Chapter 2Background to human rights protections in Australia
2.1This chapter sets out the background to human rights protections in Australia, including the current legislative framework, relevant state and territory legislation, and a brief overview of the 2009 National Human Rights Consultation and the resulting Human Rights Framework and National Human Rights Action Plan.
2.2Current human rights protection in Australia is drawn from a diverse and scattered range of sources. As noted by many submitters, Australia is the only advanced democracy without a Human Rights Act (HRA) or Charter.
Current human rights legislative framework
Constitution and common law
2.3Although Australia's Constitution does not include a bill of rights, a number of its provisions provide some protection for specific civil and political rights. These include the rights to vote (sections 7, 24 and 41) and to trial by jury (section 80), freedom of religion (section 116), protection against acquisition of property except on just terms (section 51(xxxi)), and prohibition against discrimination on the basis of state of residency (section 117). The separation of powers in Chapter III of the Constitution also allows the courts to determine the exercise of public power in a way that can protect human rights.
2.4The High Court has also found that the Constitution contains implied rights, most prominently freedom of political communication and because of the separation of powers in Chapter III, the potential for considerations of the right to a fair trial and requirements that only courts can impose punishment. Freedom of political communication is implied based on requirements for the functioning of Australia's representative democracy and is accordingly limited in scope to 'what is necessary for the effective operation' of constitutionally prescribed representative and responsible government.
2.5Further, the common law contains protections for traditional rights and freedoms including fair hearing and fair trial rights, freedom of speech, religion, association and movement. The common law is open to continual development by the judiciary, but can also be overridden by statute. The common law also provides for statutory presumptions, the most important rights-protecting principle being the ‘principle of legality’. This holds that the courts should not impute to Parliament an intention to interfere with fundamental rights. Statutes that interfere with fundamental rights ‘must be clearly manifested by unmistakable and unambiguous language' and it requires that statutes be construed ‘to avoid or minimise their encroachment upon rights and freedoms at common law’.
International treaties
2.6Australia is a party to a number of international instruments that are designed to protect or respect human rights, including:
International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocols;
the International Covenant on Economic, Social and Cultural Rights;
the International Convention on the Elimination of All Forms of Racial Discrimination;
the Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol;
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol;
the Convention on the Rights of the Child and its Optional Protocols; and
the Convention on the Rights of Persons with Disabilities and its Optional Protocol.
2.7Australia has agreed to be bound by these treaties, but they are not part of Australian domestic law unless specifically legislated. Australia has periodic reporting obligations under these seven treaties, and has agreed to the UN being able to accept individual complaints procedures against Australia under five. Australia also supports the United Nations Declaration on the Rights of Indigenous Persons as a non-binding legal document.
2.8Under the Human Rights (Parliamentary Scrutiny) Act 2011, these seven treaties form the basis of the work of the Parliamentary Joint Committee on Human Rights (the committee), which examines all legislation for compliance with international human rights law. The committee provides advice to Parliament but, where it finds legislation to be incompatible with international human rights law, that law is not invalidated. The committee's role and functions are considered further in Chapter 4.
Federal statute law
2.9Numerous Commonwealth statutes protect human rights, including laws relating to employment and rights at work; modern slavery; privacy; laws governing criminal and civil procedure; and laws regulating the exercise of administrative power.
2.10In addition, there are laws protecting against discrimination; establishing the Australian Human Rights Commission (AHRC); and requiring parliamentary scrutiny as to compatibility with human rights. Federal anti-discrimination laws consist of the Racial Discrimination Act1975,Sex Discrimination Act 1984, Disability Discrimination Act 1992 and the Age Discrimination Act 2004, prohibiting discrimination on the basis of age, disability, race, sex, intersex status, gender identity and sexual orientation. Each state and territory also has its own anti-discrimination laws, which vary as to the specific rights protected.
2.11The AHRC is an independent statutory body tasked with protecting and promoting human rights in Australia. The AHRC replaced the Human Rights Commission (established in 1981), which had narrower powers and functions. It monitors Australia's performance under international human rights standards, receives complaints about human rights violations, and promotes human rights through education and research.
Statutory charters of rights
2.12In 2004, the Australian Capital Territory became the first Australian jurisdiction to pass a Human Rights Act. The Human Rights Act 2004 (ACT) (the ACT HRA) operates under the 'dialogue' model (see below) and initially protected civil and political rights as set out in the ICCPR. The ACT HRA has been amended several times, and now also protects the right to education, the right to work, and Aboriginal and Torres Strait Islander cultural rights.
2.13The 'dialogue model' of human rights protection aims to prompt responses between the executive, legislative and judicial branches of government when a law or policy is inconsistent with human rights. Key features of this model include the executive making statements to Parliament regarding the human rights compatibility of proposed laws, Parliament having the ability to choose to pass legislation that is incompatible with human rights, and the judiciary being able to make statements of incompatibility with human rights that do not automatically override the affected laws.
2.14In 2006, Victoria enacted the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). The Charter protects 20 civil and political rights by requiring human rights to be considered in the law-making process and legal interpretation, and by imposing a duty on public authorities to consider human rights. The Charter has undergone two statutory reviews which have recommended a number of reforms to further improve human rights protection.
2.15Queensland became the most recent jurisdiction to pass a HRA with the passage of the Human Rights Act 2019 (Qld) (the Queensland HRA). Based on the Charter, the QLD HRA protects 23 civil, political, social and cultural rights.
2.16Three attempts have been made to include rights in the Australian constitution by referenda, which have all failed. Federal governments have also twice attempted to legislate a federal HRA. The Human Rights Bill 1973 (the 1973 bill) sought to protect rights along very similar lines to the ICCPR (then not in force) both at the federal level and within the states and territories, but lapsed at the double dissolution in 1974 and was not reintroduced. The Australian Bill of Rights Bill 1985, which unlike the 1973 bill was limited to federal and territory legislation, passed the House of Representatives but encountered difficulties in the Senate, eventually being withdrawn in 1986.
National Human Rights Consultation
2.17In 2008, in fulfilment of an election commitment, the government created a National Human Rights Consultation Committee (consultation committee) to conduct an extensive public consultation process to determine how best to protect human rights in Australia. The consultation committee, chaired by Father Frank Brennan AO, delivered its report to the government on 30September 2009.
2.18During the ten months of consultation, the consultation committee received 35014 written submissions, held 66 community roundtables in 52 locations around Australia, met with a range of relevant organisations and experts, conducted three days of public hearings, and commissioned dedicated social and economic research. Of the submissions that considered the possibility of a HRA, over 85 per cent were in favour.
2.19In its report, the consultation committee made 31 recommendations. 15 of these concerned the introduction of a federal HRA, constructed on a 'dialogue' model and incorporating a range of specific measures. Additional recommendations included the establishment of a parliamentary human rights committee, the development of a whole-of-government human rights framework (particularly around human rights education), and a requirement that all bills and legislative instruments be accompanied by a statement of compatibility with human rights.
Australia's Human Rights Framework and National Action Plan
2.20In response to the consultation committee's report, the government released Australia's Human Rights Framework (the Framework) in 2010. The then Attorney-General the Hon Robert McClelland MP stated that the government agreed with the consultation committee that people’s rights could be better acknowledged and protected, but said the Framework did not include a HRA. The then Attorney-General said that while there is overwhelming support for human rights, 'many Australians remain concerned about the possible consequences of such an Act', and the government believed that the enhancement of human rights ‘should be done in a way that as far as possible unites, rather than divides, our community’. As set out in more detail in Chapter 3, the Framework included enhancements to human rights education in schools, communities and the public service; increased funding for the AHRC; the development of a National Human Rights Action Plan (Action Plan); the establishment of a Parliamentary Joint Committee on Human Rights; requirements for statements of compatibility to accompany all bills and disallowable legislative instruments; and a commitment to review anti-discrimination laws.
2.21The Human Rights (Parliamentary Scrutiny) Act 2011 established this committee and introduced the requirement for statements of compatibility to accompany all bills and disallowable legislative instruments.
2.22Australia's Action Plan was released in 2012. This followed previous national action plans released in 1994 and 2004. The Action Plan documented a wide range of federal, state and territory government initiatives and measures being undertaken to advance the protection of human rights in Australia.
2.23Despite a commitment to review the Framework in 2014, no review took place. In large part, the Framework and the Action Plan lapsed following a change of government in 2013, with the exception of some legislated aspects such as the work of this committee and the requirement for statements of compatibility.
Developments since 2010 in Australian human rights law
2.24Since 2010, systemic legislative developments in Australian human rights laws include those set out above – namely, the introduction of the Human Rights (Parliamentary Scrutiny) Act 2011 and the introduction of the Queensland HRA in 2009. There have also been amendments to individual Acts or the introduction of new legislation that has the effect of improving human rights. For example, at the federal level, the introduction of the National Disability Insurance Scheme has the object of helping to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disability. There have also been amendments to better protect people from discrimination. This includes amendments in 2013 to protect people from discrimination on the basis of sexual orientation, gender identity and intersex status, and amendments in 2022 to provide better protection for workers from sexual harassment and other forms of sex discrimination, harassment and unfair treatment in the workplace. Legislation providing for same-sex marriage passed in 2017, laws designed to address modern slavery risks passed in 2018, and a number of laws have been introduced strengthening the federal framework of offences relating to overseas child sexual abuse, forced marriage, online child sexual abuse and new trends in child sexual abuse material and activity. There have also been legislative responses to recent royal commissions that are designed to better protect the rights of persons in aged care and provide remedies to victims of institutional child sexual abuse. At an international level, Australia ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2017.
2.25However, since 2010 there have also been numerous examples of federal legislation that raise human rights concerns, including in the areas of counter-terrorism, national security, refugees and asylum seekers, privacy, social welfare and citizenship. There have also been a number of failed attempts to legislate in the area of human rights, including to consolidate anti-discrimination legislation, introduce religious discrimination legislation or to constitutionally enshrine a Voice to Parliament.
2.26At the state and territory level, there has also been numerous examples of legislation seeking to protect and promote human rights. For example, the age of criminal responsibility was increased in the Northern Territory and Australian Capital Territory (ACT) and reforms have been introduced designed to give greater recognition and voice to Aboriginal and Torres Strait Islander people, to promote good mental health and wellbeing and to ban medically unnecessary non-consensual surgeries on children with intersex traits. Reforms have also been made to the ACT HRA to expand its operation and provide for avenues of enforcement. Yet there has also been legislation at the state and territory level interfering with individual human rights, in areas as diverse as children in the criminal justice system, pandemic lockdowns and protest laws.
2.27Since 2010 there has also been significant amounts of caselaw relating to issues involving human rights and to the interpretation of the state and territory HRAs. In particular, the High Court considered the constitutional validity of Victoria’s Charter, considering the scope of its interpretative provision and validity of its declaration of inconsistent interpretation power.
2.28There is a vast amount of legislation across the Commonwealth, states and territories, and caselaw, touching on human rights – including that which promotes, and that which limits, rights – but it is piecemeal and scattered. It is not possible for this committee to assess all developments in this area over the last 14 years. The committee notes that the Australian Government is required as part of the Universal Periodic Review process at the United Nations to provide an update on Australia’s human rights laws and refers to the most recent UPR process in this respect.
Australian Human Rights Commission's Free & Equal report
2.29In 2019 the AHRC commenced a project, Free & Equal: An Australian conversation on human rights,which sought to consider how we can better protect human rights and foster a culture of human rights across Australia.It involved extensive consultation commencing with the publication of an issues paper, and three subsequent discussion papers, engagement with over 1,000 stakeholders, including over 160 submissions, consultations, roundtables and technical workshops with stakeholders from legal, business, non-government organisations and public sectors, academia and parliamentarians.
2.30In 2021 and in March 2023 the AHRC released two position papers on key reform priorities: Free & Equal: a reform agenda for federal discrimination laws (2021) and Free & Equal:A Human Rights Act for Australia (2023). The second position paper proposes a model for a federal Human Rights Act. In seeking submissions on Australia's human rights framework, the committee particularly sought submitters' views in relation to the AHRC's proposal as set out in its 2023 position paper.
2.31On 7 December 2023, the AHRC released its final report of the Free & Equal project, Free & Equal:Revitalising Australia's Commitment to Human Rights. In this report, the AHRC made 12 recommendations, including the re-establishment of a National Human Rights Framework, that a federal Human Rights Act be adopted; discrimination law reform, an expansion of the remit of the Parliamentary Joint Committee on Human Rights, and a National Human Rights Indicator Index to measure human rights progress in Australia.