Human rights - what do I need to know? (2008)

 

Human rights - what do I need to know?


Contents

1 What are my human rights?

2 How are human rights protected in Australia?

3 What are some of the human rights problems in Australia?

4 How can we improve human rights protections in Australia?

5 Should Australia have a Human Rights Act?

6 Where can I find more information about a Human Rights Act for Australia?


 


1 What are my human rights?

All Australians have human rights. Human rights are universal: they are for everyone, everywhere, everyday. Human rights are based on values such as freedom, equality and dignity and seek to protect our quality of life.

Your human rights include well known rights such as the right to:

  • a fair trial
  • vote
  • free speech
  • freedom from discrimination because of your sex, age, race or because you have a disability
  • protection from imprisonment for arbitrary reasons
  • protection from torture and cruel, inhuman or degrading treatment
  • education
  • health
  • protection from violence.

1.1 Where do human rights come from?

Human rights are not a recent invention. The principles of human rights can be traced back to ancient civilisations and are central to Christian, Buddhist, Confucian, Hindu, Islamic and Jewish teachings.

Human rights have been important parts of the development of nations such as the United States of America, France, and more recently South Africa.

The growth of totalitarian regimes in the 20th Century and the atrocities of World War II made the protection of human rights an international priority. The first attempt to develop a complete statement of human rights was made in 1948 in the Universal Declaration of Human Rights.

1.2 Where are my human rights written down?

Human rights are written down in international agreements called ‘conventions’ and ‘covenants’. These types of agreements are also called ‘treaties’.

Human rights can also be written down in other international documents such as ‘declarations’.

These treaties and declarations are made by representatives of national governments at the United Nations and reflect international agreement about the fundamental values that make up ‘human rights’.

1.3 How do countries agree to protect human rights?

Countries indicate their intention to become a ‘party’ to a new treaty by ‘signing’ the treaty. For countries like Australia, this is a first step in becoming bound by the treaty. Signing a treaty does not, however, automatically make it part of our law. Our Parliament has to pass legislation to make a human rights treaty part of Australian law.

The second step in becoming bound by a treaty is ‘ratification’ (also called ‘acceptance’, ‘approval’ or ‘confirmation’) which takes place once a country is ready to be bound by it. In Australia, for example, we have to pass legislation to make human rights treaties part of Australian law.

Treaties generally come into force upon ratification by a certain number of countries. Once a treaty is in force, a country that is bound by it must ensure that its laws comply with the terms of the treaty. Otherwise it will be in breach of international law.

Countries can also ‘accede’ to a treaty that is already in force. This has the same effect as signing and ratifying a treaty.

Declarations are not binding like treaties and do not require ‘ratification’. However, countries can indicate their support for them and agree to put them into practice. Declarations carry moral weight because they are adopted by the international community.

‘Optional protocols’ are documents that supplement conventions with additional obligations. As their name suggests, countries that have agreed to be bound by a convention can choose not to be bound by an optional protocol.

1.4 Which human rights treaties has Australia agreed to?

Australia has agreed to comply with the following major international human rights treaties:

Treaty
Ratified by Australia
International Labor Organisation Discrimination (Employment) Convention ILO 111
1973
International Convention on the Elimination of all forms of Racial Discrimination
1975
International Covenant on Economic, Social and Cultural Rights
1976
International Covenant on Civil and Political Rights
1980
International Convention on the Elimination of all forms of Discrimination against Women
1983
Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
1989
Convention on the Rights of the Child
1990
Convention on the Rights of Persons with Disabilities
2008

Australia has not signed the Convention on the Rights of Migrant Workers and their Families.

There are a number of other international agreements relating to human rights, which Australia has agreed to:

Treaty
Ratified by Australia
Convention on the Prevention and Punishment of the Crime of Genocide
1949
Convention Relating to the Status of Refugees
1954
Supplementary Convention on Slavery
1958
Convention relating to the Status of Stateless Persons
1973
Convention on the Reduction of Statelessness
1973
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty
1990
Optional Protocol to the International Covenant on Civil and Political Rights
1991
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict
2006
Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and pornography
2007
Optional Protocol to the Convention on the Elimination of Discrimination Against Women
2008

Australia is not yet a party to the following human rights treaties:

  • Optional Protocol to the Convention Against Torture and Cruel, Inhuman and Degrading Treatment or Punishment

  • Optional Protocol to the Convention on the Rights of Persons with Disabilities.

Australia has also supported a number of Declarations – in particular, the Universal Declaration of Human Rights. Australia has also recently indicated that it will support the Declaration on the Rights of Indigenous Peoples.

1.5 Who is responsible for making sure that my rights are respected?

We all have the responsibility to respect each other’s rights.

However, the federal government has the overall legal responsibility for making sure that your human rights are protected. This is because it is the federal government that enters into international agreements to protect human rights.

Australia has a federal system of government. This means that state governments are responsible for many areas of life that are relevant to human rights. For example, state governments are responsible for health and education, and land matters. The laws and actions of state and territory governments can put Australia in breach of its human rights obligations. However, the federal Government can override state laws to protect against breaches of human rights.

1.6 Who can I complain to if I think my human rights have been breached?

There are a range of places that you can go if you think that your human rights have been breached.

(a) The Australian Human Rights Commission

The Commission can investigate complaints of discrimination, harassment and bullying based on a person’s:

  • sex, including pregnancy, marital status, family responsibilities and sexual harassment

  • disability, including temporary and permanent disabilities; physical, intellectual, sensory, psychiatric disabilities, diseases or illnesses; medical conditions; work related injuries; past, present and future disabilities; and association with a person with a disability

  • race, including colour, descent, national or ethnic origin, immigrant status and racial hatred

  • age, including young people and older people

  • (in employment only) sexual preference, criminal record, trade union activity, political opinion, religion or social origin

The Commission can also investigate complaints about alleged breaches of human rights (including the rights protected in the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child) against the Commonwealth and its agencies.

For more information about the Commission’s complaint handling powers, click here.

(b) State and Territory human rights agencies

Each state and territory has a human rights agency that can also receive complaints about human rights breaches. For more information click on the links below:

(c) International bodies

If a person in Australia has exhausted all options for having their complaint heard, and has been unable to obtain a remedy for a human rights breach, he or she can sometimes take their complaint to a United Nations committee.

Some examples of Australian cases taken to United Nations Committees include:

In 1991 Mr Toonen challenged Tasmanian laws that criminalised consensual homosexual acts, even when they occurred in a private home. The Human Rights Committee found that they breached the right to privacy and the right to non-discrimination. The Committee’s recommendation that the laws be repealed was implemented through the introduction of the Human Rights (Sexual Conduct) Act 1994 (Cth).

A lawyer in the NT appealed against a conviction for contempt of court. There was an unexplained delay of almost two years between the court’s hearing of his case and its dismissal of the proceedings. The Human Rights Committee found that there had been a breach of article 14, paragraph 3(c), which provides for the right to a fair hearing.

Mr Young and Mr C were in a relationship for 38-years. Mr C was a war veteran and when he passed away Mr Young applied for a veteran’s pension under the Veterans’ Entitlement Act. The Department of Veterans’ Affairs denied his application on the basis that the legislation defined ‘dependant’ to exclude a member of same-sex couple.

The Committee found that the legislation operated to discriminate against same-sex couples in breach of article 26 of the ICCPR.

An Italian national who had married an Australian woman and with whom he had four children was subject to extradition proceedings. He had previously served two years in an Italian prison and was denied a spouse visa on the basis that he was not of ‘good character’. His children were all born in Australia and his extended family were all resident in Australia. He was placed in immigration detention pending deportation and was thus faced with the choice of being sent to Italy, leaving his family behind in Australia, or of relocating his family, who had known no other home that Australia, to Italy.

The Human Rights Committee found that Australia had breached, inter alia, article 17 of the ICCPR, which prohibits arbitrary or unlawful interference with family life; and article 24 which relates to the special protection of minors.

The Human Rights Committee found that the conditions of the detention of an Aboriginal boy with a mild mental disability amounted to violations of article 10, requiring the humane treatment of persons deprived of their liberty, and article 24, relating to the special protection of children.

Mr Coleman was fined for breaching a Queensland by-law which prohibited giving a public address at a particular pedestrian mall without a permit. He failed to pay the fine and was imprisoned. The Human Rights Committee found that Australia had violated Article 19 paragraph 2 of the ICCPR, the right to freedom of expression.

The Human Rights Committee found that Australia had breached ICCPR article 14, paragraph 1, which guarantees the right to a fair hearing, including that all persons shall be equal before courts and tribunals. Dudko was an unrepresented defendant in detention and Counsel for the State took part in an appeal before the High Court in her absence.

After hearing complaints, international committees issue their ‘views’ and may recommend remedies for any breach of human rights. These are not legally binding.

1.7 What is the International Bill of Rights?

The United Nations was formed after the end of World War II. One of the purposes of the United Nations is to promote and encourage respect for human rights through international co-operation.

Shortly after the United Nations was created, the member countries started developing a series of conventions and declarations to articulate universal human rights.

Three of those declarations and conventions make up the International Bill of Rights:

(a) Universal Declaration of Human Rights

In 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights. This was the first time that countries agreed on a comprehensive statement of inalienable human rights.

Australia played a significant role in the development of the Universal Declaration through the efforts of Dr HV Evatt, who was President of the General Assembly of the United Nations when the Universal Declaration was passed.

The Universal Declaration is not a treaty, so it does not directly create legal obligations for States. However, the Declaration has had a profound influence on the development of international human rights law, and it is globally accepted as a statement of fundamental rights and freedoms enjoyed by all human beings. Many countries have included its provisions in their basic laws or constitutions.

Those who drafted the Declaration were profoundly aware of the extreme human rights violations that had been perpetrated during World War II and the preceding years. So, the Declaration emphasised the inherent dignity of every person and noted that the recognition of the equal and inalienable rights of all members of the human family is the basis for freedom, justice and peace. The Universal Declaration is a powerful and eloquent statement of fundamental values and principles. It recognises that:

All human beings are born free and equal in dignity and rights. [Article 1, Universal Declaration]

The rights set out in the Universal Declaration cover civil and political rights (which protect individuals from government abuse of power) as well as economic, social and cultural rights (the basis for adequate standards of living that will ensure human dignity).

The rights in the Declaration include:

  • the right to life, liberty and personal security

  • freedom from torture and degrading treatment

  • the right to seek and gain protection in other countries from persecution

  • the right to equality before the law

  • the right to a fair trial

  • the right to privacy

  • freedom of belief and religion

  • freedom of opinion

  • freedom of peaceful assembly and association

  • the right to participate in government

  • the right to social security

  • the right to work

  • the right to adequate standards of living

  • the right to education.

In the Declaration the United Nations called on governments and individuals and other organs of society to promote respect for human rights through education and government policies.

(b) The International Covenants

On the same day that it adopted the Universal Declaration of Human Rights, the United Nations General Assembly asked its Commission on Human Rights to draft a Covenant on Human Rights, which could become a binding treaty. After six years of drafting and debate, in 1952 the General Assembly requested that the Commission on Human Rights draft two Covenants rather than one. The two Covenants, the ICCPR and the ICESCR, were opened for signature in 1966 and entered into force in 1976.

(c) International Covenant on Civil and Political Rights 1966 (ICCPR)

Australia ratified the ICCPR in 1980.

Civil and political rights are generally about participating in the political process and protection of people from abuses of political power. Civil and political rights include:

  • the right to political participation

  • the right to freedom of conscience and religion

  • the right to freedom of expression

  • the right to freedom of association

  • the right to be free from torture

  • the right to a fair trial

  • the right not to be held in slavery.

Some rights, such as the right not to be held in slavery and the right to be free from torture are absolute. They can not be infringed in any circumstances.

However, most civil and political rights are not absolute. They can be limited if there is a good reason to do so. This is described as making them subject to reasonable limitations which are created for a legitimate purpose.

For example, it may be legitimate to limit a right in order to protect national security, public order or the general welfare of a democratic society.

The ICCPR has two Optional Protocols, both of which Australia is a party to:

The ICCPR does not give rise to enforceable rights under Australian law, but it does form the basis for a range of monitoring, education and reporting functions of the Australian Human Rights Commission. The Commission can investigate complaints of breaches of human rights by the federal government (or people acting on its behalf) and make recommendations to remedy any breach (although these are not enforceable). The Commission can also review laws to see if they are compatible with human rights and recommend to the Parliament that they be changed. Click here for further information about the Commission.

(d) International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)

Australia ratified the ICESCR in 1976.

The Covenant protects a range of economic, social and cultural rights including:

  • the right to an adequate standard of living

  • the right to education

  • the right to fair wages

  • the right to safe working conditions

  • the right to health care.

States are required to take steps to achieve the ‘progressive realisation’ of the rights in the ICESCR. For example, it is assumed that where States have inadequate resources to ensure that free education is provided to all school children, they will take concrete steps to work towards achieving this goal.

The ICESCR does not form part of Australia’s domestic law.

However, the Aboriginal and Torres Strait Islander Social Justice Commissioner has specific statutory functions related to protecting and promoting the human rights of Aboriginal persons and Torres Strait Islanders. In the performance of these functions the Social Justice Commissioner must have regard to a number of international declarations and conventions, including the ICESCR.

On 10 December 2008, an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights which would allow individuals to complain to the United Nations Committee on Economic, Social and Cultural Rights, will be presented to the United Nations General Assembly.


 


2 How are human rights protected in Australia?

Some human rights are protected in Australian law, but many are not.

Many Australians do not have a good understanding of what their rights are, and how their rights are protected. This is partly because protections of human rights in Australia are ad hoc and incomplete.

2.1 The Australian Constitution

Many people believe that the Australian Constitution contains human rights protections. However, the reality is that our Constitution protects very few rights.

It does not protect fundamental rights and freedoms such as the right to life, freedom from torture, the right to equality before the law, or the right to liberty and security of the person.

It does not protect freedom from discrimination on the basis of race or sex.

And although the High Court has found that Constitution contains an implied right to freedom of political communication, this does not extend to non-political communication.

Rights that are protected in the Constitution include:

  • The right to vote.

  • The requirement that a compulsory acquisition of property by the Commonwealth must be on just terms.

  • The right to a trial by jury for a federal indictable offence.

  • The requirement that the Commonwealth must respect freedom of religion. It cannot make a law to establish a religion, impose a religious observance or prohibit the free exercise of any religion.

  • The requirement that Australian law must not discriminate against a person because of their state of residence.

  • The right to challenge decisions of the Commonwealth government in the High Court.

  • Implied rights (not expressly stated in the Constitution), for example freedom of political communication, or the freedom to talk about our government so that we can participate effectively in elections.

2.2 National legislation

As explained earlier, to have legal force in Australia, international human rights treaties have to be implemented through domestic legislation.

In some cases, an international treaty is largely implemented through a single piece of legislation. This is the case with the Racial Discrimination Act 1975 (Cth) (which implements the International Convention on the Elimination of all Forms of Racial Discrimination) and the Sex Discrimination Act 1984 (Cth) (which implements the Convention on the Elimination of all Forms of Discrimination Against Women).

In other cases, a treaty is implemented through a range of different laws. For example, there are hundreds of pieces of legislation around Australia that implement the Convention on the Rights of the Child.

The Australian Human Rights Commission is set up by the Human Rights and Equal Opportunity Act 1986 (Cth) and plays an important role in protecting human rights.

2.3 State legislation

All States and Territories have anti-discrimination legislation and human rights agencies. More information can be found through the links below:

2.4 Common law

The common law is the body of law made up of precedents from cases decided in the courts.

Some important human rights protections are found in the common law. For example:

  • the right against self-incrimination

  • the right to sue for false imprisonment

  • presumption of innocence in criminal trials

  • presumption that the standard of proof in criminal cases is that of beyond reasonable doubt.

Another example of common law recognition of rights is the Mabo case (1992), which recognised Indigenous native title rights in Australia.

However, governments are able to pass new legislation to override the common law. This means that the human rights reflected in the common law lack adequate protection.

2.5 How does the Australian Human Rights Commission protect and promote human rights?

(a) What is the Commission’s vision and mission?

The Australian Human Rights Commission is Australia’s national human rights institution. We have important responsibilities to promote and protect human rights. This is outlined in our new vision and mission. Click here to see the Commission’s Strategic Plan for 2008-2011.

Our vision:

Human rights: everyone, everywhere, everyday

Our mission:

Leading the promotion and protection of human rights in Australia by:

  • making human rights values part of everyday life and language;
  • empowering all people to understand and exercise their human rights;
  • working with individuals, community, business and government to inspire action;
  • keeping government accountable to national and international human rights standards;
  • securing an Australian Human Rights Act.

We do this by:

  • listening, learning, communicating and educating;
  • being open, expert, committed and impartial;
  • fostering a collaborative, diverse, flexible, respectful and innovative workplace.

Our strategic goals:

To achieve our vision and mission we will integrate the following five strategic goals into our work:

  1. Leadership: We exercise a leadership role in human rights in Australia by being visible, courageous and influential on human rights issues.
  2. Empowerment: We support and inspire others to engage in meaningful activity on human rights.
  3. Education: We assist all people in Australia to understand and exercise their rights and to respect the rights of others.
  4. Monitoring: We hold individuals, organisations and government responsible for their human rights obligations.
  5. Innovation: We have a collaborative, innovative and supportive work culture that enhances the quality and impact of our work.

For more information about the Australian Human Rights Commission, click here.

(b) What does the Australian Human Rights Commission do?

The Commission was established in 1986 under the Human Rights and Equal Opportunity Commission Act. Under that legislation, the Commission’s statutory responsibilities include:

  • education and public awareness

  • discrimination and human rights complaints

  • human rights compliance

  • policy and legislative development.

We do this through:

  • handling complaints of discrimination or breaches of human rights under federal laws

  • holding public inquiries into human rights issues of national importance

  • developing human rights resources and education materials for schools, the media, workplaces and the community

  • providing independent legal advice to assist courts in cases that involve human rights principles

  • providing advice and submissions to parliaments and governments to develop laws, policies and programs

  • undertaking and coordinating research into human rights and discrimination issues.

 


3 What are some of the human rights problems in Australia?

In Australia many people think that human rights are only relevant to events that happen overseas, for example political dictatorships, genocide, torture, arbitrary detention or extra-judicial execution.

However, human rights violations of one kind or another occur in all countries, including Australia.

There are numerous examples of human rights breaches in Australia. The following are examples of situations where Australia’s federal government has failed to adequately respect human rights:

  • asylum seekers – including children – have been detained in immigration detention centres indefinitely and for prolonged periods of time

  • Australian citizens and others entitled to live in Australia have been illegally detained or deported

  • anti-terrorism laws have infringed fundamental human rights without sufficient consideration of whether they are necessary

  • sedition laws have limited freedom of speech.

Many cases concerning human rights issues come before our courts. The new President of the Australian Human Rights Commission, Catherine Branson QC, recently reflected on cases she heard as a Federal Court judge that reminded her that human rights remain a live issue in Australia.

One example was about the right of Commonwealth public servants to exercise their right to freedom of expression. In their capacity as private citizens these public servants wanted to participate in the day of action protesting proposed changes to workplace laws – a classic example of freedom of association and expression. Yet senior public officials thought it was appropriate to restrict their capacity to take the recreation leave or ‘flex’ leave to which they were entitled.

Another case, now known as the ‘annoying laws’ case, was about NSW regulations giving police the power to control the behaviour of people who might annoy the Pope and other Catholics who were in Sydney for the week-long World Youth Day celebrations. The regulation clearly restricted the right of people wanting to express their views about the attitude of the Catholic Church to sex before marriage, contraception, abortion and gay and lesbian relationships.

A third case was about choosing an appropriate aged care facility for an elderly man who had migrated to Australia from China late in his life. The decision-maker did not think it important to place him in a home that could provide the Chinese food that he had eaten all his life or a home that was close enough for his wife to travel and take him his food.

The President concluded:

My experiences as a judge left me persuaded, as they did my predecessor the Hon. John von Doussa QC, that in Australia we have legislatures that are insufficiently rights-conscious and bureaucracies that are insufficiently rights-sensitive. I don’t mean to suggest that our government is on a mission to breach human rights principles. But I most certainly mean to suggest that, currently, human rights is hardly a flicker in the eye of most law-makers and decision-makers. That has to change.

Two of the most startling examples of human rights breaches in recent years are explored in more detailed below:

  • breaches of the rights of Indigenous Australians

  • breaches of the right not to be arbitrarily detained.

3.1 The rights of Indigenous Australians

Over the last few years we have seen some alarming examples of discrimination against Aboriginal people. Most recently, laws have been passed that suspend protections of the Racial Discrimination Act. These include:

  • the Wik ten point plan amendments to the Native Title Act and

  • the Northern Territory Emergency Response (NT Intervention) legislation.

Governments upholding human rights are required to take measures to protect children from sexual abuse and family violence. But this can be achieved without discrimination and without infringing peoples’ other human rights.

The Northern Territory Emergency Response introduced measures to address child sexual abuse and family violence in 73 prescribed Indigenous communities in the Northern Territory in 2007.

However, we are concerned that these measures are discriminatory and do not protect people’s human rights:

  • suspending the application of the Racial Discrimination Act and allowing officials to act in a racially discriminatory way

  • controlling how a person spends their money, through income management measures, a significant interference with the way a person manages their life and of their right to privacy.

  • applying parts of the social security legislation retrospectively

  • excluding some aspects of social security administrative decisions from review

  • acquiring property without just terms compensation

A federal Human Rights Act would ensure that human rights issues are thoroughly and carefully considered when laws are made and policy is developed. Parliaments would have to consider how laws would effect people’s human rights.

It may also give Indigenous peoples a means of formally bringing potentially discriminatory laws to government’s attention before they are enacted and before the harm is done.

Click here to read more about what the Australian Human Rights Commission has said about the Northern Territory Emergency Response.

3.2 The right not to be arbitrarily detained

Since 1992 Australia has had a mandatory immigration detention law which requires that anyone who arrives in Australia without a valid visa must be detained. This law breaches fundamental human rights, including the right not to be subjected to arbitrary detention.

The mandatory detention laws meant that children were kept in immigration detention, in some cases for more than five years. While children are no longer held in immigration detention centres, the mandatory detention system remains in place, and children are still held in other immigration detention facilities.

In the report of its National Inquiry into Children in Immigration Detention, A last resort?, the Commission found that Australia’s immigration detention laws are inconsistent with the Convention on the Rights of the Child. This requires that children should only be detained as a last resort and for the shortest appropriate period of time.

A last resort? contains hundreds of pages documenting the harm that was caused to children who were detained for long periods of time. This is just one story.

Story: A young boy spent almost two years in Woomera Detention Centre, from March 2000. He witnessed riots, fires, hunger strikes and self-harm. He developed nightmares. He was often unable to eat or sleep. He was diagnosed with severe post-traumatic stress disorder. Psychiatrists and psychologists repeatedly advised the immigration department to remove the family from detention. In January 2002 the family was finally released on bridging visas and later that year recognised as refugees.

There are also many adults who have been detained for extended periods of time. Here is one example:

Story: Mr Ahmed Al-Kateb arrived in Australia by boat without a visa. After two years in detention he asked to be removed from Australia. He was born in Kuwait of parents of Palestinian origin – he was effectively stateless. The Commonwealth tried unsuccessfully to remove him to Egypt, Jordan, Kuwait and Syria as well as to the Palestinian territories. When Mr Al-Kateb applied to the courts for his release, the Australian High Court found that Australian law permits indefinite detention.

Indefinite detention defies common sense and contravenes human rights standards.

If immigration detention laws and policies were developed with human rights in mind, these situations might never have eventuated.

The Australian Government should be required to consider whether immigration laws comply with human rights standards.

 


4 How can we improve human rights protections in Australia?

There are a range of options for improving human rights protections in Australia.

These include:

  • harmonising state, territory and federal anti-discrimination laws

  • ensuring a parliamentary standing committee reviews and reports on all legislation

  • introducing a federal Equality Act

  • ensuring that there is always an effective remedy if a person’s human rights are breached

  • introducing a federal Human Rights Act

  • implementing a comprehensive National Action Plan on Human Rights.

4.1 Australia should adopt a national human rights law

The Australian Human Rights Commission believes that Australia should adopt a national human rights law (commonly called a charter of rights).

A charter of rights is a document that sets out the rights and freedoms of all individuals in a country or state. The most common forms of a Charter of Rights are:

  • a statutory charter of rights (an ordinary Act of Parliament) or

  • a constitutional or entrenched charter of rights (included in a country’s constitution).

The Commission believes that Australia should adopt a statutory charter – a Human Rights Act.

Having a charter of rights does not mean that a government will automatically respect human rights. However, a charter of rights:

  • is an important statement of the rights that should be protected

  • means that a government has to consider human rights questions when it makes laws and develops policy

  • means that people whose rights are breached by a federal government authority will have a remedy.

Over the past decade some community groups, academics, politicians and individuals have increasingly argued that Australia should adopt a federal Human Rights Act to ensure that the rights and freedoms of all Australians are adequately protected under Australian law.

There have been ongoing debates regarding the adoption of a federal Human Rights Act. The national consultation into human rights protections is an important opportunity for Australian public to consider and discuss the matter.

4.2 Australians should have a say about how they want their rights to be protected

Human rights issues affect all of us in our daily lives. We should all have an opportunity to have a say about how we want our human rights to be protected.

The national consultation into human rights protections is a unique opportunity for all people living in Australia (citizens and residents) to:

  • learn more about how human rights impact on everyday life

  • express which human rights are important to them

  • have their say about how they want their human rights to be protected.

The Commission will contribute to the national consultation to ensure that any changes coming out of the consultation are compatible with Australia’s international human rights obligations.

The Commission will:

  • maintain a website about options for enhanced rights protections in Australia, including a federal Human Rights Act

  • assist community organisations and individuals to take part in the consultation

  • encourage children and young people to participate in the consultation

  • hold a series of seminars and debates about a federal Human Rights Act

  • make a submission to the national consultation.

 


5 Should Australia have a Human Rights Act?

The Commission supports the adoption of a statutory charter of rights (a Human Rights Act). A Human Rights Act would provide a statement of the rights that should be protected for all people in Australia. It would also set out how the rights should be protected. It would give particular responsibilities for protecting rights to the Parliament, the executive and the courts.

Over time, a Human Rights Act would assist in creating a human rights culture in Australia, especially if it was accompanied by a comprehensive education campaign. Politicians, public officials and judges would be better educated about Australia’s international human rights obligations, and would become familiar with taking human rights considerations into account in their everyday decision-making processes. Members of the Australian community would be more aware of their own human rights and the rights of others.

Depending on its specific form, a federal Human Rights Act could do some or all of the following:

  • Ensure that all new federal laws are put through a ‘human rights test’ by:

    • requiring that each bill introduced into federal Parliament be accompanied by a human rights compatibility statement

    • requiring Parliament to scrutinise each bill to ensure its compatibility with the Human Rights Act

    • requiring Parliament to publicly explain the justification if it enacts a law that is inconsistent with the Human Rights Act.

  • Ensure that federal government policies take the human rights in the Human Rights Act into account, by requiring that all cabinet submissions be accompanied by a Human Rights Impact Assessment.

  • Ensure that federal public authorities respect the human rights in the Human Rights Act by:

    • requiring them to take the rights into account in decision-making and policy-setting processes

    • requiring them to prepare internal Human Rights Action Plans

    • requiring them to report annually on compliance with the Human Rights Act.

  • Provide for the review of any federal law found to be incompatible with the Human Rights Act by:

    • giving federal courts the power to issue a declaration of incompatibility

    • requiring that all declarations be tabled in federal Parliament

    • requiring Parliament to consider whether the law in question should be changed.

  • Ensure that federal courts and tribunals interpret legislation in a manner that is consistent with the human rights in the Human Rights Act.

  • Provide individuals whose human rights under the Human Rights Act have been breached with access to remedies, which might include:

    • internal complaint handling mechanisms within federal public authorities

    • conciliation of complaints regarding human rights breaches

    • legal remedies such as an injunction or declaration

    • a cause of action in the courts

    • the right to seek reparations, including compensation where necessary and appropriate.

5.1 What other countries have legislation protecting human rights?

Many countries around the world have a charter of rights or a bill of rights. While Australia has a number of other mechanisms in place that assist in promoting and protecting human rights, Australia is the only Western democratic nation that does not have a charter or bill of rights. Examples of other countries with a national charter or bill of rights include the following:

(a) How do these charters improve respect for human rights?

The impact of a national human rights law like a charter of rights on respect for human rights can be seen in the following examples from the United Kingdom.

Story: A disabled woman was unable to leave her bed. Her occupational therapy department told her she needed a special bed so that carers could give her bed baths. But her request for a double bed so that she could share with her husband was refused even though she offered to pay any extra cost involved. After an 18 month stalemate she invoked the Human Rights Act, in particular her right to respect for private and family life. The authority agreed to pay for the new bed in full.

Story: A husband and wife had lived together for over 65 years. He was unable to walk unaided and relied on his wife to help him move around. She was blind and used her husband as her eyes. They were separated after he fell ill and was moved into an aged care home. She asked to come with him but was told by the local authority that she did not fit the criteria. She said: ‘We have never been separated in all our years and for it to happen now, when we need each other so much, is so upsetting. I am lost without him’. After a campaign arguing that the local authority had breached the couple’s right to respect for family life, the decision was reversed and the wife was able to join her husband at the aged care home.

These stories show that developing a human rights culture in public authorities can be an important impact of a legislation protecting human rights.

5.2 Is there any legislation protecting human rights in Australia already?

Victoria and the Australian Capital Territory (ACT) have each adopted a legislation protecting human rights. Other states are currently considering adopting similar legislation.

The Australian Capital Territory adopted a statutory charter of rights, the Human Rights Act 2004. Click here to read the charter.

Victoria adopted a statutory charter of rights, the Charter of Human Rights and Responsibilities Act 2006. Click here to read the charter.

In early 2007, the Western Australian Attorney General proposed a state Human Rights Act. Community consultations took place during the year, and in November 2007 the consultation committee presented a report to the Attorney General recommending the adoption of a statutory charter of rights for WA. Click here to read the committee’s report.

In 2006, the Tasmanian Government initiated a community consultation process, to be conducted by the Tasmanian Law Reform Institute. A final report was issued in October 2007, recommending the adoption of a statutory charter of rights for Tasmania. Click here to read the Institute’s recommendations.

In New South Wales, there is ongoing debate regarding the adoption of a state charter of rights. While there is no commitment from the NSW government, a community-led campaign is calling for the establishment of a public consultation process to consider whether NSW should adopt a charter of rights, and if so, what it should include. Click here to read about the campaign.

In 2007, the Northern Territory Statehood Steering Committee released a community discussion paper, ‘Constitutional Paths to Statehood’ addressing, among other issues, the inclusion of a bill of rights in a future Northern Territory Constitution. Click here to read the discussion paper.

(a) How do the ACT and Victorian human rights laws work?

The ACT Human Rights Act and the Victorian Charter of Human Rights and Responsibilities are both statutory charters of rights, and operate in similar ways. The primary aim of both charters is to ensure that human rights are taken into account during governmental processes including law-making, policy-setting and decision-making.

The impact of the state and territory charters is described below, using the Victorian charter as an example.

The Victorian charter was adopted by the Victorian Parliament in 2006, and came into full force in Victoria on 1 January 2008. The charter applies to the state Parliament, state courts and tribunals, and state public authorities. While the Victorian public sector is required to comply with the charter, the federal public sector is not.

The impacts of the Victorian charter on the state Parliament, executive government, courts, individuals and corporations are briefly outlined below. It should be noted that the Victorian charter is only one of many examples around the world of what a charter of rights might look like and how it might operate.

(i) What is the impact of the Victorian charter on the Parliament?

The Victorian Parliament must consider the rights contained in the charter when adopting legislation. All bills passing through the Parliament must be scrutinised against the human rights standards contained in the charter. If the Parliament decides to adopt a bill that infringes particular charter rights, it must explain the exceptional circumstances that justify why it is necessary to infringe those rights.

(ii) What is the impact of the Victorian charter on the executive government?

Public officials and state government departments (including the Victorian Police and local councils) must observe the rights in the charter when setting policies and providing services. They must act in a way that is compatible with the charter, and take the charter rights into proper consideration when making decisions.

(iii) What is the impact of the Victorian charter on the courts?

All state courts and tribunals must interpret and apply legislation in a way that is consistent with the charter rights, as far as this is possible. If a state law is found to be inconsistent with charter rights, the Victorian Supreme Court can decide to issue a declaration of incompatibility for that law. This does not invalidate the law, but it does require the state Parliament to review and reconsider it.

(iv) What is the impact of the Victorian charter on individuals?

Individuals in Victoria (other than public officials) are not required to comply with the charter.

All individuals in Victoria are entitled to enjoy the human rights contained in the charter. If a person believes that his or her rights have been breached they can seek certain legal remedies, such as a declaration that a public authority has acted incompatibly with the charter rights, or an injunction to stop a public authority from taking further action that is incompatible with the charter rights.

The charter does not give a person the right to take legal action or to seek monetary compensation just because they believe one of their rights under the charter has been breached. However, if a person takes legal action based on other grounds, during that case they can also make arguments based on the charter.

(v) What is the impact of the Victorian charter on corporations?

Corporations are not entitled to any of the human rights included in the charter – only people have these rights.

In general, the charter does not apply to corporations. However, if a corporation is a ‘public authority’ it is required to comply with the charter, and to give the charter rights proper consideration when making decisions. Under the charter, a corporation can be considered a ‘public authority’ if it is established by law and it exercises public functions, or if it is a private corporation which exercises public functions on behalf of the state or a public authority.

For further information on the content and impact of the Victorian charter, click here.

For further information on the content and impact of the ACT charter, click here.

5.3 What difference would a federal Human Rights Act make?

A federal Human Rights Act would significantly improve the protection of human rights in Australia. It would:

  • make the Parliament consider how new laws impact on people’s rights

  • make the Executive government consider how to address human rights issues when it develops policy

  • make courts consider human rights when interpreting legislation

  • make public servants consider human rights when making decisions and delivering services

  • provide enforceable remedies if a federal government authority breaches human rights

  • contribute to a human rights culture in Australia.

(a) Do Australians want a Human Rights Act?

Where community level consultation processes have been undertaken in Australian states and territories to date, there has been overwhelming support for increased human rights protections through a Human Rights Act.

Research by Amnesty International Australia in 2006 found that 95% of people surveyed rated their rights as ‘important’. More than 60% incorrectly thought that Australia already had a charter or bill of rights in place.

(b) Why a ‘statutory’ charter of rights?

The Commission believes that the best way to ensure greater protection of human rights in Australia is through a statutory charter of rights (a Human Rights Act). Such a law would be able to operate within our existing system of government without altering the existing balance between the Parliament and the courts.

If a charter of rights is contained in an ordinary piece of legislation, Parliament can change it if necessary. Parliament can also decide that there might be some instances where the Human Rights Act should not apply. This is what is known as ‘parliamentary sovereignty’ – the power to make and change laws.

Some people argue that because it is an ordinary piece of legislation, a Human Rights Act would not provide strong enough protection for human rights. They say that embedding rights in the constitution would provide stronger protections. However, others argue that placing rights in an ordinary piece of legislation is necessary to preserve parliamentary sovereignty, our existing system of law and government and greater flexibility for changing circumstances.

The Commonwealth government has a responsibility to protect the human rights of all Australians. A Human Rights Act should make sure that human rights issues are always considered when laws are made and policy is developed. It would be able to operate effectively within our existing system of law and government.

(c) Does the Commission support constitutional protection of human rights?

The Commission believes that before we ask the Australian people whether our Constitution should be changed to protect human rights, we need to build a stronger understanding of human rights in Australia.

The Parliament needs to think about human rights when it makes laws. The Executive government needs to think about human rights when it develops policies. Public servants need to consider human rights when they provide services to the public, and when they make decisions affecting all of us. And courts need to be able to decide whether the treatment of people in Australia is in accordance with our human rights laws. A Human Rights Act can achieve all of these goals.

Putting human rights in our Constitution would give courts an additional power to decide whether or not the Parliament’s laws are valid or invalid. The Commission believes that Australia should build a stronger human rights culture before deciding on whether it is appropriate to take this step. This could be achieved through a Human Rights Act.

(d) What role should a federal Human Rights Act give courts?

It is appropriate for our courts to have a role in the better protection of human rights.

Some people argue that a federal Human Rights Act would give too much power to courts. This concern is based on the belief that Parliament should have the power to make and unmake laws and that giving judges the power to ‘strike down’ laws is fundamentally undemocratic.

  • The Commission does not agree that a Human Rights Act would give courts too much power. A Human Rights Act of rights would not give courts the power to ‘strike down’ legislation. Courts will be able to interpret laws to be consistent with human rights, or to declare that a law is incompatible with human rights. If this happens the Parliament will have to reconsider the law. Courts will not be able to invalidate laws. The final authority to make laws for Australia will stay with Parliament.

Some people think that courts should be very careful in taking human rights issues into account when they interpret laws.

  • To some extent, Australian courts already consider human rights issues when they interpret laws. Courts should be able to rely on human rights in their interpretation, as long as it is consistent with the purpose of the legislation.

Some people argue that taking human rights issues into account is particularly difficult as human rights often compete with each other. For example, the right to privacy may compete with the right to freedom of speech.

  • Dealing with complex legal issues is the ordinary business of the courts. The vast majority of judicial decisions involve balancing competing issues and social concerns.

5.4 What rights should a federal Human Rights Act include?

There are a broad range of human rights that might be included in a federal Human Rights Act, if one were adopted. These could potentially include the following:

  • civil and political rights, such as the right to vote and the right to a fair trial

  • economic, social and cultural rights, such as the right to education and the right to health

  • rights of children and young people

  • rights of women

  • rights of Indigenous peoples

  • rights of persons with disabilities

  • rights of minority groups, such as ethnic, religious or linguistic minorities

The Commission believes that a federal Human Rights Act should protect all of the rights set out in the international human rights treaties that Australia is a party to. These treaties include the:

Further, consideration should be given to the protection rights contained in declarations that Australia either supports or has indicated that it intends to support:

There should be a mechanism to include in a federal Human Rights Act further conventions or declarations to which Australia becomes a party.

(a) Should a federal Human Rights Act protect economic, social and cultural rights?

The Commission believes that a federal Human Rights Act should include economic, social and cultural rights, as well as civil and political rights. Internationally, it is widely accepted that human rights – including civil, political, economic, social and cultural rights – are indivisible and interdependent.

Some people oppose the inclusion of economic, social and cultural rights in a Human Rights Act. They argue that this might require judges to make decisions regarding the allocation of budgetary resources, which is ordinarily a matter for the government.

However, economic, social and cultural rights are not, by their nature, inappropriate for consideration by judges. Various foreign and international courts have decided cases regarding these types of rights. While such decisions might on some occasions have budgetary implications, this is nothing unusual. The outcomes of many court cases already have this effect. An order for a re-trial where there has been procedural unfairness is an example. Some aspects of our justice system are considered to be so fundamental that the cost involved is an important, but not sole, consideration in administering them

Further, it should be noted that economic, social and cultural rights contain limitations, including being subject to the availability of resources. Under the International Covenant on Economic, Social and Cultural Rights, the Australian Government is obliged to take steps, to the maximum of its available resources, to progressively achieve the realisation of the rights contained in the Covenant.


5.5 Responses to the common arguments against a Human Rights Act

Whether Australia should have a Human Rights Act is a contentious area of debate. Following is a summary of the most common arguments against a Human Rights Act and the Commission’s response. For more information about arguments for and against a Human Rights Act, see the Gilbert + Tobin Centre of Public Law.

(a) There are already sufficient human rights protections in Australia

In theory, all Australians are entitled to enjoy the rights and freedoms contained in the international human rights treaties ratified by Australia. However, in practice, many of the international human rights standards agreed to by the Australian government cannot be enforced through the domestic legal system because they have not been adequately incorporated into Australian law. This means that, in many cases, people whose human rights have been breached are left without a legal remedy.

The Australian Constitution offers very limited protections for human rights. Contrary to what most Australians might believe, the Constitution does not protect fundamental rights and freedoms such as the right to life, freedom from torture, the right to equality before the law, or the right to liberty and security of the person.

While there are a range of state and federal anti-discrimination laws in Australia, these do not provide comprehensive protection from discrimination and they fail to fully implement fully Australia’s obligations under international human rights treaties. The laws only protect against discrimination on certain grounds, and they only apply to discrimination in the context of certain areas of public life.

(b) The best rights protection in Australia is our democratic system – we should trust in our politicians and vote them out if necessary

Australia is a robust democracy. However, there are numerous examples where laws and policies have shown insufficient regard for human rights standards. For example, mandatory immigration detention laws, counter-terrorism laws, and the Northern Territory Emergency Response, to name just a few.

This suggests that we cannot always trust our politicians to pay sufficient regard to the protection of the human rights of all people in Australia. Further, while our capacity to vote our politicians out of power is a fundamental aspect of our democracy; the majority view is not always sympathetic to international human rights standards. And the majority view does not always protect the rights of minorities.

A federal Human Rights Act would lead to more open and transparent government. Our government would be required to consider human rights standards when making law and policy and to publicly justify actions that do not comply with the rights protected by the Human Rights Act.

A federal Human Rights Act will lead to better government in Australia.

(c) The business of Parliament will be frustrated

Some people argue that legislation dealing with pressing problems or introducing progressive social or economic programs could be challenged if it appeared to impair the rights of individuals.

However, a federal Human Rights Act would not necessarily prevent Parliament from introducing such laws even if they did impair the rights of individuals. A Human Rights Act would require the government to be more open and transparent. It would need to publicly justify passing laws that impacted upon human rights.

(d) Power will be transferred from the democratically-elected Parliament to unelected judges

Many opponents argue that a federal Human Rights Act would transfer power from the democratically-elected federal Parliament to unelected judges.

This is not the case with a statutory charter of rights. If a federal Human Rights Act was based on the statutory model used in Victoria and the ACT, it would maintain the sovereignty of Parliament. It would not give judges the power to invalidate laws.

A statutory charter of rights is an ordinary Act passed by Parliament, which means that Parliament is able to repeal, amend or override it using the ordinary mechanisms of Parliament itself. If another Act of Parliament is found by the courts to be incompatible with the Charter, the courts would have no power to invalidate that other Act. Instead, the courts could only declare that a federal law is incompatible with one or more charter rights.

The final decision on how to deal with human rights will remain with the elected Parliament.

(e) There will be a rush of litigation

Some opponents of a federal Human Rights Act argue that it would lead to a rush of litigation regarding alleged breaches of human rights. In other places where statutory charters have been adopted, this has not been the case. For example, in the United Kingdom, while there has been some litigation pursuant to the Human Rights Act 1998 (UK), concerns regarding a flood of cases have been shown to be unfounded to date. There is also no evidence of a significant increase in litigation in either the Australian Capital Territory or Victoria, where charters have been introduced.

(f) Rights will be frozen in time

Another common argument against a Human Rights Act is that by writing human rights down will limit them and the legislation could become outdated. This argument would hold little weight if a statutory charter was adopted, as it could be amended by federal Parliament if necessary. If Australia committed to the protection of new rights, these could be included by amending the legislation.

(g) There is no historical basis for national human rights law in Australia

Some argue that unlike other countries with bills and charters of rights, there is no historical basis for introducing a national human rights law in Australia. Elements of this argument include:

  • Unlike the United States of America or South Africa, there is no history of civil conflict. Australia does not need a Human Rights Act to heal rifts, or to restore trust and the rule of law.
  • The founders of Australia’s system of government did not see the need for a bill of rights for Australia.

The drafters of the Australian constitution excluded a bill of rights partly because the federal and state parliaments at the time wanted to pass racially discriminatory laws. We wouldn’t agree with this reasoning now, so we shouldn’t bind ourselves to the outcome of that historical reasoning.

(h) A federal Human Rights Act is constitutionally flawed

There are a range of views about the constitutional validity of a federal Human Rights Act. A particularly important question is whether it would be constitutionally valid for courts to consider whether laws are compatible with human rights.

The Commission encourages consideration and debate of this question through the consultation process.

However, if it is not possible to give this function to the courts, it could be given to an independent body such as the Commission.

 


6 Where can I find more information about a Human Rights Act for Australia?

6.1 Resources on a federal Human Rights Act

New Matilda – A Human Rights Act for Australia Campaign

The Gilbert + Tobin Centre of Public Law

Public Interest Advocacy Centre

Human Rights Law Resource Centre

A Human Rights Act for Australia

Australian Human Rights Group

Wrongs, Rights & Remedies: An Australian Charter? Spencer Zifcak & Alison King

Amnesty International Australia

GetUp!

Human Rights Act TV

6.2 Australian Human Rights Commission submissions

The Commission made a submission to the Australia 2020 Summit in April 2008, supporting the adoption of a federal Human Rights Act. 

The Commission has made a number of submissions to consultation processes on charters of rights in Australian states:

  • In September 2007, the Commission made a submission to the Consultation Committee for a proposed Western Australian Human Rights Act on the Human Rights for WA Discussion Paper and draft Human Rights Bill 2007.
  • In December 2006, the Commission made a submission in response to the Tasmania Law Reform Institute Paper: A Charter of Rights for Tasmania?
  • In September 2005, the Commission made a submission to the Victorian Consultation Committee on a Proposed Charter of Rights.

 

6.3 Resources on state and territory legislation protecting human rights

Victoria:
Charter of Human Rights and Responsibilities Act 2006

Victorian Equal Opportunity and Human Rights Commission

Australian Capital Territory:
Human Rights Act 2004

ACT Human Rights Commission

The Australian National University - ACT Human Rights Act Research Project

NSW:
NSW Charter Group

NSW Council for Civil Liberties

NSW Parliamentary Library Research Service Charter of Rights Briefing Paper

Tasmania:
Tasmania Law Reform Institute

Western Australia:
A WA Human Rights Act

Final Report of the Consultation Committee for a Proposed Human Rights Act

Queensland:
Just Rights Queensland

South Australia:
Human Rights Coalition

Northern Territory:

Statehood Steering Committee discussion paper, “Constitutional Paths to Statehood

Public Forum - Securing Territorians’ Rights: Statehood and a Bill of Rights?