The Charter of Rights debate: arguments for and against a Human Rights Act for Australia: HSC Legal Studies

What this dot point is asking

The final line of "promoting and enforcing human rights in Australia" is a Charter of Rights (arguments for and against), with the "learn to" statement discuss the arguments for and against a Charter of Rights for Australia. It is a genuine live debate: a parliamentary committee recommended a federal Human Rights Act in 2024, three Australian jurisdictions have one, and the 2025 HSC included a multiple-choice question on what constitutional entrenchment would mean.

A strong answer knows the two models (entrenched and statutory), the history of attempts, the evidence from the state and territory Acts and overseas, and can argue both sides before reaching a judgement.

The answer

What is a Charter of Rights?

A charter (or bill) of rights is a single document that sets out the rights a community agrees to protect and how they are enforced. There are two main models:

The statutory model is often called a dialogue model because courts and Parliament "talk" to each other: courts identify incompatibility, and Parliament decides whether to change the law.

Australia's history of attempts

• 1944: the "Fourteen Powers" referendum, which included guarantees of freedom of speech and religion, failed.
• 1973: Attorney-General Lionel Murphy's Human Rights Bill lapsed.
• 1985: the Australian Bill of Rights Bill passed the House but was abandoned after opposition in the Senate.
• 1988: a referendum to extend jury trial, freedom of religion and just terms to the states was defeated in every state.
• 2009: the National Human Rights Consultation, chaired by Father Frank Brennan, recommended a federal Human Rights Act. In 2010 the government declined, adopting a Human Rights Framework and the Human Rights (Parliamentary Scrutiny) Act 2011, which created statements of compatibility and the Parliamentary Joint Committee on Human Rights.
• 2023: the Australian Human Rights Commission published Free and Equal: A Human Rights Act for Australia, including a model Act covering civil, political, economic, social and cultural rights.
• 2024: after an inquiry referred by the Attorney-General in March 2023, the Parliamentary Joint Committee on Human Rights reported on 31 May 2024, recommending that Australia enact a federal Human Rights Act and attaching a model Act (Coalition members dissented). By 2026 the government had not formally responded, and the AHRC has continued to call for a national Act.

The state and territory human rights Acts

Three jurisdictions have statutory charters, which provide the best evidence of how a national Act might work:

• ACT Human Rights Act 2004: the first in Australia; later amended to give a direct right of action against public authorities, to add the right to education and, from 17 March 2025, to add a right to a clean, healthy and sustainable environment, the first in Australia.
• Victorian Charter of Human Rights and Responsibilities Act 2006: protects 20 rights; public authorities must act compatibly and give proper consideration to rights; the Supreme Court can make a declaration of inconsistent interpretation.
• Queensland Human Rights Act 2019: includes some economic and social rights (education, health services) and cultural rights of Aboriginal and Torres Strait Islander peoples. It was used in the Queensland Land Court in Waratah Coal v Youth Verdict (2022), where the Court recommended refusal of a coal mine partly on human rights grounds. But the Queensland Parliament used override declarations to pass youth justice laws inconsistent with the Act in 2023 and again in 2024, and the Breach Bail, Go to Jail and Other Legislation Amendment Bill 2026, introduced in August 2026 and before a parliamentary committee in September 2026, contains further override declarations for bail and watch-house provisions.

NSW has no human rights Act.

Arguments for a Charter of Rights

1. Australia is an outlier. It is the only Western liberal democracy without a national charter or bill of rights, despite ratifying the ICCPR and ICESCR.
2. Current protection is fragmented and fragile. Constitutional rights are few; statutory and common law rights can be overridden by ordinary legislation.
3. Protecting minorities. Parliaments respond to majorities; a charter protects groups with little political power, such as asylum seekers, prisoners and people with disability. The indefinite detention of stateless people was lawful for nearly 20 years after Al-Kateb (2004) until NZYQ (2023).
4. Better law-making and decisions. A duty on public authorities to consider rights changes everyday decisions in housing, health, prisons and child protection, where most rights issues arise, not just in court.
5. Education and culture. A single statement of rights helps people know their rights.
6. International obligations. It would implement treaties Australia has already ratified.

Arguments against a Charter of Rights

1. Parliamentary sovereignty and democracy. Elected parliaments, not unelected judges, should balance competing rights and interests.
2. Judicial activism. Entrenched rights in the United States have led courts to decide highly political questions such as gun control and abortion (the Supreme Court overturned Roe v Wade in Dobbs v Jackson Women's Health Organization (2022)).
3. Rights are already well protected. Australia has independent courts, a free press, a robust democracy, anti-discrimination laws and parliamentary scrutiny.
4. Uncertainty and cost. Broadly worded rights can generate litigation and unpredictable outcomes.
5. Freezing rights. An entrenched charter reflects the values of the time it is adopted and is hard to update.
6. Statutory charters are weak anyway. Queensland's overrides show a statutory Act can be set aside when a government chooses, which critics on both sides use (supporters to argue for stronger protection, opponents to argue it adds little).

Evaluating the debate

A balanced judgement usually recognises that:

• an entrenched charter is unlikely given Australia's referendum record (8 of 45 succeeded) and the defeat of the 1988 rights referendum;
• a statutory Human Rights Act is achievable and would improve decision-making and remedies, particularly if it includes duties on public authorities and a direct cause of action, as proposed in 2023 and 2024;
• but no model removes the need for political will, because under a dialogue model Parliament keeps the final say.

In one sentence

Australia's lack of a national charter leaves rights protection fragmented and able to be overridden, which supporters say justifies a statutory Human Rights Act like those in the ACT, Victoria and Queensland and as recommended by a parliamentary committee in 2024, while opponents argue it would shift power to judges and that rights are already adequately protected.

Try this

Q1. Distinguish between an entrenched and a statutory charter of rights. (3 marks)

• What the marker wants. How each is adopted, whether courts can invalidate laws, and an example of each.

Q2. Outline the operation of ONE state or territory human rights Act. (4 marks)

• What the marker wants. Rights protected, obligations on public authorities, the courts' interpretive role and a limitation or example.

Q3. Evaluate the arguments for a federal Human Rights Act. (7 marks)

• What the marker wants. The strongest arguments for, tested against the counterarguments, with evidence from Australia and overseas, and a judgement.