“People who argue for a Charter of Rights would point to the fact that it offers express clear protection. That it is a way of making human rights accessible to people and it is a way of educating people about what our rights are. It is a way of providing clear guidelines to government – more than guidelines because they’re enforceable – but a clear outline to government of what’s expected of them and citizens with clear remedies if their rights are breached.

The other side, [those who argue against a Charter of Rights], is that if you actually write your rights down in that way, you actually restrict them, because you’re limiting them to what’s written in the charter.  Where charters really have challenges is when it comes to determining where the balance lies between conflicting rights. So, when you put a Charter into place, what you’re really saying is, who gets to make the final decision about conflicting rights and how we strike the right balance. In our system at the moment, that’s the Australian Parliament. With a Charter of Rights, that becomes the Australian Judiciary. So those questions are transferred from the Parliament to the Courts.

That is really where the debate lies. Where do you want that final decision to rest.” 

Extended discussion on whether Australia should have a Human Rights Act

A Bill of Rights, Charter of Rights or Human Rights Act outlines the fundamental rights and freedoms which individuals are entitled to. If the rights are constitutionally enshrined, they cannot be overridden by law or government; if, however, they are contained within a Commonwealth or State statute, rights may be overruled by subsequent legislation due to the principle of parliamentary sovereignty.

As with any piece of legislation, the courts would be responsible for upholding, interpreting and applying the provisions, or rights, contained in such an Act.

This means that if a human right is encroached upon, the individual is empowered to bring their case before the Court. Here, the Judiciary would determine whether a human right was in fact breached, where the balance should lie between the rights of individuals and the public good, and, subsequently, what remedies are available to the plaintiff. If the breach was Parliamentary, i.e., Parliament enacted legislation that was inconsistent with constitutionally enshrined rights, the Court may strike down the offending legislation as invalid; if it was a breach by an individual/body, they will be sentenced accordingly.

History of Debates in Australia about Human Rights Acts

The drafters of the Australian Constitution believed that the Common Law and the principle of ‘responsible government’ would sufficiently empower people to protect their fundamental rights and freedoms. They believed that the Constitution’s underlying assumption of the division of powers, separation of powers and the Rule of Law would offer greater protection than a designated Bill of Rights.

According to the principle of ‘responsible government’, if a government loses the confidence of parliament, e.g., by violating human rights, the ministers, including the Prime Minister would be accountable to the elected parliament who could replace them with freshly elected representatives who would make different laws.

In essence, the drafters of the Constitution believed that the best protection for human rights in Australia could not be achieved by the creation of a Charter of Rights but rather, by a long-standing tradition of respecting those rights by the people themselves.

The Human Rights Commission, established in 1981, serves as a watchdog for human rights in Australia. However, the debate over instituting a national Bill of Rights has been lengthy and persistent. Notably, there have been two attempts to enshrine human rights in the Constitution. First, during the 1944 Democratic Rights Referendum, and second, during the 1988 Rights and Freedoms Referendum. Both were unsuccessful.

There have also been several attempts to enact a Federal/Commonwealth Human Rights Act. For example, the Human Rights Bill 1973 introduced under the external affairs head of power by the Whitlam Government. However, the passage of this Bill ceased with the double-dissolution of the Whitlam Government.

More recently, the Australian Capital Territory, Victoria and Queensland have successfully enacted state-based human rights legislation in 2004, 2006 and 2019, respectively.

In 2023, the Attorney-General of Australia referred to the Parliamentary Joint Committee on Human Rights an Inquiry into Australia’s Human Rights Framework. This Inquiry will consider whether the Australian Parliament should enact a federal Human Rights Act.

Summary of Both Sides of the Debate

Yes

Offers express and clear protection of rights

• A clear and unified human rights framework generated from Australian values may improve clarity, empowering individuals to advocate for their rights. This could remedy the shortfalls of the current system and enhance the culture of respect for rights in the community and the arms of government.

Increased public knowledge about rights will increase accessibility

• The clarity provided by a written, legislative framework enables public education and engagement, as opposed to common law protections that can be lesser known by everyday people. Individuals may therefore be able to better understand and access their rights.

Creates enforceable guidelines for the protection of rights

• Public policies and legislation will be required to align with human rights standards, with the aim of increasing the accountability of the Australian Government to its citizens. Embedding procedural measures could provide legally enforceable remedies for breaches. It will also serve to align Australia’s laws and policies with the international human rights commitments it has signed and ratified.

Rights become positive in a legal sense

• Most rights are framed in negative language that prohibits actions. Legislative recognition of rights enables rights to be granted to individuals by the government, making them positive in nature. This may enhance understanding of rights.

No

Changes our system of democracy

• Australia’s current system has strong protections for many rights that other countries with Bills of Rights do not. A Bill of Rights may alter that system and the checks and balances that have successfully provided freedom and prosperity in Australia. In addition, it has been questioned if those States and Territories that have a Charter of Rights have seen better human rights protections.

An embedded legislative framework will change who decides when rights conflict

• Legislation requires interpretation by judges, and where individual and collective rights conflict, unelected judges will effectively become responsible for the final decision in creating social policy when resolving complex disputes about conflicting rights. This creates a risk of the judiciary becoming political in nature, like in the USA.

Legislation evolves at a slower rate than human rights

• Because rights are a reflection of societal values, there can be diverse opinions about what rights reflect the values and needs of a community. Legislative instruments can be slow to change, with reform relying heavily on the support of the government of the day.

Legislative recognition can serve to limit our rights to only those specified

• Under our democracy and the rule of law, Australians are free to do anything unless expressly prohibited by law. Writing down rights and freedoms, risks fostering a culture that inverts this principle, i.e., you have no rights except those explicitly granted by law.