How are human rights protected in Australian law?
In Australia, human rights are protected in different ways. Unlike most similar liberal democracies, Australia has no Bill of Rights to protect human rights in a single document.
Rather rights may be found in the Constitution, common law and legislation - Acts passed by the Commonwealth Parliament or State or Territory Parliaments.
Australia's Constitution
The framers of Australia's Constitution, working in the 1890s, debated the adoption of a Bill of Rights along the lines of that in the United States. The proposal was defeated and our Constitution contains few protections for what we now call human rights. In his Boyer Lecture broadcast on Human Rights Day - 10 December - 2000, the Chief Justice of the High Court of Australia, Murray Gleeson, observed that "the Australian Constitution, as a plan of government for a federal union, is largely concerned with pragmatism rather than ideology". [1]
According to Lowitja O'Donoghue, former ATSIC Chair,
It says very little about what it is to be Australian. It says practically nothing about how we find ourselves here - save being an amalgamation of former colonies. It says nothing of how we should behave towards each other as human beings and as Australians. [2]
Nevertheless, there are five explicit individual rights in the Constitution. These are the right to vote (Section 41), protection against acquisition of property on unjust terms (Section 51 (xxxi)), the right to a trial by jury (Section 80), freedom of religion (Section 116) and prohibition of discrimination on the basis of State of residency (Section 117).
In recent years the High Court has found that additional rights for individuals may be necessarily implied by the language and structure of the Constitution. In 1992 the Court decided that Australia's form of parliamentary democracy (dictated by the Constitution) necessarily requires a degree of freedom for individuals to discuss and debate political issues. [3]
Common law
Australia's common law was inherited from the United Kingdom. And that in turn developed from the Magna Carta of 1215 which was probably the first human rights treaty - between King John and his Barons - in England if not the world. So human rights regulating the freedom of the citizen and limiting the power of the King or government are fundamental to our law.
Common law is often called 'judge-made' law. This distinguishes it from laws made in Parliament. It is certainly true that many protections we can identify as human rights are protected by Australian judges applying common law principles. Examples include the obligation of a court to refuse to allow an unfair trial to go ahead(even though the common law does not recognise a right to free legal representation in a criminal trial) [4] and the interpretation of permissible limits on freedom of movement within Australia. [5]
Common law can be expanded or reduced by legislation passed by Parliament. This frequently happens. An example of reduction is the common law principle that the police have no power to detain someone for questioning. [6] South Australia's Summary Offences Act 1953 grants the police this power where a serious offence is suspected. [7] An example of expansion is the recognition in legislation of the equality of men and women. Judges developing common law principles refused to make this recognition, instead treating their sex as a disability for women, disentitling them from pursuing many professions.
What is HREOC's role?
The Human Rights and Equal Opportunity Commission Act 1986 details the powers and functions of the Human Rights and Equal Opportunity Commission (HREOC) as the Commonwealth agency responsible for monitoring and promoting human rights protection. The Commission also has responsibilities under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992. As we have seen the principle of non-discrimination is a fundamental one in human rights law - all human rights should be enjoyed by everyone regardless of factors such as race, sex or disability.
Discrimination
Anti-discrimination
laws - including those implemented by HREOC - are well-accepted in Australia.
Allegations of discrimination in employment, education, housing, services
and public places can be investigated by HREOC or one of the State and
Territory equal opportunity agencies. Where the parties cannot come to
a negotiated settlement of such a complaint, the complainant is entitled
to take the matter to court for a decision and a remedy, including compensation
where appropriate.
DISCRIMINATION - grounds covered |
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Ground |
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SA |
TAS |
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ACT |
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Age
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| Breastfeeding |
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| Colour |
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| Compulsory retirement |
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| Criminal record (irrelevant or spent conviction) |
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| Disability |
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| Descent |
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| Ethnicity |
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| Family responsibilities |
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| Impairment |
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| Marital status |
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| Medical record |
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| Nationality |
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| National origin |
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| Parenthood |
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| Physical features |
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| Politics |
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| Pregnancy |
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| Race |
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| Racial hatred |
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| Religion |
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| Sex |
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| Sexual harassment |
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| Sexuality |
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| Trade union activities |
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| Transgender |
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Other human rights
Other human rights, however, are treated differently. There is no State or Territory human rights legislation, although some State laws reflect human rights principles. For example, child protection law typically makes the best interests of the child a primary consideration or even the paramount consideration.
Individuals can complain to HREOC about human rights violations but only if the allegedly guilty party is the Commonwealth. Even if the Commonwealth is found to be in violation of human rights, no Australian court can award a remedy. Certainly the Commission cannot do so. The Commission only has power to report to the Parliament with recommendations. These reports may refer to individual complaints - such as in the case of inhumane treatment of a Nigerian detainee at the Perth Immigration Detention Centre [8] or to legislation which operates to violate the human rights of many - such as Commonwealth superannuation legislation which discriminates against same sex couples. [9] Although the Commission's report must be tabled in Parliament, the government is under no obligation to adopt the recommendations.
The same problem of the absence of a remedy is true in employment discrimination cases dealt with by HREOC when the basis of the discrimination is age, sexual preference, religion or another ground - other than race, sex, marital status or disability (which fall under anti-discrimination legislation). The qualification here is that respondents can, and often do, include private companies. [10] Some State and Territory Acts cover some of these grounds of discrimination and allow complainants to take their case to a tribunal and ultimately to court.
Do we need better protection?
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]
The issue whether
Australia needs a Bill of Rights and, if so, what model we might choose
is one I will leave to a later publication
1. Chief Justice Murray Gleeson, "Boyer Lectures - Four Aspects of the Constitution", ABC Radio National, 10 December 2000.
2. Lois O'Donoghue in Frank Brennan, Securing Bountiful Place for Aborigines and Torres Strait Islanders in a Modern Free and Tolerant Australia, Constitutional Centenary Foundation, 1994, page 18; also cited in George Williams, Human Rights in the Australian Constitution, Oxford University Press, Melbourne, 1999, page 16.
3. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
4. Dietrich v R (1992) 177 CLR 292.
5. The test for the lawfulness of restrictions on freedom of interstate commerce (as guaranteed by the Constitution) was stated in various ways in Cunliffe v The Commonwealth (1994) 182 CLR 272.
6. R v Lemsatef [1977] 2 All ER 835, per Lawton LJ at page 839.
7. Section 78 inserted in 1985.
8. Report of an Inquiry into a Complaint of Acts or Practices Inconsistent with or Contrary to Human Rights in an Immigration Detention Centre, HRC Report No. 10, 2000: www.humanrights.gov.au/word/human_rights/asylum_seekers/hrc_report_10.doc.
9. Superannuation Entitlements of Same-Sex Couples, HRC Report No. 7, 1999: www.humanrights.gov.au/human_rights/gay_lesbian/index.html.
10. See, for example, Age Discrimination in the Australian Defence Force, HRC Report No. 8, 2000: http://www.humanrights.gov.au/human_rights/older_australians/index.html; Discrimination on the Ground of Trade Union Activity, HRC Report No. 9, 2000: www.humanrights.gov.au/pdf/human_rights/trade_unions_discrim.pdf
11. Concluding observations of the Human Rights Committee: Australia,
UN Doc. CCPR/CO/69 AUS, 28 July 2000.
12. Concluding observations of the Committee on the Rights of the Child: Australia, UN Doc. CRC/C/15/Add.79, 10 October 1997.
13. Sir Anthony Mason, 'Rights Values and Legal Institutions: Reshaping Australian Institutions', (1997) Volume 13 Australian International Law Journal pages
14. Brian Galligan, 'Australia's Political Culture and Institutional Design' in Philip Alston (ed) Towards An Australian Bill of Rights, Centre for International and Public Law & Human Rights and Equal Opportunity Commission, 1994, page 57. Last updated 8 March 2006.
