Kara Sears
Despite lacking a Bill of Rights, Australia's common law—inherited from the United Kingdom—provides significant protection for human rights. Common law, or 'judge-made' law, is distinct from laws made in Parliament. It is a rich source of human rights, fostering freedoms such as freedom of speech, opinion, religion, association, and movement. The common law principle that legislation should not infringe on fundamental rights and freedoms ensures that these rights are upheld, unless the legislation expresses a clear intention to do so and the infringement is reasonable. This principle, known as the principle of legality, provides a substantial level of protection for human rights in Australia.
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What You'll Learn
Common law courts' powers
Australia does not have a Bill of Rights, which is unusual for a common law country. Instead, common law courts in Australia have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power.
Common law, or 'judge-made' law, is inherited from the United Kingdom and its courts. It is distinct from laws made in Parliament. Common law principles contain concepts intended to provide protection for children and people with disabilities, although this has been limited by relevant statutory provisions and a lack of obligations on governments to actively promote human rights.
Common law freedoms include freedom from slavery and trafficking in persons, as seen in Somersett v Stewart (1772). The Australian common law also provides strong protections for freedom of speech related to public affairs and political matters. The High Court has found that the Australian form of parliamentary democracy requires a degree of freedom for individuals to discuss and debate political issues.
The Australian Constitution and legislation passed by the Commonwealth Parliament or State or Territory Parliaments also provide protections for human rights. The Australian Human Rights Commission (AHRC) was established in 1986 as an independent government organisation that plays a key role in protecting and promoting human rights in Australia. Australians can make a complaint to the AHRC if they have experienced discrimination in their public life on the basis of their race, gender, age, ability, or sexual preference.
In conclusion, while Australia lacks a Bill of Rights, common law courts have significant powers to protect human rights principles, including freedom of speech, freedom from slavery, and the right to discuss and debate political issues. These powers are derived from the common law tradition inherited from the United Kingdom and are further supported by the Australian Constitution, legislation, and the work of the AHRC.
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Freedom from slavery
Australia does not have a Bill of Rights, which is unusual for a common law country. Instead, human rights protections are found in the Constitution and legislation passed by the Commonwealth Parliament or State or Territory Parliaments. There are five explicit individual rights in the Constitution, and the High Court has found that additional rights may be necessarily implied by the language and structure of the Constitution.
The right to freedom from slavery prohibits people from being held in conditions where the powers attaching to the right of ownership are exercised. This includes debt bondage, serfdom, forced marriage, and certain instances of child exploitation. Slavery is defined as the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.
The right to freedom from forced labour requires that a person be free from work or service compelled under the threat of penalty, which the person has not offered to perform voluntarily. This includes human trafficking and people trafficking, which often involve an element of contravention of the right to freedom from slavery.
The Australian Human Rights Commission Act 1986 details the powers and functions of the Australian Human Rights Commission, which is responsible for monitoring and promoting human rights protection. The Commission has responsibilities under various anti-discrimination Acts and has developed a model for a national Human Rights Act.
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Human rights treaties
Australia does not have a Bill of Rights, which is unusual for a common law country. Instead, human rights are protected by the Constitution and legislation passed by the Commonwealth Parliament or State or Territory Parliaments. There are five explicit individual rights in the Constitution, and the High Court has found that additional rights may be necessarily implied by the language and structure of the Constitution.
International human rights treaties provide an agreed set of human rights standards and establish mechanisms to monitor how a treaty is implemented. By ratifying a treaty, a country voluntarily accepts legal obligations under international law. Australia is a party to seven core international human rights treaties:
- International Covenant on Civil and Political Rights (ICCPR)
- International Covenant on Economic, Social and Cultural Rights (ICESCR)
- International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
- Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
- Convention on the Rights of Persons with Disabilities (CRPD)
- Convention on the Rights of the Child
In addition to these seven core treaties, Australia has also ratified the following optional protocols:
- Optional Protocol to the International Covenant on Civil and Political Rights
- Optional Protocol to the Convention on the Rights of Persons with Disabilities
- Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Australia also has periodic treaty body reporting obligations under these treaties and is an active participant in the Universal Periodic Review process, which provides an in-depth analysis of Australia's compliance with its international human rights obligations.
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Legislation and fundamental rights
Australia does not have a Bill of Rights, which is unusual for a common law country. Instead, human rights are protected by the Constitution, legislation passed by the Commonwealth Parliament and State or Territory Parliaments, and common law.
The Australian Constitution includes five explicit individual rights. In addition, the High Court has found that the language and structure of the Constitution imply additional rights, such as freedom of political discussion and debate.
Common law, or 'judge-made' law, is inherited from the United Kingdom and includes the Magna Carta of 1215, which was probably the first human rights treaty. Common law principles contain concepts intended to provide protection for children and people with disabilities, and courts have the power to protect human rights principles, including the rule of law, unless legislation specifically overrides this.
Common law recognises fundamental freedoms, such as freedom from slavery and trafficking in persons, and provides strong protection for freedom of speech, particularly in relation to public affairs and political matters.
The Australian Human Rights Commission Act 1986 established the Australian Human Rights Commission (AHRC) as an independent government organisation responsible for monitoring and promoting human rights protection. The AHRC can investigate complaints about breaches of human rights against the Australian Government or its agencies, and by individuals who have experienced discrimination on the basis of race, gender, age, ability, or sexual preference.
While international law is not directly enforceable or binding in Australia, the government has committed to incorporating international human rights treaties into Australian law.
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The Australian Human Rights Commission
The AHRC has developed a model for a potential future national Human Rights Act, outlining its possible functions and scope. The Commission's work is guided by the Paris Principles, which set out the responsibilities, composition, and framework of national human rights institutions. The Global Alliance of National Human Rights Institutions (GANHRI) is responsible for reviewing and accrediting national human rights institutions against the Paris Principles every five years.
The AHRC investigates alleged infringements of federal legislation, including the International Covenant on Civil and Political Rights (ICCPR), the Convention Concerning Discrimination in Respect of Employment and Occupation (ILO 111), and the Convention on the Rights of Persons with Disabilities. The Commission also investigates matters such as discrimination on the grounds of age, medical record, criminal record, disability, marital or relationship status, nationality, and sexual orientation.
The AHRC has conducted numerous public inquiries, including the "Same-Sex: Same Entitlements" inquiry into financial and workplace discrimination against same-sex couples and the "Separation of Aboriginal and Torres Strait Islander Children from their Families" (Bringing Them Home Report, 1997). The Commission also regards the establishment of the Parliamentary Joint Committee on Human Rights in 2012 as a significant enhancement of the Federal Parliament's role in human rights scrutiny.
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Frequently asked questions
No, Australia does not have a Bill of Rights. Instead, human rights are protected by the Constitution, legislation, and common law.
Common law is 'judge-made' law, which is made in courts rather than by Parliament. Australia inherited its common law from the United Kingdom.
Common law provides protection for human rights principles, including the rule of law, unless legislation specifically overrides this power. Common law also includes concepts that protect children and people with disabilities.
The AHRC is an independent government organisation that plays a key role in protecting and promoting human rights in Australia. It was established by the Australian Human Rights Commission Act 1986, which outlines its powers and functions. The AHRC can investigate complaints about breaches of human rights by the Australian Government or its agencies, as well as complaints of discrimination on the basis of race, gender, age, ability, or sexual preference.
