus derechos a la tierra de conformidad con sus propias leyes y costumbres tradicionales. De este modo la NTA fue promulgada para codificar los principios establecidos en Mabo [No 2].

La “Prueba De Conexión” Y El Cumplimiento De La UNDRIP

En 2009 Australia ratificó la UNDRIP cuyas Artículos 25, 26 y 27 reconocen y protegen los derechos de los pueblos Indígenas a la tierra y el territorio. De allí que es esencial que la conexión con el territorio sea reconocida conforme a sus propias leyes y costumbres toda vez que el concepto de propiedad individual no indígena no siempre refleje esta relación. Para muchos grupos Indígenas —en tanto que comunidades, grupos lingüísticos o naciones— la conexión con el territorio es colectiva, no individual extendiéndose más allá de los lazos físicos o económicos para incluir la conexión espiritual. El abogado del grupo, Mr Kenny, dijo que “[esta sentencia] reconoce y refuerza la conexión espiritual como un elemento esencial para el reclamo de native title el cual los Arabana pueden probar.” Mr Stuart afirmó que “… el pueblo no se ha extinguido … hemos estado aquí siempre, seguimos aquí y estaremos aquí para siempre. Las fronteras de los estados y territorios pueden cambiar, pero la tierra Arabana siempre es tierra Arabana, así como todas las demás tribus en Australia.”

[Expreso mi más sincero agradecimiento al Dr. Eliezer Sanchez-Lasaballett por su amable asistencia con la traducción al español de esta entrada del blog.]

By majority, the Court held that for purposes of the second limb of s 223(1), ‘where the relevant [native traditional] laws and customs demonstrate that “connection” for the purposes of s 223(1)(b) of the NTA may be established other than by physical acts of acknowledgment … physical acts may not be necessary to demonstrate such “connection” [to claim native title rights]’. The Court clarified that all s 223(1)(b) requires is that there is a “connection”; a “spiritual” connection may be sufficient without qualification. This judgment marks a pivotal development in the s 223(1) jurisprudence by setting a precedent supported by a majority of the HCA judges, as certain earlier decisions—holding that spiritual connection is insufficient for the purposes of s 223(1)(b)—are, respectfully, inconsistent with the UNDRIP: Callinan J in Ward (2002) at [650] ruled that ‘… the common law could only protect native title rights…that involved “physical presence on the land”… it could not protect other aspects of the spiritual connexion…”.

[The Arabana people, also known as the Ngurabanna, are an Aboriginal Australian group associated with the far north of South Australia. They submitted a claim that they held native title within the meaning of s 223(1) of NTA over an area of land in the vicinity of the township of Oodnadatta in South Australia (“the Overlap Area”).]

The History of Recognition of Native Title Rights

As Jagot J elucidated in Stuart v South Australia at [159], ‘the recognition of native title rights and interests at common law (from the decision in Mabo v Queensland [No 2]) and subsequently under the NTA is rooted in the specific history of British colonisation and settlement of Australia. Over the 18^th and 19^th centuries, British people (and people from other parts of Europe) made their way to “the colonies” including Australia.’ As Brennan J observed in Mabo [No 2] at 35, ‘[the] English colonists were, in the eyes of the common law, entitled to live under the common law of England … as their “birthright”’. The HCA’s decision in Mabo [No 2] overturned the earlier common law doctrine of terra nullius (land belonging to no one), in part to cease the perpetuation of injustice, ensure the equality of all Australians before the law, and to align the law with Australian history. The landmark judgment acknowledged that Indigenous people had complex legal systems prior to colonisation and enjoyed land rights in accordance with their own traditional laws and customs. The NTA was enacted to codify the principles outlined in Mabo [No 2].

The “Connection Inquiry” And UNDRIP Compliance

Australia endorsed the UNDRIP in 2009, and its Articles 25, 26, and 27 recognise and protect Indigenous peoples’ rights to land and country. It is essential that their connection to country is acknowledged according to their own laws and customs, as the non-Indigenous concept of individual property ownership does not always reflect this relationship. For many Indigenous groups—such as communities, language groups, or nations—connection to country is collective, not individual, and extends beyond physical or economic ties to include a spiritual connection. The group’s lawyer, Mr Kenny, said that ‘[this judgment] recognises and re-enforces spiritual connection as an element in a native title claim, which the Arabana can show.’. Mr Stuart said that ‘… there wasn’t no extinction of people … we were always there, we are there and we’ll always be here. Boundaries might change with the states and territories, Arabana land is always Arabana land, as with every other tribe in Australia.’.

The Torres Strait Islands are slowly disappearing owing to rising sea levels and costal erosion. Fortunately, however, in a landmark decision, the United Nations Human Rights Committee recognised that inaction on climate change can violate basic human rights, including the right to life, culture, and family life. Daniel Billy et al v Australia marked the first time an international human rights tribunal held a state accountable for climate inaction directly affecting Indigenous communities.

Human Rights and the Climate Crisis

The communication, brought under the International Covenant on Civil and Political Rights (ICCPR), was submitted by eight Torres Strait Islanders, who argued that Australia’s failure to cut emissions and implement timely adaptation measures infringed their rights under Articles 6, 17, and 27 of the ICCPR. They documented the destruction of ancestral burial sites, reduced access to traditional foods, and damage to homes and livelihoods. Thereby, indicating harms which are deeply intertwined with their cultural identity and spiritual connection to land.

Cultural Identity and the Right to Stay

The Committee found violations of Articles 17 and 27, affirming the Islanders’ right to privacy, family, home, and culture. Importantly, it rejected Australia’s argument that relocation could be a sufficient response, recognising that forced displacement would sever the Islanders’ unique connection to land, language, and heritage. In doing so, the Committee offered a rare and powerful articulation of how environmental degradation jeopardises not just physical survival but the dignity and cultural continuity of affected communities.

Life with Dignity: A Legal Threshold

Although the Committee did not find a violation of Article 6 (the right to life), it acknowledged the broader concept of “life with dignity,” referencing General Comment No. 36 on the right to life [8.7 – 8.8]. Dissenting members argued that the erosion of access to traditional food, cultural practice, and safety already represented an infringement of the right to live with dignity. This raises an urgent legal question: when does the cumulative impact of climate change cross the threshold from environmental harm to a violation of the right to life?

The Missing Link: Mitigation Obligations

A critical limitation of the decision lies in its silence on climate mitigation. While the Committee accepted jurisdiction over Australia’s alleged failures in this regard, it ruled only on adaptation. This reflects a broader challenge in climate-related human rights litigation: the legal framework is more developed in addressing the effects of climate change than its root causes. Still, dissenting members, including Gentian Zyberi, emphasised that without robust mitigation efforts, adaptation becomes increasingly ineffective and may ultimately prove futile. This is particularly relevant given Australia’s historically poor record on emissions reductions.

A Precedent for Global Climate Justice

The case also sets important procedural precedents. Previous petitions by Indigenous communities—such as those by the Inuit and Athabaskan peoples—were dismissed on admissibility grounds. In contrast, the Committee in Billy recognised the petitioners as victims of current or imminent harm from state inaction. This shift acknowledges the rapid pace of environmental change and the need to act before irreversible damage occurs.

Meaningful Consultation and Future Protection

Beyond its legal implications, the decision reinforces the significance of Indigenous knowledge and participation in climate governance. The Committee ordered Australia to provide full reparations, including compensation and genuine consultation with affected communities, aligned with the principles of free, prior and informed consent under the UN Declaration on the Rights of Indigenous Peoples. As Yessie Mosby, one of the claimants, stated, the most meaningful remedy is not just compensation, but being heard and respected in decisions that shape their future.

Conclusion: Climate Change as a Human Rights Crisis

This decision resonates beyond the Torres Strait. It signals growing recognition that climate change is not just an environmental issue, but a human rights crisis. The right to live with dignity includes remaining on ancestral lands, practicing culture, and passing traditions to future generations. Billy sets a vital precedent for vulnerable communities seeking to hold states accountable, not only for climate inaction, but for failing to protect the dignity of those already facing its effects.

On 12 March 2025, the High Court of Australia (‘the Court’) issued its much-awaited decision on the case of Commonwealth of Australia v Yunupingu. The Court held that any actions undertaken by the Commonwealth that extinguished or impaired native title rights without just term compensation prior to the enactment of the Racial Discrimination Act 1975 constitute invalid acquisitions of property under section 51(xxxi) of the Australian Constitution. The judgment not only sets a precedent for compensation claims regarding actions by the Commonwealth that predate 1975, but also highlights the potential of Freedom of Religion or Belief (FoRB) as a complementary legal framework in strengthening Indigenous Peoples’ land claims.

Background

The two applications, a determination and a compensation application, filed in 2019 against the Commonwealth by the deceased Yolngu activist Dr. Galarrwuy Yunupingu, on behalf of the Gumatj clan, were the latest in the Yolngu Peoples’ long-standing pursuit of native title recognition in the Gove Peninsula in Arnhem Land, Northern Territory. From 1911 to 1978, the Commonwealth Government held exclusive legislative authority over the Northern Territory enacting multiple ordinances, including mining leases in the claim area. The Gumatj Clan contended that under section 61 of the Native Title Act 1993 (Cth), which recognises the rights and interests of Aboriginal and Torres Strait Islanders on lands and waters according to their traditional law and customs, the actions of the Commonwealth constituted an acquisition of property other than on just terms, therefore compensable under section 51(xxxi) of the Australian Constitution. The Court upheld the Gumatj Clan’s argument, marking a significant development in native title jurisprudence. Before this judgment, native title holders were entitled to compensation only for acts by the State and Commonwealth that contravened the Racial Discrimination Act which occurred after its enactment.

Indigenous Land Claims as Sacred Land Claims

While the judgment primarily centres on native title compensation, it explicitly acknowledges the unique nature of the native title and its deriving set of rights, which cannot be equated to common law proprietary rights and significantly intersect with religious rights [134,137]. The definition of native title provided by Justice Gordon in the relevant section encompasses two elements that characterise the relationship that Indigenous communities worldwide maintain with their ancestral territories, which, despite the cultural specificities, is one of the main defining traits of their identity. The first element is the distinctive spiritual value that indigenous lands and water hold for the indigenous communities, crucial for the perpetuation of their religious practices [133,134]. The second aspect is the collective dimension of native title and the deriving rights which differ from the concept of ownership as it is framed in common law in that it involves a long-lasting communal use of their territories and a collective enjoyment of the connected rights [141,142].

Advantages of Resorting to FoRB in Strategic Litigation

By affirming that the native title expresses a religious relationship, the decision of the Court offers the possibility to invoke the guarantees afforded by the international legal apparatus on FoRB, instead of relying exclusively on property rights, and aligns with the relevant articles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

In International Human Rights Law (IHRL), the legal framework of FoRB is essentially grounded in article 18 of the Universal Declaration of Human Rights (UDHR), together with the other instruments based upon it, notably the legally binding articles 18 and 27 of the International Covenant on Civil and Political Rights (ICCPR). However, the religious rights of Indigenous Peoples, inextricably tied to their lands and waters, are specifically protected under articles 12 and 25 of the UNDRIP, which rearticulate the existing norms on FoRB, broadening their scope to include Indigenous Peoples’ interests.

Resorting to FoRB in Indigenous land claims presents different advantages. FoRB is well-established in IHRL and many national legal systems recognise it at a constitutional level, making it less susceptible to being overridden by competing rights. Whereas property or land rights are usually narrowly defined and offer a less comprehensive range of protections, FoRB intersects with other human rights, thus covering the multidimensional interests typically linked with Indigenous Peoples’ land claims. Furthermore, the legal standing of FoRB, confirmed by supporting jurisprudence internationally, fosters greater accountability on the part of governments and private entities making it a resourceful means in strategic litigation.

• Over Four Decades of Data Protection: Unexplored History with Valuable Insights for the Future – Part 1 | OHRH
• Over Four Decades of Data Protection: Unexplored History with Valuable Insights for the Future – Part 2 | OHRH

A renewed focus on workers’ data rights and promising pathways

Employees are considered ‘vulnerable data subjects’ under EU data protection law due to the power dynamics underpinning employment relationships, which are absent in many other data processing contexts. Similarly, the Council of Europe noted that employees become a ‘captive population’ under constant surveiellance by new technologies. Advanced workplace monitoring and algorithmic management technologies pose significant risks not only to workers’ privacy and data protection rights but also to broader social and labour rights enshrined in international and national laws. In other words, regulating workers’ data rights is not only a matter of workplace privacy and data protection but also a means of safeguarding workers’ autonomy and human dignity, and ensuring decent working conditions‒ aspects that existing privacy and data protection laws fail to adequately address.

Recent years have seen a renewed focus on workers’ data rights, driven by technological advancements in AI and their risks, that have drawn considerable media and public attention. While policymakers are beginning to address these issues, and several regulatory measures are in development in many jurisdictions (see initiatives in the US, Australia, and Germany), they are often patchy and still in a nascent stage.

While celebrating this year’s pivotal moment of data protection/privacy day, we must also acknowledge what these laws left out. The evolution of employees’ personal data protection in the workplace demonstrates a persistent recognition across multiple jurisdictions of the need for tailored regulations. However, most calls and efforts to introduce workplace-focused data protection laws have been met with legislative inaction. Existing privacy and data protection laws failed workers in many aspects. Protecting workers’ data rights requires comprehensive legislation that is responsive to, and corresponds with, the risks new technologies pose to workers’ fundamental rights and freedoms. Such legislation should be informed by, and built on, labour law principles and requirements, rather than the individualistic and consumer-oriented approaches underpinning data protection/privacy laws.

The EU has provided a promising pathway by establishing a comprehensive framework for regulating monitoring and algorithmic management in platform-based work. There is also growing interest among EU stakeholders to expand these rules beyond platform work to all workplaces, which we welcome.

Happy Data Protection/Privacy Day, Workers😊

Significant Gaps in Current Law

The regulatory approaches of the US, Australia, and the EU offer unique insights and shared commonalities, effectively illustrating the gaps in existing laws concerning the regulation of workers’ data.

The US lacks a comprehensive federal privacy framework, instead relying on a patchwork of sectoral legislation. The privacy legal landscape in the US has been rapidly evolving in recent years. From 2023 to 2024 alone, more than six dozen federal privacy bills were introduced, most of which are sector-specific. The latest federal legislative effort is the ‘American Privacy Rights Act’ of 2024, a comprehensive bill which aims to afford Americans fundamental data privacy rights and eliminate the patchwork of state laws. However, even if adopted‒ an outcome which remains highly unlikely‒ the bill explicitly excludes ‘employee data’ from its scope. The US state privacy law landscape has also been evolving rapidly. Between 2018 and 2024 alone, nineteen US states have adopted comprehensive privacy laws, with more likely to follow. These comprehensive state privacy laws vary in their approaches, details, scope, and the matters they regulate. However, they share one commonality: with the exception of the California Consumer Privacy Act, all these laws explicitly exclude the processing of workers’ personal data from their scope of application.

We observe a similar pattern in Australia. Australia’s approach to workers’ data protection is complex, involving federal, State and Territory legislation with significant differences between public and private sector employees. The Privacy Act 1988, initially applicable only to government agencies and extended to the private sector in 2000, is the primary federal privacy legislation. However, private sector employees, comprising 84% of Australians in 2007, are not afforded the same rights and protections due to an exemption in the Privacy Act. This exemption means that private sector employers are not obliged to grant workers access to their personal data, can process it without consent, and are not accountable under the Privacy Act’s data breach notification scheme. Despite several inquiries and a comprehensive reform process, including a recommendation in the 2023 Privacy Act Review Report to extend enhanced protection to private sector employees, the reform bill introduced in September 2024 retained the exemption. Consequently, private sector employees are left without the rights and protections afforded to their public sector counterparts. This differential treatment remains a significant gap in Australian privacy law. The European Commission, criticising the employee data exemption rule, pointed out that the level of risk to individuals’ privacy rights depends on the nature, scale, and type of data processed rather than the size or type of the organisation handling it; thus, comprehensive data protection law should apply to all data processing activities.

The EU’s GDPR applies fully to the employment contexts in both the private and public sector, unlike its US and Australian counterparts. In fact, it has been crucial in challenging some of the most harmful workplace monitoring and algorithmic management practices. However, the GDPR has significant structural deficits in protecting workers’ data rights. Although it remains relevant to employment, the GDPR wasn’t designed with the unique features of labour relations in mind. It assumed that employment-related data processing would be regulated by separate rules. When recently asked if there was anything he regretted about the GDPR text in retrospect, Jan Philipp Albrecht, the rapporteur for the GDPR at the time, identified ‘employment’ as an area not fully regulated by the GDPR. The GDPR acknowledges the special nature of personal data processing in the employment context and grants Member States regulatory leeway under Article 88 to introduce more specific rules. However, research and court cases (CJEU, Case C-34/21 and national court, 1 ABR 14/22) show that Article 88 remains underutilised, or improperly used.

The lack of adequate protection of workers’ data rights under GDPR, US, and Australian privacy laws are attributed to different factors. The EU’s complex constitutional powers and diverse industrial relations traditions make harmonising workplace data protection challenging. Australia considers workers’ data rights a workplace relations (labour law) matter, while the US exemptions are often attributed to lobbying efforts. Consequently, workers’ data rights lack comprehensive protection under these jurisdictions’ omnibus data protection/privacy laws. Instead, a patchwork of Union/federal and state laws offer limited protections, some tailored to the employment context but limited in scope and the matters they regulate. For instance, at least 22 EU Member States have specific provisions (scattered in different legislation) regulating employee monitoring and surveillance to a limited extent. Similar fragmentation exists in the US and Australian laws. Labour legislation and collective agreements provide sometimes direct, indirect, or incidental protections. However, the overall protection of workers’ data rights in these jurisdictions remains inadequate, patchy, inconsistent, complex, and multi-layered, making it difficult to navigate.

This state of affairs highlights the need for standalone legislation specifically and comprehensively targeted at protecting personal data used for employment purposes and regulating employers’ workplace surveillance and algorithmic management practices.

See Part 3 of this blog here: Over Four Decades of Data Protection: Unexplored History with Valuable Insights for the Future – Part 3 | OHRH