Frequently asked questions about a Charter of Rights
1. What is a Charter of Rights?
A Charter of Rights (sometimes called a Bill 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 (a Charter in an ordinary act of parliament); or
- A constitutional or entrenched Charter of Rights (a Charter included in a country’s constitution).
2. Does Australia have a federal Charter of Rights?
Australia does not have a federal Charter of Rights. However, five of the eight states and territories in Australia have either adopted, or are considering adopting, their own Charters.
Over the past decade some community groups, academics, politicians and individuals have increasingly argued that Australia should adopt a federal Charter of Rights 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 Charter. No decision has been taken on this issue. However, the Australian public might soon be presented with an important opportunity to consider and discuss the matter.
In the lead up to the federal election in November 2007, the Australian Labor Party (ALP) stated that, if it was elected to form the federal government, it would initiate a public inquiry about the best way to recognise and protect human rights and freedoms in Australia. According to the ALP, such an inquiry would establish a process of consultation which would ensure that all Australians would be given the chance to have their say on this important question.
HREOC strongly supports the establishment of an independent and inclusive national inquiry and public consultation process. HREOC will seek to play a constructive role in such a process, with the aim of ensuring that any resulting legislative or policy changes (including a Charter of Rights, should one be adopted), are compatible with Australia’s international human rights obligations.
3. Which Australian states and territories have a Charter of Rights?
Recently, Victoria and the Australian Capital Territory (ACT) have each adopted a Charter of Rights. Other states are currently considering adopting their own Charters.
- 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.
4. What is the impact of the state and territory Charters?
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.
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.
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.
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.
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.
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. What are the main arguments in favour of a federal Charter of Rights?
There are a range of arguments in favour of the adoption of a federal Charter of Rights, even if each state and territory in Australia had its own Charter. The main arguments in favour include the following:
- 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 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.
- State and territory Charters only protect human rights in relation to state and territory laws. A federal Charter of Rights would apply to all federal laws. It would define the human rights of all people in Australia, in line with Australia’s international human rights obligations. A federal Charter would define the responsibilities of federal government bodies and public authorities to promote and protect human rights. It is possible that a federal Charter could also define the responsibilities of individuals and private corporations, although the statutory charters adopted to date in Australia (in the ACT and Victoria) have not extended this far.
- Over time, a federal Charter of Rights 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.
6. What are the main arguments against a federal Charter of Rights?
Opponents of a federal Charter of Rights make a range of arguments as to why a Charter is not necessary, and could be undesirable. The main arguments against a federal Charter include the following:
- Many opponents argue that a federal Charter of Rights would transfer power from the democratically elected federal Parliament to unelected judges. The validity of this argument depends on the type of Charter adopted. If a federal Charter 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 strike down laws. Rather, it would allow federal courts to declare that a federal law is incompatible with one or more Charter rights. That law would then be reconsidered by the federal Parliament, thus preserving its legislative authority.
- Some opponents of a federal Charter argue that it would lead to a rush of litigation regarding alleged breaches of Charter rights. Again, the validity of this argument depends on the content of the Charter. 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, concerns regarding a flood of cases have been shown to be unfounded to date.
- Another common argument against a federal Charter is that by adopting a written Charter, human rights become limited to what is contained in the Charter, and this can become outdated. This argument would hold little weight if a statutory Charter was adopted, as the Charter could be amended by federal Parliament if necessary.
- Some opponents argue that a federal Charter of Rights is simply not necessary; that human rights are already well protected in Australia. An examination of Australia’s Constitution and federal laws, however, reveals the extent to which human rights currently lack adequate legal protection in Australia, and the ways in which the domestic legal system fails to implement Australia’s international human rights obligations.
7. How might a federal Charter of Rights protect human rights in Australia?
If a statutory federal Charter of Rights was adopted in Australia, it could assist in promoting and protecting human rights in a range of ways. Depending on the content of the Charter, it might 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 Charter; and
- requiring Parliament to publicly explain the justification if it enacts a law that is inconsistent with the Charter.
- Ensure that federal government policies take the human rights in the Charter 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 Charter 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; and
- requiring them to report annually on compliance with the Charter.
- Provide for the review of any federal law found to be incompatible with the Charter by:
- giving federal courts the power to issue a declaration of incompatibility;
- requiring that all declarations be tabled in federal Parliament; and
- 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 Charter.
- Provide individuals whose human rights under the Charter 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; and
- the right to seek reparations, including compensation where necessary and appropriate.
8. If Australia had a federal Charter of Rights, which human rights would be included?
There are a broad range of human rights that might be included in a federal Charter of Rights, if one was 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
These rights are set out in a range of international human rights treaties that bind Australia. These treaties include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Elimination of all Forms of Racial Discrimination.
Some supporters of a federal Charter of Rights argue that, as well as civil and political rights, it should include economic, social and cultural rights. This argument is supported by the fact that, internationally, it is widely accepted that human rights – including civil, political, economic, social and cultural rights - are indivisible and interdependent.
Other supporters of a federal Charter argue that it should include civil and political rights, but not economic, social and cultural rights.
Many of those who oppose the inclusion of economic, social and cultural rights do so based on concerns that it is not appropriate for courts to consider cases regarding the implementation of these types of rights. They argue that this might require judges to make decisions regarding the allocation of budgetary resources, which is ordinarily a matter for the government.
In the context of this debate, it is important to note that 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, it is important to recognise that the same is true of many cases regarding civil and political rights.
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.
9. Would we need a referendum to introduce a federal Charter of Rights?
Not necessarily. This would depend on the form of the Charter.
If the federal Parliament decided to introduce a statutory Charter of Rights, it would be adopted through an ordinary law passed by Parliament, without the need for a public referendum. This is how the Victorian and ACT Charters were adopted.
On the other hand, if it was decided that Australia should have a constitutional Charter of Rights, there would need to be a national referendum, using the process required for all constitutional amendments. In the past, meeting the requirements for amending the Australian Constitution has proven to be very difficult. Click here for further information regarding the constitutional amendment process.
10. Do other countries have Charters of 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:
- The United States has a Bill of Rights included as part of its federal constitution, adopted in 1791.
- The Indian Constitution, which came into force in 1950, includes a charter of rights. This is contained in Part III of the Constitution, called ‘Fundamental Rights.’
- The South African Constitution of 1996 contains a comprehensive Bill of Rights.
- From 1960, Canada had a statutory Bill of Rights. This was replaced in 1982 by the Canadian Charter of Rights and Freedoms, which entrenched the Charter in the Canadian Constitution.
- New Zealand has a statutory Bill of Rights, the New Zealand Bill of Rights Act 1990.
- The United Kingdom has a statutory Charter of Rights, the Human Rights Act 1998. For information regarding the Charter and its impacts, see the 2006 reports, ‘Review of the Implementation of the Human Rights Act’ and ‘Human Rights: Improving Public Service Delivery.’
11. Where can I find more information on Charter of Rights issues in Australia?
HREOC submissions
HREOC made a submission to the Australia 2020 Summit in April 2008, supporting the adoption of a federal Charter of Rights.
HREOC has made a number of submissions to consultation processes on Charters of Rights in Australian states:
- In September 2007, HREOC 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, HREOC made a submission in response to the Tasmania Law Reform Institute Paper: A Charter of Rights for Tasmania?
- In September 2005, HREOC made a submission to the Victorian Consultation Committee on a Proposed Charter of Rights.
HREOC speeches
The President of HREOC have delivered a range of speeches relating to the debate regarding a federal Charter of Rights. Recent speeches include the following:
- Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner, 'Indigenous Rights and the Debate over a Charter of Rights in Australia' Human Rights Law Resource Centre Annual Human Rights Dinner, Melbourne, 4 April 2008.
- Graeme Innes AM, Human Rights Commissioner, 'Human Rights, Governance and Decision Making' Forum of Commonwealth Agencies in NSW, 2008 Government Business Conference, Sydney, 7 March 2008.
- The Hon. John von Doussa QC, President, HREOC, ‘Cross party briefing on a proposed Human Rights Act: Creating a culture of human rights compliance’ Parliament House, Canberra, 28 February 2007.
- Graeme Innes AM, Human Rights Commissioner, ‘The Human Rights and Equal Opportunity Commission and the Protection of Rights at the Federal Level’ ANU Conference on Australian Bill of Rights: The ACT and Beyond, 21 June 2006.
- The Hon. John von Doussa QC, President, HREOC, ‘Why we need an Australian Bill of Rights - a Joint Forum’ speech delivered at the launch of the New Matilda campaign for a Bill of Rights, 7 December 2005.
To read more speeches delivered by HREOC’s President and Commissioners, click here.
Resources on a federal Charter of Rights for Australia
New Matilda – A Human Rights Act for Australia campaign
http://www.humanrightsact.com.au/
The Gilbert + Tobin Centre of Public Law
http://www.gtcentre.unsw.edu.au/resources/charterofhumanrights.asp
Public Interest Advocacy Centre
http://piac.asn.au/publications/hrkit.html
Human Rights Law Resource Centre
http://www.hrlrc.org.au
Resources on state and territory Charters of Rights
Victoria:
Charter of Human Rights and Responsibilities Act 2006
Victorian Equal Opportunity and Human Rights Commission
http://www.humanrightscommission.vic.gov.au
Australian Capital Territory:
Human Rights Act 2004
ACT Human Rights Commission
http://www.hrc.act.gov.au/
The Australian National University - ACT Human Rights Act Research Project
http://acthra.anu.edu.au/
NSW:
NSW Charter Group
http://www.nswcharterofhumanrights.org/
NSW Council for Civil Liberties
http://www.nswccl.org.au/issues/bill_of_rights/index.php
NSW Parliamentary Library Research Service
Charter of Rights Briefing Paper
Tasmania:
Tasmania Law Reform Institute
http://www.law.utas.edu.au/reform/Projects/Human%20Rights.htm
Western Australia:
A WA Human Rights Act
http://www.humanrights.wa.gov.au/
Final Report of the Consultation Committee for a Proposed Human Rights Act
http://www.humanrights.wa.gov.au/final_report.htm
Queensland:
Just Rights Queensland
http://www.justrightsqld.org/JRQ/index.html
South Australia:
Human Rights Coalition
http://www.humanrightscoalition.org.au/
Statehood Steering Committee discussion paper, “Constitutional Paths to Statehood”
Public Forum - Securing Territorians’ Rights: Statehood and a Bill of Rights?
