Charters of Human Rights in Australia: An Overview

State and Territory Charters of Human Rights

Following community consultations, legislative Charters of Human Rights (sometimes referred to as ‘Human Rights Acts’) have been adopted in Victoria and the ACT. For further information on developments in Victoria and the ACT, see our resources pages on the ACT Human Rights Act and the Victorian Charter of Human Rights and Responsibilities.

Other States and Territories have not adopted a Charter of Human Rights. However, in 2006 and 2007, the governments of Tasmania and Western Australia commissioned public consultation processes into human rights protections in those States. Both of these inquiries recommended that a Charter of Human Rights be enacted at a State level. (See the reports of the Tasmanian Law Reform Institute and the Consultation Committee for a Proposed WA Human Rights Act). The Tasmanian Department of Justice is currently undertaking a project involving further community consultations to examine a model for a Charter of Human Rights for Tasmania. However, the recommendation of the Western Australian committee has not been followed.

A Federal Charter of Human Rights?

At a national level, the ALP committed during the 2007 election campaign to conduct a public consultation on ‘how best to recognise and protect the human rights and freedoms enjoyed by all Australians’.

On 10 December 2008, Attorney-General the Hon Robert McClelland MP launched the National Human Rights Consultation. The Consultation was conducted by an independent Consultation Committee, which was chaired by Father Frank Brennan. The Committee made 31 recommendations, including that Australia should adopt a federal Human Rights Act.

On 21 April 2010, the Attorney-General responded to the Committee’s final report by launching 'Australia's Human Rights Framework' implemented by the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

The Act does not create a Charter of Rights. Instead, it establishes

Chapter 4f: Human rights in state and territory law

All Australian States and Territories have enacted anti-discrimination legislation. Under the Australian Constitution they can do so, as long as the State laws are not inconsistent with Federal laws. Often the State laws go further in the protection they offer because states are not limited in their powers, as the Federal Government is, by the terms of international treaties. Some State laws, for example, protect against discrimination on the ground of religion or sexuality, grounds not covered by Federal laws.

State and Territory human rights protections

The Australian Capital Territory (ACT) was the first Australian jurisdiction to pass a version of a Bill of Rights, the Human Rights Act 2004(ACT). In 2006, Victoria followed suit and passed the Charter of Human Rights & Responsibilities Act 2006(Vic). These laws are not ‘supreme’ laws like a constitution would be – they are simple Acts of Parliament that can be easily changed or overridden by a clear Parliamentary intention in a later Act. Neither the ACT Human Rights Actnor the Victorian Charter cover the field of human rights standards to which Australia has subscribed. Both Acts cover a selective range of rights, predominantly taken from the ICCPR. Both Acts recognise their selectivity and do not claim to be an exhaustive statement of individuals’ human rights.

These Acts are modelled on the United Kingdom's Human Rights Act 1998(UK). They are described as creating a ‘dialogue’ on human rights standards between the Executive, Parliament, the Judiciary and the community. They are also described as ‘preventative’ models as they aim to put human rights at the forefront of governmental decision-making. The main features of the Victorian and the ACT Acts are that they:

  • create a process by which all new legislation must be scrutinised for its human rights implications, and be accompanied by a statement of compatibility with human rights before it is passed by the Parliament. Parliament has the power to legislate in a way that is contrary to the protected human rights, but this will be explicit at the time it passes such law and any limitation or override of human rights will be justified;
  • create a new rule of statutory interpretation to require courts and administrative decision makers to interpret existing and future legislation consistent with human rights, ‘so far as it is possible to do so consistently with [the law’s] purpose’. International law, and the judgments of foreign and international courts and tribunals may be used in interpreting the recognised human rights. If it is not possible to interpret the law in question consistently with human rights, courts can issue a declaration of incompatibility (ACT) or declaration of inconsistent interpretation (Victoria) that places the law back before the Executive and Parliament to decide whether or not to amend the law in question. The government of the day must respond within six months, in writing, and table the response in Parliament. The court’s declaration does not make the law invalid;
  • create a duty incumbent on ‘public authorities’ to act consistently with human rights, unless the law clearly authorises decisions or conduct that is inconsistent with human rights. A ‘public authority’ is any organisation (including its staff) that provides services of a public nature – for example, a private company that runs a prison on behalf of government. Both the ACT (from January 2009) and the Victorian Acts allow individuals to approach a court for a remedy (other than financial compensation) in relation to a violation of a protected human rights by a ‘public authority’;
  • establish periodic reviews to consider expanding the scope of protected human rights to include economic, social and cultural rights. Notably, in 2012 the ACT amended its Human Rights Act to include the right to education; and
  • attempt to engender a human rights culture by measures such as appointing human rights commissioners responsible for reporting on the use of the relevant Act, monitoring compliance, educating the public service and the public at large, and promoting awareness of human rights. In the ACT, there is a Human Rights Commission and in Victoria, the Equal Opportunity Commission has become the Equal Opportunity and Human Rights Commission.

Do we need better protection?

Published by Australian Human Rights Commission, 2006

Australia has recently been urged by international human rights monitors to rethink the implementation of human rights in Australia. Comments included:

There are still areas in which the domestic legal system does not provide an effective remedy to persons whose rights under the [International Covenant on Civil and Political Rights] have been violated … [Australia] should take measures to give effect to all Covenant rights and freedoms. [11]

… there is no right of citizens to launch complaints in the local courts on the basis of the Convention on the Rights of the Child. [12]

Many Australians have come to the same conclusion. Former Chief Justice Sir Anthony Mason, for example, wrote in 1997:

Australia's adoption of a Bill of Rights would bring Australia in from the cold, so to speak, and make directly applicable the human rights jurisprudence which has developed internationally and elsewhere. That is an important consideration in that our isolation from that jurisprudence means that we do not have what is a vital component of other constitutional and legal systems, a component which has a significant impact on culture and thought, and is an important ingredient in the emerging world order that is reducing the effective choices open to the nation state. [13]

Academic expert on citizenship, Brian Galligan, states:

… the old confidence in the effectiveness of parliamentary responsible government and the common law for protecting human rights has been undermined by more realistic accounts of the weakness of parliament and the increasingly residual domain of common law compared with the plethora of statutory laws. [14]

"Legislating for a Bill of Rights Now"

Papers on Parliament No. 36 June 2001

'Without a Bill of Rights, many of our basic freedoms, possibly even including the right to vote of some sections of the community, can be taken away by federal, state and territory parliaments. Any student of Australian history will be aware of the danger that parliaments can pose to civil liberties. After all, one of the first pieces of legislation passed by the new Commonwealth Parliament was the Immigration Restriction Act 1901, which implemented the White Australia policy.'