Human Rights Protection

Australia is the only liberal democracy in the world that does not have a Human Rights Act

A Human Rights Act is a comprehensive legal framework for appealing against breaches of human rights in Australia. Without it, it is very difficult to enforce human rights.

Although Australia is a signatory to several Human Rights Treaties, including the Universal Declaration of Human Rights UDHR and the Declaration on the Rights of Indigenous Peoples UNDRIP, it has not wholly incorporated theses treaties into domestic law.

This means that the only avenue to seek remedies for breaches of certain rights is to make a complaint to a United Nations Committee. Even then, the Australian Government may fail to act to remedy the breach.

Photo: Heide Smith

In the absence of a comprehensive legal framework, such as a Human Rights Act, Australian governments have in the past and continue to behave in a way that breaches human rights.

Important examples of when Australian Governments have breached Human Rights:

Aboriginal and Torres Strait Islander people have experienced some of the worst breaches.

The forced removal of children from their families (the Stolen Generations) contravened UDHR Article 12: Freedom from Interference with Privacy, Family, Home and Correspondence;
The Northern Territory Emergency Response contravenes UDHR Article 2: Freedom from Discrimination; the International Convention on the Elimination of Racial Discrimination; the International Covenant on Economic, Social and Cultural Rights Article 1: Right to self-determination; and most importantly Australia’s very own Racial Discrimination Act which was suspended by the Federal Government and remains only partially reinstated;
Aboriginal people were not allowed to vote until 1969, which contravened UDHR Article 21: Right to participate in government and in free elections; and the International Covenant on Civil and Political Rights Article 25: Right to vote;

What would happen if we had a Human Rights Act

If Australia was to have a Human Rights Act, the Federal Government would have to consider how laws and policy impact on human rights. Courts would be empowered to identify human rights breaches and recommend remedies. Under a statutory dialogue model with a legislative (not constitutional) bill of rights, Parliament would then have to change laws or policies, or justify its decision to continue a non-compliant law or policy. Accountability would be significantly enhanced.

A Human Rights Act would be further strengthened by the guarantee in the Constitution of the right equality and non-discrimination.

Alternatively, human rights could be wholly protected within the Constitution, however this would require substantial changes to the Constitution and would need to gain majority support at a referendum.

Australia debates human rights protection

In 2009 a National Human Rights Consultation was conducted by an independent committee chaired by Father Frank Brennan.

The community actively engaged in the consultation providing in excess of 35,000 submissions suggesting that the time was right for changes to further protect and promote human rights.

Based on the consultations the Committee recommended that the Parliament enact a national Human Rights Act.

Despite the recommendation, the Government proposed a Human Rights Framework in May 2010, focused on enhancing human rights education and parliamentary engagement with human rights.

Following the announcement, a Senate Legal and Constitutional Affairs Legislation Committee inquiry was held into the Human Rights (Parliamentary Scrutiny) Bill. ANTaR subsequently made a submission to the Inquiry.

The report from the Senate Committee Inquiry, released in January 2011, made no significant recommendations to change the legislation but recommended the Committee review the definition of Human Rights to ensure the seven core UN conventions are an appropriate basis for the definition and consider whether the Australian Constitution, the common law and the statues of parliament should be articulated in the definition.

ANTaR supports the call for a national Human Rights Act. We acknowledge that the Government has committed to reviewing the Australian Human Rights Framework in 2014 and we urge that the terms of reference of this review include consideration of a Human Rights Act.

UN review of Australia’s human rights record

In March 2010, a UN Special Rapporteur delivered a Report on the situation of human rights and fundamental freedoms of Aboriginal and Torres Strait Islander peoples in Australia.

The report observed, that having suffered a history of oppression and racial discrimination that Aboriginal and Torres Strait Islander peoples today endure severe disadvantage compared with non-Indigenous Australians.

It recommended a more integrated approach to addressing Indigenous disadvantage across the country, one that not only promotes the social and economic well being of Aboriginal and Torres Strait Islander peoples but that also advances their self determination and strengthens cultural bonds.

It also recommended that the Government fold into its initiatives the goal of advancing Indigenous self determination, in particular by encouraging Indigenous self-governance at the local level.

ANTaR calls on the Australian Government to implement each of the Special Rapporteur’s recommendations in real partnership with Aboriginal and Torres Strait Islander Peoples

In January 2011 Australia appeared before the United Nations Human Rights Council’s Working Group for an important review of Australia’s Human Rights – the Universal Periodic Review UPR.

Key recommendations from the review were; addressing racism, the rights of Aboriginal and Torres Strait Islander peoples, including a review of all legislation, policies and programmes that affect Aboriginal and Torres Strait Islanders, in light of the Declaration on the Rights of Indigenous Peoples (UNDRIP), the Human Rights Act and a re-design of the Northern Territory Emergency Response (NTER) measures in direct consultation with Aboriginal and Torres Strait Islander peoples.

Australian Human Rights Commission President Catherine Branson QC welcomed the recommendationsas well as a series of voluntary pledges made by the Australian Government in the UPR process.

The Government is due to respond to the recommendations in June 2011.

ANTaR calls on the Australian Government to implement each of the UN’s recommendations in real partnership with Aboriginal and Torres Strait Islander Peoples