Human rights – what do I need to know?

Should Australia have a Human Rights Act?

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Should Australia have a Human Rights Act?

The Commission supports the adoption of a statutory charter of rights (a Human Rights Act). A Human Rights Act would provide a statement of the rights that should be protected for all people in Australia. It would also set out how the rights should be protected. It would give particular responsibilities for protecting rights to the Parliament, the executive and the courts.

Over time, a Human Rights Act would assist in creating a human rights culture in Australia, especially if it was accompanied by a comprehensive education campaign. Politicians, public officials and judges would be better educated about Australia’s international human rights obligations, and would become familiar with taking human rights considerations into account in their everyday decision-making processes. Members of the Australian community would be more aware of their own human rights and the rights of others.

Depending on its specific form, a federal Human Rights Act could do some or all of the following:

  • Ensure that all new federal laws are put through a ‘human rights test’ by:

    • requiring that each bill introduced into federal Parliament be accompanied by a human rights compatibility statement

    • requiring Parliament to scrutinise each bill to ensure its compatibility with the Human Rights Act

    • requiring Parliament to publicly explain the justification if it enacts a law that is inconsistent with the Human Rights Act.

  • Ensure that federal government policies take the human rights in the Human Rights Act into account, by requiring that all cabinet submissions be accompanied by a Human Rights Impact Assessment.

  • Ensure that federal public authorities respect the human rights in the Human Rights Act by:

    • requiring them to take the rights into account in decision-making and policy-setting processes

    • requiring them to prepare internal Human Rights Action Plans

    • requiring them to report annually on compliance with the Human Rights Act.

  • Provide for the review of any federal law found to be incompatible with the Human Rights Act by:

    • giving federal courts the power to issue a declaration of incompatibility

    • requiring that all declarations be tabled in federal Parliament

    • requiring Parliament to consider whether the law in question should be changed.

  • Ensure that federal courts and tribunals interpret legislation in a manner that is consistent with the human rights in the Human Rights Act.

  • Provide individuals whose human rights under the Human Rights Act have been breached with access to remedies, which might include:

    • internal complaint handling mechanisms within federal public authorities

    • conciliation of complaints regarding human rights breaches

    • legal remedies such as an injunction or declaration

    • a cause of action in the courts

    • the right to seek reparations, including compensation where necessary and appropriate.

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