Human Rights in Australian Law (HSC SSCE Legal Studies): Revision Notes

Human Rights in Australian Law

Introduction to human rights protection in Australia

In Australia, human rights protection is not found in a single document. Unlike countries such as the United States, Australia does not have a comprehensive bill of rights. Instead, human rights that correspond with internationally recognised standards are drawn from multiple sources, creating a complex framework of protection.

The key sources of human rights protection in Australia include:

• International treaties that have been incorporated into domestic law
• The Australian Constitution
• Common law developed by the courts
• Statute law passed by Commonwealth, state and territory parliaments

This multi-layered approach means that understanding human rights in Australia requires knowledge of how these different sources interact and protect various rights.

Incorporation of human rights into domestic law

Understanding treaty incorporation

When international treaties are created, countries show their agreement by signing them. However, signing alone does not make a treaty legally binding. Most treaties require ratification before they become enforceable.

Monist vs dualist systems

Countries around the world adopt different approaches to how international treaties become part of domestic law:

Monist systems are legal systems where treaties become automatically enforceable in domestic law as soon as the government ratifies them. In these countries, the words of the treaty effectively become law as if they were an act of parliament. Countries such as France and the Netherlands operate monist systems, allowing them to sign and ratify treaties simultaneously.

Dualist systems, by contrast, do not automatically make treaties enforceable in domestic law. Instead, these systems require incorporation - the process by which a country implements a treaty into domestic law through separate legislation.

Australia's dualist approach

Australia, like the United Kingdom, operates as a dualist system. This means that simply signing and ratifying a treaty does not make it enforceable in Australian courts. Parliament must pass legislation that either:

• Echoes the words and provisions of the treaty, or
• Amends existing laws to align with treaty obligations

The Australian Constitution

The Australian Constitution plays two crucial roles in protecting human rights:

1. It establishes the system of Australian government through which human rights are recognised, including the separation of powers and division of powers
2. It is the source of specific human rights, including both express rights and implied rights

Separation of powers

The separation of powers is the constitutional principle that prevents any one person or group from gaining total power by dividing governmental power between three branches:

• Legislature - elected law-makers in parliament who create laws
• Executive - government, including ministers and agencies, who implement and administer laws
• Judiciary - courts that interpret and apply the law

Separation in practice

As a Westminster system of responsible government, Australia does not have strict separation between the legislature and executive. The Constitution allows:

• Ministers to sit in parliament
• The executive to make delegated legislation

However, the High Court has consistently ruled that strict separation of the judiciary from the other two 'political' branches is a fundamental constitutional principle. This judicial independence is essential for:

• Upholding the rule of law - ensuring all people, including government, are equally subject to the law
• Protecting rights and liberties - safeguarding against abuses of power that could arise from a politicised judiciary
• Constitutional review - enabling the judiciary to strike down legislation deemed incompatible with the Constitution and the rights it contains

Division of powers

The division of powers refers to how legislative power is divided between the Commonwealth (federal) government and Australian state governments. This federal structure forms the basis of the Australian federation.

Commonwealth powers

The Commonwealth can only make laws in specific areas listed in the Constitution, primarily under s 51. These areas are known as heads of power and include:

• Currency (s $51$(xii))
• Marriage (s $51$(xxi))
• Copyright and patents (s $51$(xviii))
• Corporations (s $51$(xx))
• External affairs (s $51$(xxix))

State powers

Powers not listed in the Constitution are residual powers that remain with the states. States can choose to refer powers to the Commonwealth, as occurred with air navigation and terrorism regulation.

The external affairs power and human rights

One area that has been crucial for developing human rights in Australia is the external affairs power in s 51(xxix). This power gives the Commonwealth authority to legislate on external affairs, which includes Australia's treaty obligations.

The external affairs power has transformed Australian law by:

• Enabling Commonwealth parliament to bind states to international human rights obligations
• Allowing the Commonwealth to legislate to protect rights universally across all Australian jurisdictions

Express and implied rights in the Constitution

Unlike the United States, Australia does not have a constitutional bill of rights to comprehensively protect human rights. However, the Constitution does contain some rights protections.

Express rights

Express rights are rights that are explicitly written into the Constitution. These include:

• Freedom of religion (s 116) - protection against Commonwealth laws establishing religion or prohibiting religious freedom
• Right to vote (s 41) - the right to vote in Commonwealth elections
• Trial by jury (s 80) - the right to trial by jury in federal indictable cases
• Just terms (s 51(xxxi)) - the right to 'just terms' (fair compensation) where the Commonwealth compulsorily acquires property

Implied rights

Implied rights are rights that can be inferred through the text, structure or purpose of the Constitution. Over the past century, the High Court has interpreted the Constitution as necessarily containing certain rights, even though they are not expressly written in it.

The High Court has found that certain rights must have been intended for the Constitution to function effectively. The most significant implied right is:

Freedom of political communication - The High Court, most clearly in Lange v Australian Broadcasting Corporation ($1997$) $189$ CLR $520$, held that the Constitution contains an implied right to freedom of political communication. This is a limited type of freedom of speech necessary for Australia's system of representative and responsible government as established in the Constitution to function effectively.

Limitations of constitutional rights

Despite these protections, the Constitution's ability to protect human rights is limited:

• The number of express rights is minimal
• The finding of implied rights by the judiciary has been controversial
• Most Australian human rights are found in other sources of law

Common law

The common law - the body of law developed through court judgments over centuries - plays an important role in protecting human rights in Australia. Common law has evolved independently of government and carries authority to protect many fundamental rights.

Rights protected by common law

Many Australian statutes, particularly in criminal law, are silent on various aspects of legal procedure and rights. In these areas, it is the common law that defines and protects rights.

Development of new rights

The common law can develop new rights on a case-by-case basis when relevant matters are brought before courts.

Limitations of common law protection

While the common law provides important protections, it has significant limitations:

1. Rights are not fixed - Common law rights, regardless of how fundamental they appear, can be removed or overridden by any act of parliament

2. Reactive rather than proactive - The common law cannot be relied upon to develop new rights systematically. Rights are only defined when a relevant case is brought before a court

3. Vulnerable to legislative override - Parliament can pass legislation that removes long-standing common law rights

Statute law

Over the past half-century, a substantial body of Australian statute law has been enacted to protect human rights. Both Commonwealth and state parliaments have adopted legislation, with many laws responding to international treaty ratification, while others have been established independently.

Key human rights legislation

Some of the most important human rights legislation includes:

• Racial Discrimination Act 1975 (Cth) - prohibits discrimination on the basis of race, colour, descent or national or ethnic origin
• Sex Discrimination Act 1984 (Cth) - prohibits discrimination on the basis of sex, sexual orientation, gender identity, intersex status, marital status, pregnancy and breastfeeding
• Australian Human Rights Commission Act 1986 (Cth) - established the Australian Human Rights Commission and defines its functions
• Disability Discrimination Act 1992 (Cth) - prohibits discrimination against people with disabilities
• Age Discrimination Act 2004 (Cth) - prohibits discrimination on the basis of age
• Anti-Discrimination Act 1977 (NSW) - state-level protection against various forms of discrimination

Strengths and limitations

Courts and tribunals

In Australia, all courts and tribunals play some role in applying and enforcing human rights laws. Some courts and bodies also interpret and develop human rights law. The most important bodies are discussed below.

Australian Human Rights Commission

The Australian Human Rights Commission (formerly known as the Human Rights and Equal Opportunity Commission or HREOC) is the most significant human rights body in Australia. This independent national body was established under the Human Rights Commission Act 1986 (Cth).

Functions and responsibilities

The Commission has grown significantly since its establishment. Its current responsibilities include:

1. Complaints handling - receiving and investigating complaints about discrimination and breaches of human rights

2. Education and awareness - promoting public awareness about human rights and providing legal advice

3. Public inquiries - conducting inquiries into human rights issues and issuing recommendations

4. Policy advice - giving advice and making submissions to parliament and governments on development of laws, policies and programmes consistent with human rights

Impact and influence

The Commission has had an important influence on Australia's laws through its inquiry function.

Complaints procedures

The Commission operates two distinct complaints functions:

1. Discrimination complaints (enforceable):

The Commission can investigate many areas of discrimination, including:

• Race or ethnic origin
• Age (young or old)
• Disability
• Sex
• Workplace discrimination relating to sexual preference, trade union activity or political opinion

2. Other human rights breaches (non-enforceable):

The Commission can hear complaints about many other human rights breaches in Australian law and international human rights law.

High Court of Australia

While human rights matters may appear before state or federal courts and tribunals, the High Court is where human rights issues often become most significant. This is because the High Court has the power to:

• Set binding precedents on all other Australian courts
• Overturn state or Commonwealth legislation that is unconstitutional

Significant High Court human rights cases

The High Court has decided numerous landmark cases involving human rights:

• Croome v Tasmania - decriminalisation of homosexuality
• Lange v Australian Broadcasting Corporation - Constitutional right to freedom of political communication
• ABC v Lenah Game Meats - possible common law right to privacy
• Roach v Electoral Commissioner [$2007$] HCA $43$ - Constitutional right of all people to vote, including prisoners
• Mabo v Queensland (No 2) ($1992$) $175$ CLR $1$ - recognition of native title

The Mabo case and international law

Mabo v Queensland (No 2) ($1992$) $175$ CLR $1$ is one of the most important cases in Australian legal history. The case involved recognition for the first time of Australia's Indigenous peoples' right to title in their traditional land - a principle that became known as native title.

Controversy and criticism

The High Court's approach has not been without controversy:

• Some critics argue the court has exceeded its powers under the separation of powers doctrine
• These critics contend that expanding rights is a matter for parliament, not unelected judges
• Others defend the court's role as essential for protecting rights when parliament fails to act

The High Court's importance

The High Court is arguably the most important protector of human rights in Australia because it can:

• Be influenced by international human rights standards
• Apply those standards even without specific parliamentary legislation
• Declare legislation inconsistent or invalid
• Uphold the rights contained in the Constitution
• Continue to develop the common law

Non-government organisations

As in the international arena, numerous non-government organisations (NGOs) operate in Australia working on human rights issues. These organisations play vital roles in:

• Researching and reporting on human rights issues
• Making submissions to parliaments and law reform bodies on human rights inquiries
• Working directly with victims of rights violations
• Protecting individuals' rights
• Shaping public and political opinion
• Exposing human rights violations by governments and individuals

Important Australian human rights NGOs

The media

The media plays an indispensable role in protecting human rights through the 'naming and shaming' of governments and human rights violators. By exposing instances of human rights abuse, the media helps bring about change and has significant influence on public opinion and government action.

Media freedom in Australia

The rights of Australian reporters to disseminate information and the right of the public to receive information are not comprehensively enshrined in law:

• The freedom of political communication is protected by the Constitution (as an implied right)
• However, Australia does not yet have any general right to freedom of speech

A Charter of Rights for Australia

This chapter has shown that human rights protection in Australia is:

• Scattered across multiple sources (Constitution, statute, common law)
• In many cases fragile - most rights can be overturned by parliament passing a statute

International precedents for bills of rights

Many countries around the world have chosen to protect citizens' rights through adoption of a bill or charter of rights, which aims to restrict the power of future parliaments to reduce or infringe certain rights.

Constitutional bills of rights

Statutory bills of rights

Other countries have enacted bills of rights by statute, which are highly influential though lacking the full force of constitutional provisions. This form offers:

• Protection of a wide range of rights
• Some future flexibility
• Power for judiciary to declare inconsistent legislation as incompatible

Attempts to introduce a Commonwealth Charter

Various attempts have been made to introduce greater human rights protection in Commonwealth law, but all have failed:

• $1944$ - Labor Government attempted constitutional amendments to guarantee freedom of expression and freedom from want and fear
• $1983$ - Australian Human Rights Bill proposed but not enacted
• $1997$ - Issue raised during Constitutional Convention on making Australia a republic but not progressed

The National Human Rights Consultation ($2008-2009$)

In $2008$, on the $60$th anniversary of the Universal Declaration of Human Rights, Federal Attorney-General Robert McClelland announced the National Human Rights Consultation to examine whether Australia should adopt some form of Charter of Rights.

Consultation process

Results

Of all submissions discussing a Charter of Rights or Human Rights Act:

• 87.4% were in favour
• $12.6$% were opposed

Most submissions discussed enacting a Charter similar to the UK or New Zealand model (statutory rather than constitutional).

Government response ($2010$)

Arguments for and against a Charter of Rights

Arguments for a Charter of Rights

1. Extremely high community support - The consultation demonstrated overwhelming public support

2. Redressing inadequacy of existing protections - Current protections are scattered and fragile

3. Reflecting basic Australian values - A charter would codify values already held by most Australians

4. Protecting the marginalised and disadvantaged - Vulnerable groups need stronger protections

5. Improving government quality and accountability - A charter would require government to consider human rights in policy-making

6. Contributing to a culture of respect - Would promote human rights awareness throughout society

7. Improving Australia's international standing - Would demonstrate commitment to international human rights obligations

8. Bringing Australia into line with other democracies - Most comparable democracies have some form of bill or charter of rights

9. Generating economic benefits - Better human rights protection can improve economic outcomes

Arguments against a Charter of Rights

1. Adequacy of current protections - Some argue existing protections are sufficient

2. Undermining parliamentary sovereignty - A charter would transfer legislative power to unelected judges

3. No guarantee of better protection - A charter does not automatically ensure better human rights outcomes

4. Potentially negative outcomes - A charter might lead to unintended consequences for some rights

5. Excessive and costly litigation - Could result in increased court cases and legal costs

6. Democratic processes offer better protection - Parliament and elections are better mechanisms for protecting rights than courts

7. Major economic cost - Implementation and enforcement would require significant resources

8. Unnecessarily legalises human rights - Could transform political and moral issues into legal matters