Kirsty Magarey and Roy Jordan, Law and Bills Digest
Section
Even though Australia is party to several major human rights
treaties, there is currently no Commonwealth legislation which
directly implements two of the most important treaties, the
International Covenant on Civil and Political Rights (ICCPR) and
the International Covenant on Economic, Social and Cultural Rights
(ICESCR). Together with the Universal Declaration of Human Rights,
these treaties and their Optional Protocols, make up what is known
as the International Bill of Human Rights. Such implementing
legislation is usually referred to as a ‘human rights
act’, or a ‘charter (or bill) of rights’—a
statement of rights which is either reviewable (or even
enforceable) in the courts and against which all newly introduced
legislation has to be benchmarked. The ACT and Victoria, however,
have implemented the ICCPR by legislation in their jurisdictions.
The Commonwealth Constitution has only a small number of
enforceable human rights, such as freedom of religion, as well as
some implied rights found by the High Court, such as freedom of
political communication.
Party policies
The major political parties have differing views on the
desirability of a human rights act. The Coalition parties do not
see the need for such an act and do not mention the issue in their
policies. The former Prime Minister, John Howard, and former
Attorney-General, Daryl Williams, have stated that current
arrangements and the common law provide adequate protection. Tony
Abbott has said ‘Bills of rights are left-wing tricks to
allow judges to change society in ways a parliament would never
dare.’ The Australian Labor Party, in its 2007 National
Platform, had a commitment to establish an inquiry and consultation
process to gauge the need and support for statutory protection of
rights. The Australian Greens policy is to ‘adopt
Australia’s international human rights obligations into
domestic law and enact an Australian Bill of Rights’.
Brennan Consultation Committee
In November 2008, the Rudd Government established a National
Human Rights Consultation Committee (NHRCC), chaired by Father
Frank Brennan, to undertake consultation and report by 30 September
2009. In his submission to the Committee, shadow Attorney-General
Senator George Brandis, on behalf of the Coalition Opposition
parties, stated that ‘a statutory bill of rights is not the
best model for advancing human rights’ and instead he
recommended that expanded parliamentary scrutiny of legislation
from a human rights point of view by a new Parliamentary Committee
would be a better alternative
The Brennan Committee recommended that Australia adopt a federal
Human Rights Act, along the lines of legislation already introduced
in the Australian Capital Territory (ACT) and Victoria. The
proposed legislation would set out a list of rights drawn from
major human rights treaties, ensure that new legislation introduced
into the Parliament was compatible with the Act and provide for the
High Court to declare existing legislation incompatible with the
Act and to refer the legislation back to Parliament for possible
amendment.
One of the differences between the ACT and Victorian legislation
is that Victoria allows for an ‘override
provision’—a legislative provision which allows the
parliament to effectively exclude particular legislation from the
operation of the Human Rights Act in exceptional circumstances,
such as threats to national security or a state of emergency. The
ACT does not have a comparable provision and the question of
whether it is appropriate for any Commonwealth legislation to have
an override provision remains.
In April 2010, the Government responded to the NHRCC report by
issuing its Australia’s Human Rights Framework
document and related press releases, which included proposals to
establish a statutory Parliamentary Joint Committee on Human Rights
which would scrutinise legislation compliance with human rights
treaties and a requirement that all new legislation introduced or
tabled in Parliament be accompanied by a compatibility statement on
human rights. In addition, the federal anti-discrimination laws
would be consolidated into a single Act to remove unnecessary
regulatory overlap and make the system more user-friendly.
The Government would also create an annual NGO Human Rights
Forum to enable comprehensive engagement with non-government
organisations on human rights matters (which already occurs
informally through the Attorney-General’s Department’s
NGO Human Rights Fora), and provide the Australian Human Rights
Commission with extra resources to enable it to promote a greater
understanding of human rights across the community.
A federal Human Rights Act, which may involve the courts, was
not intended at that stage but a commitment was made to revisit the
issue in 2014.
In its 2010 election policy The Coalition’s Plan for
Real Action for Australia’s Future, the Coalition
parties pledged to ‘discontinue the Australian Human Rights
Framework’, as part of its projected expenditure savings.
Parliamentary Joint Committee on Human Rights
In June 2010 the Rudd Government introduced the Human Rights
(Parliamentary Scrutiny) Bill 2010, together with a
related bill, the Human Rights (Parliamentary Scrutiny)
(Consequential Provisions) Bill 2010. The Bills were to be a
partial implementation of the Government’s response to the
Brennan Committee report and establish the Parliamentary Joint
Committee on Human Rights. The main Bill provided for the powers,
proceedings and functions of the committee; and introduced a
requirement for statements of compatibility to be prepared for all
Bills and disallowable legislative instruments. The Bills reached
their second reading stage but lapsed in July 2010 with the general
election. The provisions of both Bills were referred to the Senate
Legal and Constitutional Affairs Legislation Committee in June
2010, which reported in July 2010 that, since both Bills had
lapsed, it would discontinue its inquiry.
It is expected that both Bills will be reintroduced into the
43rd Parliament.
Library publications and key documents
Attorney-General’s Department,
Australia’s Human Rights Framework, 2010,
http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_TheAustralianHumanRightsFramework
Parliamentary Library, Bill of Rights: Internet
Resource Guide, http://www.aph.gov.au/library/intguide/law/billofrights.htm
National Human Rights Consultation, website,
http://www.humanrightsconsultation.gov.au/
Senate Legal and Constitutional Affairs
Legislation Committee, Human Rights (Parliamentary Scrutiny)
Bill 2010 and the Human Rights (Parliamentary Scrutiny)
(Consequential Provisions) Bill 2010: Report and submissions,
Commonwealth of Australia, Senate, Canberra, 23 July 2010,
http://www.aph.gov.au/senate/committee/legcon_ctte/human_rights_bills/index.htm