1
HUMAN RIGHTS IN AUSTRALIA
Human rights are the entitlements and freedoms 1 necessary for human flourishing 2 in a political community.
The actual content of human rights at any given time in any given society may be contested, but once they
are determined, they form an important foundation of the public law of every community. This chapter traces
the origin of what are considered inalienable human rights in the Western legal tradition, and the way these
rights are promoted and protected in the Australian legal system.
Australia has boasted to the international community that Australians enjoy a ‘high level’ of human rights
protection and observance. 3 Indeed, on the international plane, Australia appears to be a leader and model
promoter of human rights, as it has ratified all the main international human rights treaties and has been
involved in their drafting. But the story becomes more complex upon a closer look at the federal level, where
human rights protection is partial and patchy.
There are many gaps in federal human rights protection in Australia. In the 21st century, children have been
held in immigration detention centres, anti-terrorism legislation allows individuals to be detained for several
days without charge, and antidiscrimination protection can be suspended. The haphazard nature of human
rights protection contributes to a poor understanding of human rights within the community. Australian
lawyers are often forced to make cryptic, highly technical and circuitous arguments that are difficult for nonlawyers to follow, because one of the assumed major sources of human rights protection (albeit an indirect
source of protection) derives from the strict separation of federal judicial power required by Chapter III of the
Constitution. 4 At the State level there are fewer structural protections of human rights because the State
constitutions do not guarantee the separation of powers, as occurs under Chapter III of the Federal
Constitution, although the position of the State courts as part of the integrated federal judicial structure
provides a minimum guarantee against encroachment into judicial independence and impartiality. Among its
international peers, Australia is a relative latecomer to the field of human rights jurisprudence in the form of
systematic rights protection. Only since 2004 has a coherent body of human rights law begun to emerge in
two Australian jurisdictions: the Australian Capital Territory (ACT) and Victoria.
The patchwork and technical nature of human rights protections in Australia means that few Australians are
acquainted with their rights, and many find it difficult to articulate them. Indeed, in a 2006 survey, 61 per cent
of those Australians surveyed mistakenly believed that Australia has a federal Bill of Rights. 5 In 2009 a
national consultation took place to gauge Australians’ views about human rights protection and whether it
could be improved. After travelling the nation and receiving over 35,000 written submissions, the Committee
– chaired by Father Frank Brennan and known as the ‘Brennan Committee’ – observed that ‘Human rights
are not well understood by the Australian community’, 6 and made 31 recommendations as to how Australia
could strengthen its protection of human rights. The first three recommendations are broad in that they identify
the need for better human rights education, including a readily identifiable list of Australian rights and
responsibilities.
The Brennan Committee’s report proposed that Australia adopt a federal legislative Bill of Rights, basing its
recommendation on the support of 87 per cent of the submissions received by the Committee. 7 The Brennan
Report also made a number of useful recommendations as to how the three arms of government could
improve their promotion of, and compliance with, human rights. The Report argued that although the vast
majority of Australians enjoy some measure of human rights protection, whether this level of protection is
adequate should be judged on how well it protects the rights of the most vulnerable and marginalised sections
of society.
This chapter examines why human rights protection in Australia is a patchwork, lacking either consistency or
uniformity. It begins by setting out how the notion of rights emerged in the Anglo-American world and how,
through the UN system, the international community has brought some uniformity to rights protection in the
drafting and monitoring of international human rights instruments. It analyses Australia’s level of compliance
with these international human rights treaties by mapping how our Constitution, legislation, the common law
and federal human rights institutions provide an uneven level of human rights protection. It shows that some
Australian jurisdictions, specifically the ACT and Victoria, are providing the lead in building a human rights
culture within the operation of government. Overall, this chapter argues that there are signs at the federal
level of the emergence of a more robust and systematic mechanism to review all legislation for its human
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rights impact. Stronger review mechanisms have been embedded within the Parliament and the Executive so that
potential human rights problems in the legislative process are given greater consideration by our elected
representatives and government before they enact laws that affect the community. Ultimately, these mechanisms
need to be aimed at strengthening government accountability and lifting awareness within the electorate as to how
our legal system protects and abrogates human rights, so as to facilitate a more informed choice on election day.
The national emergence of rights
In Parliament House in Canberra, visitors can see an ancient facsimile of the Magna Carta , valued at many
millions of dollars. To human rights lawyers in the AngloAmerican world, the 13th-century Magna Carta is revered
because it records the first documented time that the absolute power of the King was challenged and the King was
made subject to the law. Through this document, the barons of England were successful in demanding that the
King consult with them in return for the taxes they paid. In other words, they were successful in protecting their
rights and privileges. This is not to say, however, that these rights and privileges were won for all the people at
this point of time. A second English progenitor of rights was the enactment of the 1689 Bill of Rights by the English
Parliament. This document placed certain restrictions on the sovereign; for example, it required the King to gain
the agreement of Parliament before imposing new taxes. The document also guaranteed various rights such as
freedom of speech and freedom from cruel and unusual punishments.
A century later, the French drafted the 1789 Declaration of the Rights of Man Citizen , which declared that all men
were equal by the laws of nature. document influenced the drafting of the most influential constitutional rights
document: the US Bill of Rights . The US Constitution is the first written national Constitution in the world to have
included a Bill of Rights, although it must be remembered that these rights were added a few years later in the
form of amendments to the Constitution. While some of these rights – such as the right to freedom of religion –
are considered universal, others – such as the right to bear arms – are seen as archaic and uniquely associated
with American history.
Australia does not have a constitutional tradition of rights as its Constitution does not include a Bill of Rights. As
Chapter 2 explains, Australia did not follow the US model because its beginnings as a nation were not troubled by
the same dramatic events that characterised the founding of the US. In Australia, successive attempts over the
20th century to boost the rights protections in our Constitution have been unsuccessful.
At the time of the drafting of the US Bill of Rights and the French Declaration of the Rights of Man , it was thought
that rights were innate, immutable and came from natural law – a law above the law of man. One problem with
this natural law theory is that it is difficult to determine what exactly these ‘natural’ rights entail. An influential
English philosopher, Jeremy Bentham (1748– 1832), found the concept of natural rights to be ‘simple nonsense’:
Rights is a child of law; from real law come real rights, but from imaginary law, from laws of nature, come imaginary
rights … Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense – nonsense
upon stilts.
In Bentham’s view, ‘real rights’ are rights that have a positive source in government; they cannot be simply
asserted or assumed to exist. The writing and entrenching of rights into a state’s constitution, such as that of the
US, was hence a significant step as rights became part of the positive law of the state. But the problem with
Bentham’s positivist approach can be seen in a situation where a state fails to entrench rights fully into either its
constitution or legislation, such as the case of Australia. The relative dearth of rights in our Constitution or in a
legislative Act does not mean that Australians have no rights; but it is accurate to say that our rights are not
systematically protected.
The international emergence of rights
One sphere where Australian governments have been actively involved in the creation of rights is the international
sphere, where dozens of human rights instruments detail international rights and standards. States can ratify these
international instruments, thus binding themselves to respect, fulfil and protect these rights.
Human rights as we know them today only emerged after the end of World War II. The UN was created as a
response to the atrocities of the War and as a means of building a global form of collective security. In face of the
Holocaust, human rights were understood as a means of prescribing how governments worldwide should treat
their populations. Article 1(3) of the Charter of the UN (1945) (‘UN Charter’) states that one purpose of the UN is:
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To achieve international co-operation in … promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or religion.
These words are repeated in art 55 of the UN Charter, alongside statements regarding the need to promote ‘higher
standards of living, full employment, and conditions of economic and social progress and development’. Article 56
follows with a ‘pledge’ that all members ‘will take joint and separate action in co-operation with the Organization
[the United Nations] for the achievement of the purposes set forth in Article 55’. This pledge was advocated by
Herbert V Evatt, the Australian AttorneyGeneral and Minister for External Affairs, and leader of the Australian
delegation to the 1945 San Francisco Conference that drafted the UN Charter, who was also known at the UN as
a champion for social and economic rights. Overall, however, there are few references to human rights in the UN
Charter, and those that exist are weak in that they use the language of promotion rather than protection.
This inattention to human rights was partly remedied in 1948, when the Universal Declaration of Human Rights
(UDHR) was drafted and subsequently adopted by the UN General Assembly. The UDHR sets out universal
human rights standards: it consists of a preamble and 27 articles setting forth human rights and fundamental
freedoms that were conceived as ‘a common standard of achievement for all peoples and all nations’. As Chapter
10 of this book explains, because the UDHR is a declaration, it is not a binding instrument; although today many,
but not all, of the articles of the UDHR are considered part of customary international law.
One of the important aspects of the UDHR is that it brought together in one single document three sets of rights,
which are sometimes referred to as first-, secondand third-generation rights. These different types of rights are
today considered by the UN to be interdependent and indivisible. First-generation rights are civil and political rights,
such as freedom of religion and freedom of speech. Such first-generation rights are found in the European
Convention on Human Rights , which was drafted in 1949, as well as other Western Bills of Rights including the
US Bill of Rights and the UK Human Rights Act 1998 . These rights have typically been championed by the West.
Second-generation rights are social, economic and cultural rights, such as the right to housing and the right to
health; rights that were particularly supported by the Communist Bloc during the Cold War. Third-generation rights
are collective or solidarity rights, articulated predominantly by developing countries, such as the right to selfdetermination. The UDHR included both first-and second-generation rights as it was drafted before the Cold War
truly began. The UDHR also includes an example of third-generation rights: art 28 articulates a right to a ‘social
and international order’ in which the rights in the UDHR are realised.
After the adoption of the UDHR it was decided that the next step would be to draft a binding instrument with strong
enforceable language to contain these rights.
At this point, Cold War tensions between the West and the Communist Bloc meant that two separate covenants
were drafted containing the first two generations of rights. These separate conventions, adopted in 1966, are
known as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR). These are often referred to as the ‘Twin Covenants’, because
they were concurrently drafted and some of their provisions (such as art 1) are identical; however, the language
and mechanisms contained in the ICCPR are stronger than those in the more aspirational ICESCR. Together all
three instruments – the UDHR, the ICCPR and the ICESCR – are known as the ‘International Bill of Rights’.
Since the ICCPR and ICESCR came into force in 1976, five more core human rights treaties have been drafted
and have come into force: these are the International Convention on the Elimination of Racial Discrimination
(ICERD), the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the
Convention on the Rights of the Child (CRC), the Convention on the Rights of Persons with Disabilities (CRPD)
and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Australia has ratified these seven core human rights treaties. While some third-generation rights – such as the
right to the environment and the right to economic and social development – are articulated in non-binding
declarations, thus far they have not been directly set out in any treaties, with the exception of the right to selfdetermination which is set out in art 1 of both the ICCPR and the ICESCR.
For each of the core human rights treaties there is a relevant treaty committee – a quasi-judicial body that hears
individual complaints about inadequate state compliance as well as state-to-state complaints. For example, the
Human Rights Committee is responsible for the ICCPR, while the Committee on Economic, Social and Cultural
Rights is responsible for the ICESCR. The conclusions of these treaty bodies in relation to individual complaints
regarding state compliance are not binding. Individual complaints can only be submitted if the state party has
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ratified the First Optional Protocol to the ICCPR or the Optional Protocol to the ICESCR. Australia has ratified the
former but not the latter, which only came into force in 2013, almost 40 years after the former.
Another function of these treaty bodies is to monitor state compliance: this is done through scrutinising reports
periodically submitted by state parties. The idea is that the reporting process encourages states to reflect on their
compliance. The treaty bodies then publish ‘report cards’, which set out the positive and negative aspects of a
state’s performance. Once again, these report cards have no formal force, but they are designed to pressure state
parties to fulfil the obligations they have undertaken. In addition to these treaty bodies, the UN Human Rights
Council monitors a state’s compliance with international human rights law at a more holistic level by conducting a
‘universal periodic review’ of each UN member’s human rights record every four years. Unlike the quasi-judicial
Human Rights Committee, which is made up of independent legal experts, the Human Rights Council is a political
body made up of states, which means that the periodic review process is one whereby each UN member is
reviewed by its peers.
If one looks solely at Australia’s list of ratifications of the main human rights treaties, Australia looks like a model
nation. However, our latest report cards from the UN treaty bodies point to a different story. For example, in 2009
the Human Rights Committee expressed a number of substantive concerns: 11 these included the compatibility
of the provisions of the Anti-Terrorism Act (No 2) 2005 (Cth) with the ICCPR, in particular the expanded powers
given to the Australian Security Intelligence Organisation (ASIO); 12 the continued operation of some elements of
Australia’s mandatory immigration detention policy; and Federal Parliament’s suspension of the Racial
Discrimination Act 1975 (Cth) for the purposes of the Northern Territory Emergency Response measures. 13 At
the same time, the Committee on Economic, Social and Cultural Rights also expressed concern on the latter two
issues and added a number of issues regarding the social and economic rights of Indigenous Australians, who
suffer statistically high levels of ill health, homelessness and poor education. 14 Both treaty bodies recommended
that the Federal Government enact comprehensive legislation to give effect to the Twin Covenants; that it establish
a mechanism to ensure the compatibility of domestic law with the Covenants; and finally, and more controversially,
that it consider introducing a federal charter of rights. All these criticisms and recommendations were echoed in
February 2011 by Australia’s peers at the UN Human Rights Council, following the Council’s review of Australia’s
human rights record.
Since Australia ratified the First Optional Protocol to the ICCPR in 1991, it has been subject to over 100 registered
individual complaints about its inadequate compliance with the treaty; this is the third highest number of registered
complaints after Canada and Spain. The Human Rights Committee has heard about 50 of these complaints and
of these, in roughly one-third the Committee has found that Australia is violating the ICCPR. One area in particular
in which Australia has been found to be at fault is in the ‘arbitrary detention’ of asylum seekers under the Federal
Government’s mandatory immigration detention policy. In 10 individual cases since 1997, the Committee has
stated that this detention is contrary to art 9(1) and (4) of the ICCPR – which provide a right against arbitrary
detention and a right to have substantive judicial review of detention – and has called on Australia to remedy this
breach. 16 In its 2009 report card, the Human Rights Committee stated that Australia’s ‘failure to give effect to its
Views [in these complaints] would call into question [Australia’s] commitment to the First Optional Protocol’. 17
However, it must be kept in mind that the Committee’s views are not binding on Australia. In addition, Australia’s
‘failure’ in this regard often relates to its disagreement with the Committee as to the interpretation of various
relevant provisions of the ICCPR. Generally, Australia is prepared to engage constructively with the Committee’s
views.
In a number of cases, the UN Human Rights Committee has found laws to breach Australia’s obligations under
the ICCPR when these same laws have survived challenges to their constitutional validity in the High Court. For
example, in 2010 the UN Human Rights Committee concluded that the Queensland Dangerous Prisoners (Sexual
Offences) Act 2003 , which was upheld by the High Court in the case of Fardon v Attorney-General (Qld) , 18 was
a form of ‘arbitrary detention’ under art 9(1) of the ICCPR. The Committee reasoned that there was a breach of
art 9(1) because the continued incarceration of ‘dangerous prisoners’ under such legislation amounted to a fresh
term of imprisonment, which is not permissible in the absence of a conviction. 19 In a case dealing with similar
legislation in New South Wales, the Human Rights Committee found that the civil procedures embedded in the
legislation did not meet the due process guarantees, set out in art 14 of the ICCPR (due process is required for a
fair trial in which a penal sentence is imposed). 20 These cases illustrate that Australia has insufficient procedural
or substantive safeguards that would require Parliaments to consider human rights in a systematic manner before
enacting law or policy. Additionally, it highlights that our courts are not empowered to consider compliance with
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human rights standards, such as those in Australia’s international obligations, when reviewing the constitutionality
of legislation.
One of the challenges in protecting human rights in Australia lies in controlling the actions of the Executive. In
practice, the Executive is the most powerful arm of government because it has the most resources and because
it interprets and enforces legislation on a daily basis. Unlike the Legislature, it is not directly accountable to the
electorate. This means that the actions of the Executive require close monitoring by Parliament, the courts, human
rights institutions, the media and civil society. The mechanisms for bringing the Executive to account in Australia
are explained in Chapter 7. An examination of the Human Rights Committee’s 2009 report card and the 2011
review by the Human Rights Council shows that a number of the concerns of these international bodies relate to
the Executive’s exercise of its powers. For example, in regard to Australia’s mandatory policy of immigration
detention, the Human Rights Committee has criticised the Department of Immigration and Citizenship’s failure to
conduct periodic reviews of continued detention in individual cases and to find less invasive, alternative means to
detention, which has led to some detainees being held in detention for up to five years. 21 Since August 2012 this
problem of arbitrary detention has been exacerbated by the transfer of all those asylum seekers who arrive by
boat to third countries such as Papua New Guinea (PNG) and Nauru as part of a regional processing agreement
Australia has brokered. 22 The UN High Commissioner for Refugees (UNHCR) has expressed concern that the
asylum seekers transferred to PNG are being held in mandatory and indefinite detention. 23 Furthermore, this
group of asylum seekers includes children, despite the UNHCR’s recommendation that children not be subject to
this regime.
Another concern is the manner in which the Executive exercises its power to detain asylum seekers who have
received adverse ASIO security assessments. About 50 recognised refugees, including children, have been held
in prolonged and potential indefinite detention, in some cases up to four years, following such negative ASIO
assessments. These assessments are non-reviewable because asylum seekers are not able to seek merits review
through the Security Appeals Division of the Administrative Appeals Tribunal, unlike other persons who are subject
to such negative ASIO assessments. Indeed, ASIO is under no obligation to inform persons of the basis of its
assessment, which means that the legality of ASIO’s decisions cannot be challenged in the courts through judicial
review. In response to public criticism, the Gillard ALP Government appointed an ‘Independent Reviewer of
Adverse Security Assessments’, to provide an advisory review of these ASIO assessments. The role of the
reviewer is to provide a recommendation to the government as to whether the assessment is an appropriate
outcome. 24 In August 2013 the Human Rights Committee concluded that this prolonged and indefinite detention
amounted to cruel, inhuman and degrading treatment (contrary to art 7 of the ICCPR), and that the detention was
arbitrary (contrary to art 9 ICCPR) because of the government’s refusal to provide reasons for, or any information
regarding, the assessments and its removal of procedural rights. 25 The Human Rights Committee recommended
that Australia release the detainees and compensate them, giving Australia 180 days to respond. Subsequent to
the complaint being lodged, two of the detained families were released after ASIO overturned its assessment
following a recommendation by the Independent Reviewer; and in one case ASIO rescinded its assessment on
the eve of a High Court challenge. 26 The recommendation of the Human Rights Committee may fall on deaf ears,
as the Coalition Government has announced plans to eliminate the minimal safeguard on the exercise of executive
power offered by the independent advisory review.
During times of heightened tension, such as the ‘War on Terror’ that succeeded the 11 September 2001 terrorist
attacks, the powers of executive agencies such as ASIO and the police often become widened without sufficient
monitoring. Sometimes, the problem is that Parliament delegates powers to the Executive without giving enough
consideration to the human rights impact of such delegations. At other times, Parliament has failed to foresee how
legislation may burden human rights because, as we shall see, in the past its process for reviewing proposed
legislation has not been adequate. In the Human Rights Committee’s report card in 2009, concern was expressed
that various powers given to ASIO were overly vague and broad. 28 According to two leading commentators, some
of ASIO’s powers in relation to anti-terrorism measures are ‘more extensive than the powers granted to similar
organisations in the United Kingdom, Canada and the United States’.
To provide a clearer and more comprehensive picture as to how human rights are protected in Australia, the
following section considers the three main sources of law in Australia – the Constitution, legislation and the
common law – to compare and contrast how these sources operate to both protect and abrogate human rights. It
illustrates that there are many gaps in our federal system of human rights protection. It then evaluates the powers
of our human rights institutions to monitor the actions of the Executive, as well as the legislation enacted by
Parliament.
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Human rights at the federal level
Constitutional guarantees
Australia’s Constitution is one of a small number of constitutions in the common law world not to include a Bill of
Rights. It remains untouched by the juggernaut of the human rights movement and, in this regard, it stands alone
among English-speaking nations. Individual rights provisions in the Australian Constitution are few, and they are
difficult for a non-lawyer to either identify or understand. There are just four express individual rights provisions: s
51(xxxi) states that the Commonwealth can only compulsorily acquire property on ‘just terms’; s 80 protects a
limited right to trial by jury; s 116 protects freedom of religion; and s 117 requires freedom from discrimination on
the basis of State residence. With regard to the second and third of these, the High Court has interpreted them
very narrowly because of its adherence to legalism in interpreting the Constitution (see Chapters 3 and 8). In
addition, the first three provisions are limited in that they relate only to the actions of the Federal Government.
Since 1901 various attempts have been made to extend these rights, but these have failed partly due to the difficult
referendum requirements imposed by s 128 of the Constitution, and possibly partly due to the low level of
understanding of Australia’s constitutional rights among the electorate. Many Australians would be surprised, for
example, to find that the Constitution does not explicitly articulate or guarantee a right to vote, despite the fact that
under legislation voting is a duty, as part of our system of compulsory voting (see Chapter 4). That said, our system
of representative and responsible government 30 means that the Parliament cannot arbitrarily deprive Australian
citizens of their right to vote or their freedom of political communication. 31 The constitutional principles of
responsible and representative government do not confer individual rights, but instead place limitations on the
power of the Parliament.
The High Court has also found implied protections in our Constitution based on the principle of the separation of
federal judicial power as required by Chapter III of the Constitution (explained in Chapters 8 and 9). For human
rights advocates, the indirect protections offered by the implications of Chapter III of the Constitution have been
an invaluable tool, but this path of protection has produced highly circuitous forms of argument. For example, in
cases involving the imposition of detention or control orders (parole-like conditions or house arrest where no
charges have been laid), advocates are forced to make technical arguments about the nature and limits of judicial
power and are unable to directly submit that federal legislation abrogates the right to liberty in a disproportionate
and unjustifiable manner. The latter argument is used in jurisdictions such as the US, Canada and the UK, where
human rights are directly protected through constitutional or legislative Bills of Rights. On the rare occasions when
the Australian High Court has found implied protections in our Constitution, the decisions have been met with
controversy as they raise the inevitable debate about parliamentary supremacy and judicial review. 32 In sum, the
scarcity of human rights guarantees in the Constitution means that there is little High Court jurisprudence that
directly engages with human rights law. This has meant that the main responsibility for human rights protection in
Australia lies with the Federal Parliament.
Legislative action
Given the paucity of constitutional protection of human rights in Australia, Federal Parliament enjoys few human
rights constraints in legislating. At the same time, Parliament bears the primary responsibility of protecting our
human rights. The question is whether Parliament is sufficiently well equipped to carry out this important role given
that it is dominated (at least in the lower house) by the Executive (see Chapter 6) and, as an elected body, it
generally acts in the best interests of the majority rather than those who are most vulnerable, marginalised or
unpopular.
In 2009 the Brennan Report 33 found that those Commonwealth Government actors formulating policy and
legislation were giving insufficient attention to human rights considerations. Human rights were not being
adequately integrated into the parliamentary process. In regard to Parliament, the Brennan Report recommended
the establishment of a new joint parliamentary committee modelled on the UK’s Joint Committee on Human Rights
(which is widely regarded as performing a robust level of scrutiny), together with a system of statements of human
rights compatibility to accompany all new Bills and disallowable legislative instruments. The Report also
recommended that the Federal Government conduct an audit of all existing law, policies and practices to determine
Australia’s compliance with its international human rights obligations and subsequently amend them where
necessary. In particular, the Report drew attention to the areas of national security and immigration as well as antidiscrimination law, which is covered by a hodge-podge of Acts. The 2010 government response to the Brennan
Report , known as the Human Rights Framework , 34 implemented a number of the Report’s recommendations,
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particularly those relating to strengthening the parliamentary protection of human rights by establishing the
Parliamentary Joint Committee on Human Rights (PJCHR) (discussed briefly in Chapter 5) and introducing a
system of Statements of Compatibility. While the area of anti-discrimination law has been the subject of some
attempt at reform, the area of immigration law has seen deterioration in human rights compliance as both major
political parties have been competing to curtail the rights of asylum seekers – ostensibly in a bid to deter the
business of people smuggling – drawing criticism from various UN bodies.
This section analyses these developments and charts Parliament’s trajectory in protecting human rights. It begins
by explaining Parliament’s power to enact human rights legislation and traces some of the instances where
Parliament has actively promoted human rights through enacting anti-discrimination legislation. This is followed
by some instances of where Parliament has used legislation to curtail human rights in a bid to counter terrorism
and so-called threats to our borders (see also Chapter 14). It then sets out how the new system of parliamentary
scrutiny operates through the PJCHR and Statements of Compatibility.
Legislative protection of human rights
It is possible to argue that in some respects our federal system circumscribes the ability of our Federal Parliament
to provide positive protection of human rights through enacting legislation to promote human rights. Sections 51
and 52 of the Constitution set out the main limits on the Federal Parliament’s powers. However, as we shall see,
this does not fully reflect the reasons why there is only partial legislative protection of human rights at the federal
level.
After signing the ICCPR in 1972, the Whitlam ALP Government introduced a legislative Bill of Rights so as to
implement the ICCPR using the external affairs power (s 51(xxix)). When the Whitlam Government was dismissed
in 1975, this Bill stalled. Three years after Australia ratified the ICCPR in 1980, federal Cabinet once again
approved the introduction of a legislative Bill of Rights, but this time the Bill was never introduced into Parliament.
In the meantime, the Federal Parliament began enacting anti-discrimination legislation over a period of almost 40
years, piece by piece, starting with the Racial Discrimination Act 1975 (Cth) (RDA), which implemented parts of
the International Convention on the Elimination of Racial Discrimination (ICERD). In 1982 the Premier of
Queensland challenged the validity of the RDA in the case of Koowarta v Bjelke-Petersen 35 on the ground that
the Federal Government could not use the Commonwealth’s legislative power over external affairs to implement
international human rights treaties. Before 1975, Queensland laws overtly discriminated against Indigenous
Australians: they were subject to restrictions in respect of the holding of property, residence and working on
reserves. Queensland was concerned that such federal anti-discrimination legislation would erode traditional State
powers. The High Court held that the use of the external affairs power to enact the RDA was valid, and it effectively
found that our system’s federal division of powers was indeed compatible with the federal implementation of human
rights treaties.
The enactment of further anti-discrimination legislation was very slow: nine years after the RDA came the Sex
Discrimination Act 1984 (Cth); a further eight years later came the Disability Discrimination Act 1992 (Cth); and
finally, in 2004 came the Age Discrimination Act 2004 (Cth). This suite of four separate discrimination Acts provides
protection from discrimination on the grounds of race, sex, disability and age in relation to actions in the public
sphere such as the workplace, education, and the provision of goods and services. The RDA goes further to
prohibit discrimination in any field of public life. In addition, the Fair Work Act 2009 (Cth) sets out protections
specifically relating to discrimination in employment.
A breach of anti-discrimination legislation is known as an ‘unlawful’ act, which most often leads to civil remedies.
Such a breach can be addressed through a process of conciliation conducted by the Australian Human Rights
Commission (formerly known as the Human Rights and Equal Opportunity Commission), or determined through a
judicial hearing and binding order made by the Federal Court or the Federal Magistrates Court.
The States and Territories have also introduced anti-discrimination laws. In contrast to the federal Acts, this
legislation is omnibus in that a single statute covers all the protected grounds of discrimination. The Tasmanian
legislation is the most extensive, covering 22 grounds of discrimination. With the exception of the ACT and Victoria,
the State bodies established by these Acts do not have a mandate to promote human rights generally – the antidiscrimination legislation is more narrowly concerned with equality, albeit formal equality.
As a form of human rights protection, federal anti-discrimination legislation suffers from various weaknesses. For
example, such legislation has no special constitutional status: this means that Parliament can easily suspend it,
8
repeal it entirely, or amend it in order to either strengthen or weaken it when it sees fit. So far, this has taken place
three times, all in relation to Indigenous issues. The most controversial example was the suspension of the RDA
in 2007 under the Northern Territory Emergency Response (NTER) measures (discussed in Chapter 13), which
received bipartisan support when they were passed with little deliberation by Parliament. Under the banner of
protecting Indigenous women and children, these measures applied to all land owned by Indigenous communities,
targeting about 70 in particular, and the measures included the compulsory acquisition of this land which was
subsequently leased back to Indigenous communities. Unless there is media coverage, it is difficult for the
electorate to ascertain the human rights impact of such acts of suspension, which impose blanket limitations on
rights in a racially discriminatory manner. While this suspension of the RDA was formally lifted in 2010, 36 the
legislation did not explicitly set out that the RDA would prevail in the case of an inconsistency with the later
legislation.
Another problem is that the anti-discrimination laws in Australia form an inconsistent patchwork of legislation; for
example, the tests for discrimination differ according to the Act, making this field of law overly complex for individual
complainants and businesses to navigate. An employee who is not promoted because of more than one ground
covered under the four Acts (such as age and race and sex - an older Aboriginal woman) is not able to commence
action under more than one Act, but must choose one regime. Adding to this issue, enforcement of
antidiscrimination law is left to individual complainants who shoulder the entire onus of proof. In contrast, the Fair
Work Act shares this onus between the individual and the employer: once the complainant has been able to prove
that an adverse action has taken place, the employer must then establish that the action was not based on a
prohibited ground. This shifting of the burden of proof is in line with other jurisdictions such as the UK, the US,
Canada and the European Union.
Precedents in Australian anti-discrimination law are of a haphazard nature. This is because unlike the Equality
Commissions in the US and the UK, the Australian Human Rights Commission and similar state agencies do not
have the power to run strategic litigation so that important precedents can emerge in the field. 37 This means that
the emergence of precedents depends on whether individual complainants have sufficient resources to pursue
litigation. Indeed, many important precedents, such those set by the High Court, do not favour individual
complainants; unlike their counterparts in North America and the UK, Australian courts have not applied a
purposive or liberal approach to interpreting anti-discrimination law and thus they are not guided by the goals of
anti-discrimination law.
In 2012 the Gillard ALP Government made an unsuccessful attempt to remedy this hodge-podge of antidiscrimination law by introducing omnibus legislation – the human Rights and Anti-Discrimination Bill – aimed at
consolidating all grounds of discrimination into one Act, sharing the burden of proof between the complainant and
respondent, and reducing the risk of costs by each party bearing their own costs. The Bill drew some critics, such
as those former New South Wales Chief Justice, James Spigelman, who was concerned that one provision of the
Bill sought to impose liability for ‘conduct that offends, insults, or intimidates the other person’. He argued that
words such as ‘offend’ and ‘insult’ could potentially lead to breaches of our international treaty obligations to protect
freedom of speech and, more broadly, have of sex – one of is that as are this Human a ‘chilling effect’ on freedom
of speech in Australia. 39 Facing a tide of such criticism, the government withdrew the Bill entirely rather than
attempting to amend it. As a stopgap, in 2012 the government finally introduced legislation to amend the Sex
Discrimination Act in order to include sexual orientation, gender identity and intersex status as prohibited grounds
of discrimination.
As a result of the Human Rights and Anti-Discrimination Bill being scuttled, our framework of anti-discrimination
law remains a patchy affair and, with the exception of the Fair Work Act , it continues to place the entire onus of
proof on the complainant.
Legislative curtailment of human rights
While the Federal Parliament has chosen to enact anti-discrimination legislation, the post-11 September 2001
‘War on Terror’ has also led it to pass legislation that abrogates some human rights. 41 Since September 2001,
the Federal Parliament has passed more than 40 new counter-terrorism laws, partly under the external affairs
power, but also under the defence power and other powers. In late 2004, for example, the ASIO Legislation
Amendment (Terrorism) Act 2002 (Cth) was enacted, which amended the ASIO Act 1979 (Cth) to expand ASIO’s
powers of questioning and detention. Of particular concern is that the Act authorises ASIO to question and detain
for up to seven days any person who is not necessarily suspected of being involved in committing or planning to
commit a terrorist offence; it can apply to anyone who is able to ‘substantially assist in the collection of intelligence
9
that is important in relation to a terrorist offence’. 42 In these circumstances, a detained person has no right to
seek judicial review of the warrant and has no right to be brought before a court. This arguably breaches the right
to a fair hearing and to have an independent body review the legality of one’s detention.
Following the 2005 London bombings, the Federal Parliament enacted the AntiTerrorism Act (No 2) 2005 (Cth).
This amends the Criminal Code 1995 (Cth) and the Crimes Act 1914 (Cth). Based on UK legislation, the AntiTerrorism Act (No 2) gives the police power to impose control orders and preventative detention orders on
suspected terrorists. One such suspected terrorist, Jack Thomas, attempted to challenge the control order
imposed upon him under the legislation on the grounds that the legislation was not validly enacted under the
Constitution’s defence power and that it breached the Constitution’s strict separation of judicial power. 43 Thomas
was unable to challenge the legislation directly for placing unreasonable restrictions on his liberty because there
is no constitutional or even legislative guarantee of liberty in Australia. In contrast, in the UK – which has a
legislative Bill of Rights known as the Human Rights Act 1998 (UK) – the courts effectively placed limits on
legislative provisions dealing with both control orders and the secret evidence they were based upon, on the
ground that such provisions cannot be read compatibly with the various civil and political rights protected by the
Human Rights Act .
The same Anti-Terrorism Act figured in the 2007 case of an Indian doctor working in Australia, Mohamed Haneef,
who was detained by the police under the Crimes Act 1914 (Cth) for 12 days of questioning after a SIM card he
once owned was found in the possession of his second cousin, a terror suspect in the UK. On the 12th day of his
detention, Dr Haneef was finally charged with the offence of providing resources to a terrorist organisation, despite
the conclusion of the Australian Federal Police and the Queensland Police that there was insufficient evidence to
charge him. Upon being granted bail, Dr Haneef ’s work visa was immediately cancelled by the Minister for
Immigration and Citizenship under the Migration Act 1958 (Cth) on the basis that he had failed a character test
because of his ‘association’ with his second cousin. Dr Haneef challenged this by applying for judicial review of
the Minister’s decision in the Federal Court. 45 While the Federal Court could not directly consider Dr Haneef ’s
civil and political rights, it could look closely at the legislation. The Court held that the Minister had misconstrued
the legislation through interpreting the word ‘association’ too broadly. This error was a jurisdictional error and
invalidated the Minister’s decision to cancel Dr Haneef ’s visa. Dr Haneef won his appeal against the Minister’s
decision and the criminal charges against him were dropped soon after on the grounds of insufficient evidence.
The Haneef case shows that common law principles of statutory interpretation (outlined in the next section, and in
Chapter 11 in relation to international law) often play a critical role in protecting human rights in Australia because
of the unavailability of more direct means of challenging executive actions that contravene international human
rights. However, the weakness of statutory interpretation lies in the fact that it relies on the courts – which do not
enjoy the democratic legitimacy of Legislatures and can only be reactive in individual cases, as they must wait for
a human rights violation to take place. The Thomas and Haneef cases also show that there is clearly a danger of
basing federal counter-terrorism legislation on legislative schemes from countries such as the UK that have strong
human rights safeguards in the form of constitutional or legislative Bills of Rights.
New parliamentary scrutiny
Since early 2012 the Parliamentary Joint Committee on Human Rights (PJCHR) has become the main ‘rights
watchdog’ within Federal Parliament. 46 The PJCHR was established under the Human Rights (Parliamentary
Scrutiny) Act 2011 (Cth) ( HRPS Act ), and under s 7(a) and (b) of this Act the Committee’s function is to scrutinise
how proposed legislation (and disallowable legislative instruments) as well as existing Acts measure up to
Australia’s international obligations under the seven core human rights treaties it has ratified. This scrutiny takes
place not only when a Bill is first introduced, but also once amendments have been made at the time of the third
reading. A second function is ‘to inquire into any matter relating to human rights which is referred to it by the
Attorney-General, and to report to both Houses of Parliament on that matter’. 47 In addition, the HRPS Act
introduced a new requirement that all new Bills and disallowable legislative instruments are accompanied by a
Statement of Compatibility 48 to assess whether the Bill is compatible with the seven core human rights treaties.
These Statements of Compatibility are not binding on any court or tribunal, and a failure to present such a
Statement to accompany a Bill does not affect the validity, operation or enforcement of the Act.
The rationale behind these Statements of Compatibility is that human rights considerations be observed
throughout the pre-legislative stage so as to guide the development of policy and minimise the risk of new
legislation giving rise to human rights breaches. They are not intended to be prepared as an afterthought as a Bill
is about to be introduced into Parliament. An illustration of this point is the passing of the Stronger Futures
10
legislation in mid-2012 which effectively extends the NTER measures (discussed above, and further in Chapter
13) for a further 10 years and imposes income management-measures, predominantly on Indigenous
communities. 49 The Bill was introduced into Parliament in late 2011 and hence was not accompanied by a
Statement of Compatibility. Even though civil society 50 called for such a Statement of Compatibility to be
presented, this would not have overcome the fact that the policy was developed at a time when there was no
requirement that there be systematic consideration of Australia’s human rights obligations.
However, civil society was successful in requesting the PJCHR to scrutinise the Stronger Futures legislation and
report to Parliament regarding its compatibility.
The PJCHR has indicated that it expects all Statements of Compatibility to address three questions: whether the
limitation of a right is aimed at achieving a legitimate objective; whether there is a rational connection between the
limitation and the objective; and, whether that limitation is proportionate. 52 This assessment is a proportionality
process that requires balancing and weighing up rights with other rights and government objectives in a particular
context. It is similar to those tests used by courts in jurisdictions with Bills of Rights, such as the UK and Canada,
except that in the Federal Parliament it is an overtly political process.
The PJCHR has so far been very active and conscientious in its scrutiny function. Almost all Bills introduced into
Parliament in the first 18 months of its operation have been accompanied by Statements of Compatibility, although
not all of these offered adequate assessments of human rights compatibility. Where Statements of Compatibility
have been absent or inadequate, the PJCHR has asked the relevant Minister to justify how the legislation complies
with Australia’s international human rights obligations. One example is the PJCHR’s response to the regional
processing legislative measures enacted under the Gillard Government, the Migration Legislation (Regional
Processing and Other Measures) Act 2012 (Cth). When the legislation was introduced, it was not accompanied
by a Statement of Compatibility on the basis that the 2012 Bill was amending an earlier 2011 Bill, which was
introduced prior to the requirement of Statements of Compatibility. The PJCHR requested that the Immigration
Minister explain the Bill’s human rights compatibility to which the Minister replied that it is ‘the Government’s clear
view that the Act complies with Australia’s human rights obligations’. 53 After conducting an inquiry involving public
hearings and submissions, the PJCHR concluded that the legislative measures ‘carry a significant risk of being
incompatible with a range of human rights’, including the prohibition on degrading treatment (art 7 of the ICCPR),
the prohibition on arbitrary detention (art 9 of the ICCPR) and the right to health (art 12 of the ICESCR).
The PJCHR found that the government had not demonstrated the reasonableness and proportionality of the
limitations placed on those rights, but stopped short of recommending that the legislation be amended. This report
preceded the 2013 federal election, but it is unlikely that it had any impact on the election given that both parties
supported this curtailment of rights of an unpopular minority.
The two new mechanisms introduced by the Human Rights Framework are aimed at encouraging greater
compliance with human rights by Commonwealth Government actors at the same time as promoting greater
accountability. This laudable aim is undermined when the government uses technical grounds to justify its failure
to present Statements of Compatibility in regard to legislation that clearly limits its human rights obligations.
While our system of parliamentary government is relatively strong, it can be argued that, at least in the past,
Parliament has not consistently demonstrated sufficient competence in fulfilling its role as the primary institution
for protecting human rights in Australia. Only time will tell whether the new PJCHR and system of statements of
human rights compatibility will be sufficiently robust to ensure that human rights are respected and promoted
throughout the legislative process. One indicator is whether Parliament is capable of giving greater protection to
minorities who presently look to the courts and the common law for human rights protection because the courts
are not influenced by the democratic pressures of acting in the best interests of the majority. In devising the Human
Rights Framework , the Rudd/ Gillard ALP Government rejected the Brennan Report’s key recommendation of a
federal legislative Bill of Rights on the ground that such a Bill would be divisive: this reluctance to increase the
judicial role in the protection of rights is apparent on both sides of Parliament.
In regard to the role presently performed by the courts in the protection of human rights, the Human Rights
Framework noted the rules of statutory interpretation found in the common law:
In the event of ambiguity, the courts construe legislation consistently with fundamental rights unless Parliament
has expressly indicated a contrary intention. Similarly the courts construe ambiguous legislation on the basis that
it is presumed that Parliament does not intend to breach Australia’s human rights obligations.
11
The next section considers what is meant by the term ‘fundamental rights’ and how the courts use common law
presumptions of statutory interpretation to protect human rights.
Common law protections
The Australian courts have held that the common law contains a range of protections of rights and freedoms. A
non-exhaustive list includes the following: the privilege against self-incrimination; legal professional privilege;
access to the courts; access to legal counsel when an indigent person is accused of a serious crime; immunity
from interference with vested property rights, including native title rights; immunity from deprivation of liberty except
by law; freedom of speech and movement; and procedural fairness when affected by the exercise of public power.
These protections are of ‘freedoms’ rather than ‘rights’ because they are not actionable unless argued in the
context of an actionable wrong, such as interference with one’s liberty or property. On the common law privilege
against self-incrimination, Murphy J explained in Hammond v Commonwealth :
The privilege against self-incrimination is part of our legal heritage where it became rooted as a response to the
horrors of the Star Chamber. In the United States it is entrenched as part of the Federal Bill of Rights. In Australia
is it part of the common law of human rights. … the privilege is presumed to exist unless it is excluded by express
words or necessary implication, that is by unmistakeable language.
Here Murphy J is discussing the common law statutory presumption that legislation is construed consistently with
fundamental rights, which has become known as ‘the principle of legality’. The presumption is that Parliament
does not intend to curtail common law rights and freedoms unless such an intention is manifested by Parliament
through the use of unambiguous language. In its unanimous joint judgment in Coco v The Queen the High Court
explained:
The insistence on express authorization a fundamental right, freedom or immunity must be understood as a
requirement for some manifestation or indication that the legislature has not only directed its attention to the
question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined
upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere
with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous
language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question
because, in the context in which they appear, they will often be ambiguous on the aspect of interference with
fundamental of an abrogation or curtailment of rights.
Accordingly, where legislation is ambiguous or unspecific, then the courts read it subject to common law rights
and freedoms. If Parliament intends to curtail common law rights and freedoms, it must be specific and clear in its
intentions. Given the establishment of the PJCHR, such explicit language should trigger scrutiny and produce a
level of political debate as well as media attention.
The presumption articulated by the High Court in Coco v The Queen has been cited in numerous cases, including
Al-Kateb v Godwin . 58 In this case the presumption was important in the three separate opinions that dissented
from the majority of the High Court. 59 The case concerned the plight of a stateless Palestinian asylum seeker,
Ahmed Al-Kateb, who was born in Kuwait. When Mr Al-Kateb’s application for asylum in Australia was denied
following four years of detention, he agreed to be deported, but this was frustrated when no country was willing to
accept him. The issue was whether, in these circumstances, s 196 of the Migration Act 1958 (Cth) required Mr AlKateb to be held in indefinite detention. Section 196 states that a person must be detained unless they are removed
from Australia, deported or granted a visa. In this case, the minority judgments held that the legislation would need
to be clearer if it sought to permit the indefinite detention of people in Mr Al-Kateb’s situation contrary to the right
to personal liberty. The majority disagreed, finding the legislation to be clear and unambiguous. The outcome of
this case is that Parliament can indefinitely deprive people such as Mr Al-Kateb of their liberty as long as the
legislative intention is clear and the purpose of the detention is non-punitive. In the majority, McHugh J stated:
As long as the detention is for the purpose of deportation or preventing aliens from entering Australia or the
Australian community, the justice or wisdom of the course taken by the Parliament is not examinable in this or any
other domestic court. It is not for courts , exercising federal jurisdiction, to determine whether the course taken by
Parliament is unjust or contrary to human rights . 60
McHugh J’s words show that in the sphere of human rights Parliament is supreme, subject to the Constitution’s
few rights provisions and structural guarantees. The only role for the courts is in situations where Parliament’s
intention is ambiguous. Some other relevant presumptions of statutory interpretation include the presumption
12
against retrospectivity of certain laws that affect substantive rights, and the presumption that Parliament intends
to legislate consistently with its international law legislative provisions that implement international human rights
treaties will be read consistently with the relevant treaty.
For some commentators, these common law presumptions effectively offer a bill of rights: for example, former
New South Wales Chief Justice James Spigelman refers to them collectively as a ‘common law bill of rights’ and
he argues that they enjoy a quasi-constitutional status. 62 It is, however, difficult to share Spigelman’s optimism
about the scope of the common law protection of human rights. The common law is a limited vehicle for human
rights protection for a number of reasons. First, common law rights and freedoms can be easily extinguished by
Parliament. For example, the ASIO Legislation Amendment (Terrorism) Act 2002 (Cth), mentioned above, partly
extinguishes the privilege against self-incrimination, as there is clear legislative intention to remove the right to
remain silent. 63 Second, it is unclear as to what rights are fundamental at common law. Spigelman asserts that:
‘What is to be regarded as a “fundamental right, freedom or immunity” is informed by the history of the common
law.’ 64 The history of the common law does not fill one with confidence: up until the late 19th century in Australia,
the common law was actively involved in discrimination in that it denied legal rights to women, in particular the
status of legal personhood. 65 Indeed, the common law has a history of protecting a narrow set of rights –
predominantly property rights – by strictly construing penal and tax statutes, but such an approach has not been
applied to statutes interfering with personal liberty. 66 Despite this sketchy record, the common law is often relied
upon by human rights advocates because other remedies are scarce or absent.
Another area of the common law where we can find a measure of human rights protection is administrative law,
which, as explained in Chapter 7, protects the right to challenge government decisions. More specifically, it
protects the right to procedural fairness in that all decisions made by government officials and Ministers must be
made lawfully, and those affected by a decision must be given a proper hearing. However, there is no general
requirement that government decisions be compliant with human rights. The exception to this is procedural, in that
a decision maker must give an affected person an opportunity to argue why the decision should comply with a
human rights treaty ratified by Australia if the decision maker does not intend to comply.
One area of the common law often overlooked in the sphere of human rights law is the private law of torts, which
deals with interpersonal relations. Various human rights – such as the right to life, liberty and security, and freedom
from torture, slavery and servitude (arts 6 and 7 of the ICCPR) – intersect with the tort actions of trespass and its
sub-categories of assault and battery. Similarly, the tort of false imprisonment intersects with the right to be free
from arbitrary detention found in art 9 of the ICCPR. While tort law is designed to protect individuals and their
property, it differs from human rights law in that it is remedial in nature – it is concerned with harm suffered rather
than prescribing standards of treatment. In the sphere of private tort law, however, common law protections
become seen as ‘rights’ because in the context of interpersonal relationships they are justiciable and binding in
nature.
At a broad level, international human rights norms can be influential in the development of the common law, as
Chapter 11 outlined. In Mabo v Queensland (No 2) Brennan J stated:
The common law does not necessarily conform with international law, but international law is a legitimate and
important influence on the development of the common law, especially when international law declares the
existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of
civil and political rights demands reconsideration.
Brennan J then qualified this statement by explaining that the common law could not be developed in such a way
as ‘to fracture a skeletal principle of our legal system’. 69 Brennan J’s words in Mabo make it clear that human
rights are not one of the ‘skeletal principles’ of our common law system. However, the 2009 extra-curial writings
of Chief Justice French indicate that there is scope for the common law to be developed so as to intersect and
converge with international human rights standards articulated in the UDHR and the ICCPR.
Given the inherent weaknesses of the common law, as outlined above, it would be unwise to depend on the
common law as a key form of human rights protection. While the principle of legality is an important means of
judicial protection of human rights, the case of Al-Kateb shows that, in the absence of a Bill of Rights, courts have
no role in protecting human rights where Parliament is explicit in its abrogation of rights, even where it leads to
dire consequences such as indefinite detention. Furthermore, the highly opaque and nebulous nature of the
common law rights means that the process of identifying and protecting fundamental rights is one necessarily
13
involving lawyers, the courts and expensive litigation. This system of protection is difficult to access and even
harder to fathom for those without resources or legal training.
The next section considers the other institutions in Australia that have the dual role of assisting the Parliament and
the Executive in protecting human rights while monitoring the government’s compliance.
Independent oversight institutions
Currently at the federal level, government institutions can, unless there is legislation to the contrary, act
inconsistently with Australia’s international human rights obligations with impunity. These institutions include
government departments and agencies, public officials and the public service. There are few independent
institutions to monitor Australia’s compliance with human rights. The main one is the Australian Human Rights
Commission (AHRC), although the Commonwealth Ombudsman, Privacy Commissioner and the new National
Security Legislation Monitor and Information Commissioner also play a role. As Chapter 7 explained, although
they are independent, these institutions form part of the federal Executive.
In 1981 the Federal Government established the first Human Rights Commission. Over time the name 71 and
functions of the Commission have changed. From 1981 to 1995, one of its main functions was to conciliate and
hear complaints under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (renamed the
Australian Human Rights Commission Act 1986 (Cth) ( AHRC Act )), the Racial Discrimination Act 1975 , the Sex
Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth). However, following the case of
Brandy v Human Rights and Equal Opportunity Commission 72 (in which the High Court found that the
Commission was exercising federal judicial power in breach of Chapter III of the Constitution), the Commission
can no longer make conclusive determinations: all discrimination cases are now heard by the Federal Court and
the Federal Magistrates Court. The effect of this change was to make discrimination hearings more formal, but
also to bring discrimination cases into mainstream legal jurisprudence.
The AHRC is chiefly involved with promoting rights articulated in the international instruments annexed to the
AHRC Act ; 73 in reviewing and monitoring legislation, particularly anti-discrimination legislation; and in reporting
to the federal AttorneyGeneral as to whether new law or policy is necessary. The President of the AHRC can also
investigate and conciliate cases under federal anti-discrimination legislation. Under the AHRC Act , complaints
can be made to the AHRC about a government department where the matter cannot be resolved through
conciliation. In this situation, the AHRC reports to the Attorney-General as to its recommendations for action, and
in practice this report is usually tabled in Parliament. For example, the AHRC may recommend that the Federal
Government compensate victims of human rights breaches because a government department has breached their
rights under the ICCPR, which is annexed to the AHRC Act . There is, however, no requirement that Parliament
respond to these reports or even that it table them. In addition, the AHRC can be asked by Parliament or the
government to review policy and legislative proposals, but this has never occurred. The AHRC can also intervene
in court cases or coronial inquests if given leave by the court, but such interventions are rare, and overall they
have had little impact on government policy. In contrast, the UK’s Equal Opportunity Commission has the power
to initiate and sponsor litigation. While there is certainly scope for the AHRC to conduct a stronger form of
monitoring, Parliament and government appear wary and unwilling to allow it to fulfil its potential in effectively
overseeing compliance with Australia’s international human rights obligations.
In its 2009 report, the Brennan Committee 74 recommended that the President of the AHRC be appointed
alongside the Commonwealth Ombudsman as a permanent member to the Administrative Review Council so as
to reflect the increasing significance of human rights in administrative decision-making processes (the
Administrative Review Council gives policy advice to the Federal Attorney-General in regard to the system of
administrative law, and its reports are tabled in Parliament). The government accepted this recommendation, thus
ensuring that human rights considerations are able to influence the future direction of administrative law in
Australia. However, the government did not accept the Brennan Report’s recommendation that human rights be
made a relevant consideration in the making of all government decisions under the Administrative Decisions
(Judicial Review) Act 1977 (Cth), which would have brought the fields of human rights law and administrative law
one step closer together. 75 Furthermore, the government did not institute the Brennan Report’s recommendation
that all federal government departments be required to report on human rights compliance in their annual reports,
a feature of the ACT scheme of human rights protection that is explained below.
The Commonwealth Ombudsman is another institution broadly involved in monitoring human rights in that the
Ombudsman investigates maladministration by government. Following international criticism of Australia’s
14
treatment of asylum seekers and terrorism suspects, as well the 10-month detention (in immigration detention) of
a mentally ill Australian permanent resident, Cornelia Rau, 76 the Commonwealth Ombudsman’s powers have
been expanded to include the power to review cases of immigration detention and detention under anti-terrorism
legislation and to report on these cases to Parliament. Ultimately, however, the Ombudsman only has the power
of identifying problems and bringing them to the attention of Parliament and the electorate through making
recommendations. A determination or recommendation of the Ombudsman has no effect on any law, policy or
government decision. Notwithstanding, although the Ombudsman has no formal powers of enforcement,
Parliament shows serious regard for the Ombudsman’s recommendations and generally acts upon them.
In 2010 the Federal Government established two new offices. The first was the Office of the Independent National
Security Legislation Monitor, which was set up to conduct an independent review of Australia’s counter-terrorism
laws. This move followed recommendations of two parliamentary committees, as well as the judicial inquiry called
by the government into the Haneef case. 78 The aim of this new statutory office is to provide systematic and
regular reports to Parliament as to the impact and operation of counter-terrorism laws, particularly in regard to
effectiveness and accountability, and their consistency with Australia’s international obligations under human
rights treaties. This supplements the work of the Inspector General of Intelligence and Security, who scrutinises
the activities of the Australian intelligence community, including ASIO, and sits in on the first day of questioning
by ASIO of a person who is in detention.
The second independent agency established in 2010 was the Office of the Information Commissioner, which was
set up to oversee freedom of information and privacy matters. This office also houses the Freedom of Information
Commissioner and the Privacy Commissioner.
It is clear that a number of recent reforms have strengthened human rights protections in the federal Executive, in
particular the independent monitoring institutions discussed above. However, human rights would likely be better
protected in Australia if Commonwealth Government actors were guided by a human rights framework in their
decision making and service delivery. As we will see below, such an approach focused on the daily interactions
between government actors and citizens is emerging in those jurisdictions with legislative Bills of Rights.
Emerging human rights jurisprudence
Through its Human Rights Framework 81 the Rudd/Gillard ALP Government implemented a number of the
Brennan Report’s 82 recommendations to fortify our system of human rights protection. The two new mechanisms
of the PJCHR and the system of Statements of Compatibility appear to have strengthened parliamentary
processes, although it is unclear whether this has necessarily led to greater compliance. As explained above, the
government rejected the Brennan Report’s key recommendation that the courts become another avenue for
protecting human rights through performing post -legislative scrutiny in light of particular concrete facts, a role that
would complement the abstract pre -legislative scrutiny conducted by the PJCHR and Statements of Compatibility.
This would enable the courts to enjoy a formal role in the dialogue between the Parliament and the Executive in
protecting human rights; presently, as illustrated above, this role is an indirect and informal one.
In its report the Brennan Committee canvassed some of the counterarguments for such involvement by the courts;
in particular, the importance of the Judiciary remaining a completely independent institution, untarnished by
questions of a political and moral nature that are inevitably posed by human rights, and the argument that such an
arrangement may diminish parliamentary sovereignty, considered to be a cornerstone of our system (see Chapter
5). This argument regarding parliamentary sovereignty was the basis upon which the New South Wales Parliament
decided, following two separate inquiries, 83 that it was unnecessary to enact a legislative Bill of Rights as this
would undermine the supremacy of Parliament and the independence of the Judiciary. The report of the 2001
inquiry stated that it was not in the public interest ‘to hand over primary responsibility for the protection of human
rights to an unelected judiciary who are not directly accountable to the community’. 84 It needs to be emphasised
that the force of such arguments regarding parliamentary sovereignty depends on the particular design of the Bill
of Rights. As will be shown below, in regard to the Bills of Rights currently operating in Australia – namely in
Victoria and the ACT – Bill of Rights can be devised in such a way as to guarantee parliamentary sovereignty
while giving the courts a formal role in performing post-legislative human rights scrutiny.
The ACT and Victorian Bills of Rights are aimed at ensuring that primary responsibility for human rights protection
remains with, and is explicitly given to, the Parliament and the Executive by introducing a human rights culture into
the operation of government. As is explained below, these two statutory Bills of Rights transfer minimal
15
responsibility for human rights protection to the Judiciary while formally including the courts in the institutional
dialogue.
The ACT Human Rights Act 2004 (HRA) and the Victorian Charter of Human Rights and Responsibilities Act 2006
(the ‘Charter’) are in one sense ordinary statutes about statutory interpretation, as they oblige decision makers to
interpret ACT or Victorian laws to be consistent as far as possible with human rights. Both the HRA and the Charter
are based on the parliamentary rights model found in the UK and New Zealand, in that they do not give courts the
power to strike down inconsistent legislation. The focus of these statutory Bills of Rights is not on the courts and
possible remedies that can be gained there; instead, these instruments take a wholeof-government approach,
building human rights thinking into policy making and the legislative process before matters go to the courts. They
follow what is known as the ‘dialogue model’, in that their aim is to encourage dialogue between the three arms of
government in relation to the promotion and protection of human rights.
In many respects, the HRA and the Charter are very similar. For example, both contain a list of mostly firstgeneration rights; that is, civil and political rights drawn from the ICCPR. Both the HRA and the Charter also have
a general limitation clause, which recognises that rights are subject to justifiable limits. For example, s 7(2) of the
Charter provides:
A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free
and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors
including –
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
Section 7(2) places the onus on the government to satisfy these conditions in order for a limitation to be placed on
Charter rights. Thus, when a legislative provision limits one of the rights set out in the Charter, the government
must be able to establish that the limits are reasonable and that they can be justified according to the conditions
set out in the provision. This process is similar to the assessment expected by the PJCHR to be set out in
Statements of Compatibility accompanying Bills in Federal Parliament.
As the larger of the two jurisdictions to have enacted a Bill of Rights, Victoria provides a valuable case study.
Hence the next section examines the operation of the Victorian Charter in some detail so that it becomes clearer
how a statutory Bill of Rights differs from a constitutional Bill of Rights, the model with which many Australians are
more familiar through the influence (both positive and negative) of the US Bill of Rights.
The Victorian Charter: a case study
The Legislature under the Charter
Like the new federal system of Statements of Compatibility, the Charter requires that when a member introduces
a Bill into Parliament, the Bill must be accompanied by a statement of human rights compatibility. Under the
Charter, this statement must set out the purpose of the Bill, a statement about how the Bill affects the relevant
rights (here the Charter rights), and whether the right is justifiably limited under s 7(2) of the Charter. Thus, if a Bill
intends to limit any right set out in the Charter, the Statement of Compatibility would need to explain how the Bill
satisfies the conditions set out in s 7(2).
In addition, as at the federal level, a parliamentary committee – here the Scrutiny of Acts and Regulations
Committee (SARC) – scrutinises each new piece of legislation and reports to Parliament as to whether it is human
rights compatible, specifically with the Charter. In undertaking this duty, the SARC considers each Statement of
Compatibility so as to ensure that they are all adequate and, where this is not the case, the SARC draws
Parliament’s attention to the inadequacy. As is clear, this committee differs from its federal counterpart, the
PJCHR, in that it was not specifically established to scrutinise human rights compliance.
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So far the SARC has been relatively active. For example, in regard to the introduction of the Summary Offences
and Control of Weapons Acts Amendment Bill 2009 (SOCWAA Bill), which empowered the police to apply
extensive search powers to children, the SARC was critical of the government’s Statement of Compatibility. It
requested that the government provide greater detail on the nature and extent of the incompatibility, and it
generally expressed concern that the SOCWAA Bill authorised the police to exercise powers that are incompatible
with the Charter. Many of the SARC’s concerns drew on submissions received from the public and from other
bodies. The SARC then requested the relevant Minister to respond to its concerns and published his response. In
some instances, the SARC’s comments have led to amendments, but this was not the case with the SOCWAA
Bill, which was passed before the Committee received the Minister’s response. Thus, while the SARC has been
active, its concerns have not always been given adequate consideration.
The equivalent mechanisms to these in the HRA came under the spotlight in 2005 when the ACT wanted to
introduce mirror legislation to complement the Commonwealth’s Anti-Terrorism Act (No 2) 2005 . As the
Commonwealth legislation had bipartisan support in Federal Parliament and the government controlled the
Senate, little attention was initially given to the human rights impact of this legislation at the federal level. However,
because of the HRA, unlike the position in any other Australian jurisdiction, the ACT Government had to reveal its
proposed legislation to the public and allow for scrutiny of the legislation’s human rights safeguards. One
consequence is that the human rights safeguards in the ACT’s anti-terror legislation are stronger than those in
other jurisdictions.
In Victoria, there is evidence that the Charter is being considered in the legislative drafting process in order to
prevent and remedy human rights abuses.
The Executive under the Charter
The Charter is designed to have the greatest impact on the Executive. Under s 6(2), the Charter applies directly
to ‘public authorities’. Section 4 defines public authorities as including government departments, public officials,
prison authorities, the police, local councils, and, when acting in an administrative capacity, courts and tribunals.
Section 38(1) sets out the obligations on public authorities: ‘It is unlawful for a public authority to act in a way that
is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human
right.’ Subsection (2) says that the obligation to act in a way that is incompatible with a human right does not apply
where, as a result of a law (a Commonwealth law or other law), the public authority could not have acted differently.
There is also an exemption for religious bodies. In 2006 and 2007, the Victorian Government organised training
programs, particularly for key agencies – such as the police, the prison service, the Department of Human Services
and the Department of Justice – to ensure that they were fully prepared to act compatibly with the Charter.
Section 38 is a critical provision as it affects the development of government policy, the drafting of regulations, the
delivery of services, and decision-making processes. For example, there is evidence that in the Charter’s first five
years it has led both the police force and prison authorities to initiate reforms in line with the Charter. 87 It has also
affected the development of local government planning, the work of disability service providers, and the approach
taken by health care facilities in their treatment of patients. 88 Furthermore, community-based advocacy and health
centres are using the Charter in order to assist vulnerable sections of society to articulate their human rights when
interacting with government actors.
The Charter gives specific roles to two executive bodies that could be considered part of the ‘integrity branch’ of
government, introduced in Chapter 7. The first is the Victorian Equal Opportunity and Human Rights Commission,
which is characterised as an ‘independent monitor’ of the Charter. 90 Under s 41 of the Charter, the Commission
must examine the operation of the Charter and its interaction with other law, both common law and statute, and
report annually to the Attorney-General on any incompatibility. Such reviews have led to various amendments
being made to legislation to ensure that it is human rights compatible. 91 The Attorney-General can also
specifically request the Commission to review the effect of legislation and common law on human rights. The
Attorney-General must then table these reports in Parliament so that they are accessible both to Members of
Parliament and the community. In addition, under s 40, the Commission has an unqualified right to intervene in
court cases raising Charter issues. The courts have a duty to notify the Commission whenever a question of law
arises that relates to the Charter and whenever a court is considering making a declaration of inconsistent
interpretation. More broadly, the Commission has a primary role in human rights training and education in relation
to the Charter.
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The second oversight body is the Victorian Ombudsman, upon whom the Charter confers the power to investigate
whether any administrative action is incompatible with a human right set out in the Charter. This is set out in the
Schedule to the Charter, which amends the Ombudsman Act 1973 (Vic). The nature of such investigations and
how they have been resolved are set out in the Ombudsman’s annual report to Parliament.
Overall it is clear that the Charter strengthens these two independent bodies so that they can play a greater role
in monitoring all three arms of government in regard to human rights compliance. Note however that although the
Victorian Equal Opportunity and Human Rights Commission has greater powers than the AHRC – as it has the
unqualified right to intervene in cases – it does not have the AHRC’s power to recommend that the government
compensate victims of human rights breaches. In addition, it does not enjoy broader power to hear complaints
under the Charter.