Australia is the only democratic country in the world without a charter of human rights in either legislation or the Constitution.
On 1 July the deadline for submissions will close on the federal government’s current Inquiry into Australia’s Human Rights Framework. In this Inquiry the government is seeking comments on whether the Human Rights Framework adopted by the Labor government in 2010 and abandoned by the subsequent Coalition government should be re-established and, in particular, whether this time around it should include a Human Rights Act.
Here we are in 2023 and we are being asked by the government whether Australia as a nation should have a Human Rights Act. They are asking a few other questions too, including what form such an Act might take, but these it seems are secondary to the question of whether Australians should have security on human rights in Australian law.
For many Australians the answer to this question is so obviously “Yes, of course!” that we might wonder why it even needs to be asked and why the government doesn’t just get on with it and establish full civil, political, economic, social and cultural rights for all Australians in domestic law. After all, these rights have at least in theory been available to Australians in international law for decades. So it’s difficult to impossible to see why rights that people in other countries enjoy should be withheld from Australians in Commonwealth law.
But withheld they are. Even though in official federal government policy it is acknowledged that these rights are considered to be “inherent, inalienable and universal: inherent as the birthright of all human beings, enjoyed by all simply by reason of their humanity rather than granted or bestowed; inalienable in the sense that they cannot be given up or taken away; and universal as they apply to all regardless of race, colour, gender, sexual orientation, gender identity, language, political or other opinion, national or social origin, property, birth, age or disability.”
The government’s concurrence with these principles is proven by the fact that Australia is a signatory to all the major human rights treaties made at the United Nations since we became a member in 1945 and by the fact that parliament has ratified these treaties (which formalises our nation’s consent to be bound by them). Given that, the question of whether we should have rights protected in federal legislation might appear as yet another stalling tactic. The fact that we are still mucking around with such a question after the passage of at least five decades would imply that the current government does not wish to extend human rights to Australians and it may be especially wary of opening the door to certain rights, such as the right to be protected from propaganda for war and the right to free speech, association, assembly and protest. A Human Rights Act did not feature in the Labor Party’s 2022 election platform and Labor has supported a major program of legislation since 2002 that has resulted in very significant reductions of civil and political rights. This would indicate a distinct unwillingness to introduce legislation which, if rightly worded, would have the effect of reversing this.
The Attorney General has referred this Inquiry to the Parliamentary Joint Committee on Human Rights in response to calls from the Australian Human Rights Commission for a federal Human Rights Act. The Commission is proposing a model for an Act that fosters formal dialogue between the executive government, the legislature and the judiciary in the making of laws on human rights. It is asserting that in accordance with this model, there would be “a specific ‘positive duty’ on the executive to act compatibly with human rights and give proper consideration to human rights when making decisions”.
It may shock many Australians to hear that no such duty currently exists for the federal government in Australia. Executive governments can do whatever they like in relation to human rights, regardless of how much their decisions might be at odds with their obligations under international law. So any model of legislation that actually establishes a specific positive duty to protect human rights would be a significant improvement. For instance, if an Act were designed to prohibit executive decisions that run counter to the international human rights treaties our parliaments have already ratified, we might hope that this would lessen the harms that have flowed from our unconstrained governments in policies such as those on detention of asylum seekers and children, mixing of adult and juvenile offenders as well as accused persons and convicted persons in detention centres, compensation of wrongly convicted persons, whistleblowers making genuine public interest disclosures, compensation of Indigenous peoples for theft of their lands and children, protection of Australians and others from climate change, and protection of Australians from propaganda for war. Executive decisions on these and other policies this century have resulted in a serious deterioration of Australia’s reputation. We now live in a country that has become internationally renowned as a serial abuser of human rights.
This poor reputation has been caused by the fact that Australia is the only democratic country in the world without a charter of human rights in either legislation or the Constitution.
A new Human Rights Framework with an Act at its centre will begin the process of fixing this. That said, mere legislation will not solve the problem. We need rights in the Constitution and we need government obligations to observe those rights to be likewise embedded in the Constitution. Nothing less than that will protect us.
The fact that executive governments can and do get away with serious human rights abuses is a result of the fact that Australia’s Constitution gives them permission by being silent on our rights and the government’s obligations. It does not prohibit human rights abuses by the executive government and, in frustration, the High Court has admitted on more than one occasion that it cannot protect Australians from such abuse. We need a system of law and law-making which will prevent parliaments and governments from overriding the rights it otherwise declares to be universal and inalienable. The system that will help the High Court protect Australians can only consist in constitutional enshrinement of human rights and obligations.
If Australians want to stop governments denying them the fundamental protections of international human rights laws, they might take the opportunity of this Inquiry to make a submission and call for security of human rights by means of their enshrinement in our Constitution. Nothing less than that will suffice.
For more information on why legislation (without Constitutional rights) is inadequate for protection of human rights view the submission to the Inquiry by Australian Community Futures Planning.
Editors’ note: Pearls and Irritations has long supported the introduction of a Human Rights Act. Susan Ryan, Spencer Zifcak, John Menadue and others lead an unsuccessful Human Rights campaign many years ago. They even had a draft Bill. But Kevin Rudd ran for cover. For more on this topic, we recommend: