Analyse the means by which rights are protected in Australia and evaluate how effective they are

What this dot point is asking

SCSA wants you to identify the different sources of rights protection in Australia, explain how each works, and evaluate how effective they are. The key framing is that Australia is unusual among comparable democracies in having no single, entrenched, comprehensive statement of rights.

Constitutional rights: express and implied

The Constitution protects only a handful of express rights. These include the right to trial by jury for some indictable Commonwealth offences (section 80), freedom of religion (section 116), the acquisition of property on just terms (section 51(xxxi)), and freedom from discrimination based on the state in which a person lives (section 117). These rights are entrenched, meaning they can only be removed by a section 128 referendum, which makes them strong but very narrow.

The High Court has also recognised implied rights, which are not written down but are read into the structure of the Constitution. The most important is the implied freedom of political communication, established in cases such as Australian Capital Television v Commonwealth (1992) and refined in Lange v ABC (1997). This protects communication on government and political matters because representative and responsible government (sections 7 and 24) cannot work without it. Importantly, it is a limit on legislative power, not a personal right to free speech.

Statutory protection

Parliament protects many rights through ordinary legislation. Examples include the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Privacy Act 1988 (Cth). The Australian Human Rights Commission investigates and conciliates complaints under these laws.

The weakness of statutory protection is that, because it is ordinary legislation, parliament can amend or repeal it by a simple majority, and a later Act can override an earlier one. Statutory rights therefore depend on the continued goodwill of the parliament of the day.

Common law protection

The common law (judge-made law) protects rights through long-standing principles and the principle of legality, under which courts presume parliament does not intend to abolish fundamental rights unless it says so in clear and unambiguous words. Common law protects rights such as the presumption of innocence, the right to silence, and procedural fairness. However, common law rights can always be overridden by clear statute, because parliament is supreme.

International treaties

Australia is a party to many human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR). However, treaties do not become part of Australian domestic law automatically; they must be incorporated by legislation. Until that happens, a treaty does not create enforceable rights in Australian courts, though it can influence statutory interpretation and government policy.

Evaluating effectiveness

Strengths of the Australian approach include flexibility, parliamentary sovereignty, and entrenched protection for the few express rights. Weaknesses include the absence of a comprehensive, enforceable statement of rights, the vulnerability of statutory rights to repeal, and gaps such as the limited protection of rights for minorities. Some argue a statutory or constitutional bill of rights would improve protection; others argue it would transfer too much power to unelected judges. The Australian Capital Territory, Victoria and Queensland have enacted statutory human rights Acts, providing a partial domestic model.