Investigate the promotion and enforcement of human rights in Australia, including the role of the Constitution, common law, statute law, courts and tribunals, and the Australian Human Rights Commission

What this dot point is asking

NESA wants you to know how human rights are protected in Australia and how effective each mechanism is. Expect this as a 10-15 mark Section III response or as background for the contemporary issue extended response.

The answer

Constitutional protection

The Constitution of the Commonwealth of Australia protects a small number of rights expressly:

• s 41. Right to vote in Commonwealth elections (effectively limited).
• s 80. Trial by jury for indictable Commonwealth offences.
• s 116. Prohibition on the Commonwealth establishing a religion or prohibiting the free exercise of religion.
• s 117. Freedom from discrimination based on state residence.
• s 51(xxxi). Acquisition of property on just terms.

The implied freedom of political communication is derived from ss 7 and 24 (the requirement that members of Parliament be "directly chosen by the people"). Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 set the modern two-step test; the freedom has been further developed in McCloy v New South Wales (2015) 257 CLR 178 and Brown v Tasmania (2017) 261 CLR 328.

Statutory protection

The Commonwealth has implemented core human rights treaties through statute:

• Racial Discrimination Act 1975 (Cth). Implements CERD. Section 18C prohibits acts done because of race, colour or ethnic origin that are reasonably likely to offend, insult, humiliate or intimidate.
• Sex Discrimination Act 1984 (Cth). Implements CEDAW.
• Disability Discrimination Act 1992 (Cth). Implements the CRPD (2008).
• Age Discrimination Act 2004 (Cth).
• Privacy Act 1988 (Cth). Currently under reform following the Attorney-General's Department 2022 Privacy Act Review Report.
• Fair Work Act 2009 (Cth). Protects workplace rights including freedom of association and protection from discrimination.
• Modern Slavery Act 2018 (Cth). Requires large entities to report on slavery risks in supply chains.

State and territory human rights Acts:

• Charter of Human Rights and Responsibilities Act 2006 (Vic).
• Human Rights Act 2004 (ACT).
• Human Rights Act 2019 (Qld).

These Acts require public authorities to act compatibly with listed human rights (a "dialogue model" that does not strike down inconsistent legislation but requires the Attorney-General to issue a statement of compatibility).

Common-law protection

The common law protects:

• the right to a fair trial (Dietrich v The Queen (1992) 177 CLR 292);
• the rule of law;
• procedural fairness in administrative decisions;
• the privilege against self-incrimination;
• the principle of legality (statutes are presumed not to abrogate fundamental rights without clear words).

Institutional protection

Australian Human Rights Commission (AHRC). Established under the Australian Human Rights Commission Act 1986 (Cth). Functions:

• receives and conciliates complaints of discrimination;
• conducts inquiries (e.g. the 2020 Wiyi Yani U Thangani report on Aboriginal and Torres Strait Islander women and girls);
• monitors compliance with international treaties;
• reports to Parliament.

The AHRC is a National Human Rights Institution accredited "A status" under the Paris Principles 1993.

Courts. The High Court exercises judicial review under s 75(v) of the Constitution. The Federal Court hears matters under Commonwealth statutes including anti-discrimination Acts. State Supreme Courts and the Victorian, ACT and Queensland tribunals hear matters under state human rights Acts.

Parliamentary Joint Committee on Human Rights. Established under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). Reviews all new bills for compatibility with the seven core UN human rights treaties.

Non-legal responses

NGOs and civil society are active. Key organisations: Amnesty International Australia, the Human Rights Law Centre, the Aboriginal Legal Service NSW/ACT, the Refugee Council of Australia, the Asylum Seeker Resource Centre, and the Australian Council of Trade Unions. Media reporting (including ABC Four Corners on Don Dale Youth Detention Centre, leading to the 2017 Royal Commission) drives public pressure.

The bill of rights debate

Australia is the only common-law liberal democracy without a national bill or charter of rights. The Australian Human Rights Commission's 2024 Free and Equal Position Paper, supported by the Parliamentary Joint Committee on Human Rights, recommends a federal Human Rights Act using the dialogue model already in place in Victoria, the ACT and Queensland. The proposal has not yet been adopted by the Commonwealth Parliament.