Constitutional and Administrative Law Bar Association
5 July 2012, London
Australia is exceptional among Western democracies in not having a Bill of Rights in its Constitution, nor a national statutory Charter of Rights. A recent academic article in the European Human Rights Law Review1used as a subheading the well-known Australian saying, 'she'll be right mate', intending to convey what the authors described as 'Australia's lukewarm attitude towards human-rights specific legislation.'2 There have been frequent criticisms of Australia's perceived exceptionalism in this respect and laments about its relegation to a backwater, while the great broad river of international human rights jurisprudence sweeps by. It is not my purpose to answer those criticisms, but rather to say something about how the Australian Constitution, statutes and the common law are applied to the protection of rights. In so doing, I will make some comparisons with the United Kingdom.
The topic is timely. On 30 September 2009, the Australian National Human Rights Consultation Committee delivered a report to the Attorney-General of the Commonwealth following an extensive national consultation process addressing three questions:
. which human rights (including corresponding responsibilities) should be protected and promoted?
. are those human rights currently sufficiently protected and promoted?
. how could Australia better protect and promote human rights?
Conscious, no doubt, of the content of the debate that took place during the consultation process, the Committee first recommended that '... education be the highest priority for improving and promoting human rights in Australia'. It also proposed an audit of all federal legislation for compliance with Australia's international human rights obligations.3 The Committee sought an amendment to the Administrative Decisions (Judicial Review) Act 1975 (Cth) to make Australia's international human rights obligations a relevant consideration in government decision-making.4 Absent a Federal Human Rights Act, the Committee proposed that the Acts Interpretation Act 1901 (Cth) be amended to require that, as far as it is possible to do so consistently with the legislation's purpose, all federal legislation be interpreted consistently with a definitive list of Australia's human rights obligations.5 The Committee also recommended that Australia adopt a Commonwealth Human Rights Act6 to be based on the 'dialogue' model7reflected in the Human Rights Act 1998 (UK) and in human rights legislation in the Australian Capital Territory and the State of Victoria.
The Government responded on 21 April 2010 by announcing what it called 'Australia's Human Rights Framework'. It did not include a Human Rights Act or Charter. The Attorney-General said:
The Government believes that the enhancement of human rights should be done in a way that as far as possible unites, rather than divides, our community.
Key features of the national human rights framework were enhanced government support for human rights education across the community, including in primary and secondary schools, the development of a new national action plan on human rights in conjunction with the States and Territories and non-government organisations, the introduction of legislation to establish a Parliamentary Joint Committee on human rights to provide greater scrutiny of legislation and the review of legislation policies and practices for compliance with the seven core United Nations human rights treaties to which Australia is a party.
The Commonwealth Parliament has now enacted the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). The Act established a Parliamentary Joint Committee on Human Rights8 with the following functions:
(a) to examine Bills for Acts and legislative instruments, that come before either House of the Parliament for compatibility with human rights, and to report to both Houses of the Parliament on that issue;9 (b) to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue;10 (c) 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 the Parliament on that matter.11 That Act also requires that any Bill introduced to the Parliament be accompanied by a Statement of Compatibility, which must include 'an assessment of whether the Bill is compatible with human rights'.12 The Act defines human rights as the rights and freedoms recognised or declared by the seven core United Nations human rights treaties as they apply to Australia. They are by reference to acronyms: the ICCPR, the ICESOC, CERD, CEDW, CAT, the CORC and the CORPD. As Professor Kinley and Christine Ernst observe in their recent paper:
The significance of this definition cannot be overstated. Its practical effect is to require lawmakers to assess human rights compatibility by reference not to a closed list of rights, but to the well over 100 rights and freedoms contained in the seven treaties listed.13 On 22 September 2011, the Attorney-General and the Minister for Finance and Deregulation launched a public discussion paper which foreshadowed the consolidation of Commonwealth anti-discrimination laws into a single Act covering discrimination on the grounds of race, sex, marital status, pregnancy, sexual orientation, age and disability.
It is important to observe that Australia already has in place a number of statutes at Commonwealth and State level prohibiting discrimination on grounds of race, sex, age and disability; the Commonwealth statutes by operation of s 109 of the Constitution would render inoperative any inconsistent State law. These statutes include:
. the Racial Discrimination Act 1975 (Cth);
. the Sex Discrimination Act1984 (Cth).
Most States and Territories protect against discrimination on the basis of gender identity. Victoria14 and the Australian Capital Territory15 have statutory Human Rights Charters which apply interpretive rules to their statutes and provide for declarations of incompatibility.
An important point of difference between the United Kingdom and Australia relevant to this area generally is the existence in Australia of a written Constitution. That Constitution does not contain a Bill of Rights, but it is an important source of rights protection. Against that background, it is desirable to look to the larger context provided by the Constitution and the common law in connection with human rights protection in Australia. That larger context cannot be disentangled from Australia's history and its evolution as a nation.