Kirsty Magarey and Roy Jordan, Law and Bills Digest Section

Even though Australia is party to several major human rights treaties, there is currently no Commonwealth legislation which directly implements two of the most important treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Together with the Universal Declaration of Human Rights, these treaties and their Optional Protocols, make up what is known as the International Bill of Human Rights. Such implementing legislation is usually referred to as a ‘human rights act’, or a ‘charter (or bill) of rights’—a statement of rights which is either reviewable (or even enforceable) in the courts and against which all newly introduced legislation has to be benchmarked. The ACT and Victoria, however, have implemented the ICCPR by legislation in their jurisdictions. The Commonwealth Constitution has only a small number of enforceable human rights, such as freedom of religion, as well as some implied rights found by the High Court, such as freedom of political communication.

Party policies

The major political parties have differing views on the desirability of a human rights act. The Coalition parties do not see the need for such an act and do not mention the issue in their policies. The former Prime Minister, John Howard, and former Attorney-General, Daryl Williams, have stated that current arrangements and the common law provide adequate protection. Tony Abbott has said ‘Bills of rights are left-wing tricks to allow judges to change society in ways a parliament would never dare.’ The Australian Labor Party, in its 2007 National Platform, had a commitment to establish an inquiry and consultation process to gauge the need and support for statutory protection of rights. The Australian Greens policy is to ‘adopt Australia’s international human rights obligations into domestic law and enact an Australian Bill of Rights’.

Brennan Consultation Committee

In November 2008, the Rudd Government established a National Human Rights Consultation Committee (NHRCC), chaired by Father Frank Brennan, to undertake consultation and report by 30 September 2009. In his submission to the Committee, shadow Attorney-General Senator George Brandis, on behalf of the Coalition Opposition parties, stated that ‘a statutory bill of rights is not the best model for advancing human rights’ and instead he recommended that expanded parliamentary scrutiny of legislation from a human rights point of view by a new Parliamentary Committee would be a better alternative

The Brennan Committee recommended that Australia adopt a federal Human Rights Act, along the lines of legislation already introduced in the Australian Capital Territory (ACT) and Victoria. The proposed legislation would set out a list of rights drawn from major human rights treaties, ensure that new legislation introduced into the Parliament was compatible with the Act and provide for the High Court to declare existing legislation incompatible with the Act and to refer the legislation back to Parliament for possible amendment.

One of the differences between the ACT and Victorian legislation is that Victoria allows for an ‘override provision’—a legislative provision which allows the parliament to effectively exclude particular legislation from the operation of the Human Rights Act in exceptional circumstances, such as threats to national security or a state of emergency. The ACT does not have a comparable provision and the question of whether it is appropriate for any Commonwealth legislation to have an override provision remains.

In April 2010, the Government responded to the NHRCC report by issuing its Australia’s Human Rights Framework document and related press releases, which included proposals to establish a statutory Parliamentary Joint Committee on Human Rights which would scrutinise legislation compliance with human rights treaties and a requirement that all new legislation introduced or tabled in Parliament be accompanied by a compatibility statement on human rights. In addition, the federal anti-discrimination laws would be consolidated into a single Act to remove unnecessary regulatory overlap and make the system more user-friendly.

The Government would also create an annual NGO Human Rights Forum to enable comprehensive engagement with non-government organisations on human rights matters (which already occurs informally through the Attorney-General’s Department’s NGO Human Rights Fora), and provide the Australian Human Rights Commission with extra resources to enable it to promote a greater understanding of human rights across the community.

A federal Human Rights Act, which may involve the courts, was not intended at that stage but a commitment was made to revisit the issue in 2014.

In its 2010 election policy The Coalition’s Plan for Real Action for Australia’s Future, the Coalition parties pledged to ‘discontinue the Australian Human Rights Framework’, as part of its projected expenditure savings.

Parliamentary Joint Committee on Human Rights

In June 2010 the Rudd Government introduced the Human Rights (Parliamentary Scrutiny) Bill 2010, together with a related bill, the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. The Bills were to be a partial implementation of the Government’s response to the Brennan Committee report and establish the Parliamentary Joint Committee on Human Rights. The main Bill provided for the powers, proceedings and functions of the committee; and introduced a requirement for statements of compatibility to be prepared for all Bills and disallowable legislative instruments. The Bills reached their second reading stage but lapsed in July 2010 with the general election. The provisions of both Bills were referred to the Senate Legal and Constitutional Affairs Legislation Committee in June 2010, which reported in July 2010 that, since both Bills had lapsed, it would discontinue its inquiry.

It is expected that both Bills will be reintroduced into the 43rd Parliament.

Library publications and key documents

Attorney-General’s Department, Australia’s Human Rights Framework, 2010, http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_TheAustralianHumanRightsFramework

Parliamentary Library, Bill of Rights: Internet Resource Guide, http://www.aph.gov.au/library/intguide/law/billofrights.htm

National Human Rights Consultation, website, http://www.humanrightsconsultation.gov.au/

Senate Legal and Constitutional Affairs Legislation Committee, Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010: Report and submissions, Commonwealth of Australia, Senate, Canberra, 23 July 2010, http://www.aph.gov.au/senate/committee/legcon_ctte/human_rights_bills/index.htm