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Australia is unique among liberal democracies in lacking a Bill of Rights, instead relying on its Constitution and legislation passed by the Commonwealth Parliament or State or Territory Parliaments to protect human rights. The Australian Constitution reserves most law-making powers to the states, except for those listed in sections 51 and 52, which are areas of federal responsibility. The federal Parliament can override territory law at any time, although it has rarely done so. Australia's states and territories have their own laws, which take precedence over federal laws unless they conflict with them.
| Characteristics | Values |
|---|---|
| Number of states | 6 |
| Number of territories | 2 |
| Existence of a Bill of Rights | No |
| Existence of a written Constitution | Yes |
| Powers of states | Residual powers not listed in sections 51 and 52 of the Constitution |
| Federal override | Territory laws can be overridden by federal Parliament under section 122 of the Constitution |
| State laws | Apply only within their respective states or territories |
| Federal laws | Apply across Australia |
| Common law | Inherited from the United Kingdom |
| Human rights laws | Vary across states and territories |
| National Cabinet | Includes Prime Minister, premiers, and chief ministers |
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What You'll Learn
Australia lacks a Bill of Rights
Australia is a democratic country that lacks a Bill of Rights. Instead, protections for human rights 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, including the right to a fair trial, which is recognised in the International Covenant on Civil and Political Rights.
The Australian Human Rights Commission has developed a model for what a national Human Rights Act might look like and how it could function. While Australia does not have a Bill of Rights, the ACT, Queensland, and Victoria have their own human rights laws that apply only within those states and territories.
A Bill of Rights is a list of the most important rights belonging to a country's citizens. It is usually passed as a law through parliament and becomes part of the domestic law of the country. Those in favour of a Bill of Rights for Australia argue that it would make rights directly enforceable, thereby strengthening democracy. A Bill of Rights would promote the protection of human rights by clarifying the rights held by all Australians. It would also encourage Australia to become a more rights-focused society, where people are more likely to learn about and rely upon their rights.
While some argue that a Bill of Rights is not necessary for Australia as their rights are adequately defined by other sources, the country has faced scrutiny for its failure to maintain human rights. Australia is a signatory to multiple human rights treaties that have not been effectively implemented into domestic law. During the second Universal Periodic Review (UPR), Australia received 290 recommendations from 104 member states on improving its protection of human rights. A federal Bill of Rights could lead to an improvement in Australia's international standing and allow the country to better comply with international human rights standards.
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The Constitution outlines federal and state powers
Australia has three levels of government that work together to provide services to its citizens. The Federal Parliament, located in Canberra, makes laws for the entire country. Six state and two territory parliaments make laws for their respective states or territories. Local councils are located around Australia in each local council division.
The Australian Constitution defines federal powers, leaving most other law-making powers to the states. These are called residual powers. If a power is not listed in sections 51 and 52 of the Constitution, it falls under state responsibility. State laws relate to matters of state interest.
Section 122 of the Constitution allows the Federal Parliament to override a territory law at any time. This power has only been used a few times, in cases where the territory law has sparked much debate or controversy within the Australian community.
While Australia does not have a Bill of Rights, it upholds human rights through the Constitution and legislation passed by the Commonwealth Parliament or State or Territory Parliaments. 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 Federal, State, and Local executives work together to solve complex problems. The National Cabinet, which includes the Prime Minister, premiers, and chief ministers, meets regularly to discuss intergovernmental matters. Ministers from the various levels of government also collaborate on issues of common concern, such as health policy. Uniform national laws have been introduced to improve efficiency in areas such as road transport, food standards, and consumer rights.
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State laws relate to matters of state interest
Australia does not have a Bill of Rights, which makes it the only democratic country in the world without a national bill or charter of rights. Instead, protections for human rights are found in the Constitution and in legislation passed by the Commonwealth Parliament or State or Territory Parliaments. The Australian Parliament plays a central role in putting Australia's human rights obligations into action. This is because all new domestic laws for Australia must be agreed upon by the Senate and House of Representatives.
When a law or policy affects a fundamental constitutional right, such as the right to vote or the right to privacy, a strict scrutiny test will be applied. This test requires the state to advance a compelling state interest to justify the law or policy. For example, in Roe v. Wade, the state interest in protecting unborn children was not compelling enough to overcome a woman's right to privacy, and the law was struck down as unconstitutional. Similarly, in Wisconsin v. Yoder (1972), the Court allowed Amish parents to withdraw their children from school at age fourteen, despite a state law requiring attendance until sixteen, because the additional two years of education was not a compelling enough interest to burden the practice of religion.
While Australia does not have a Bill of Rights at the national level, the ACT, Queensland, and Victoria have their own human rights laws that apply only within their respective states or territories. These laws make it illegal to discriminate against vulnerable groups in society. 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.
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Federal Parliament can override territory laws
Australia has three levels of government, with law-making bodies at each level. The Federal Parliament is located in Canberra, the nation's capital. State and territory parliaments are located in the capital cities of each of the six states and two territories.
The Federal Parliament can override territory laws. Section 122 of the Australian Constitution allows the federal Parliament to override a territory law at any time. Additionally, Section 109 of the Australian Constitution states that if the federal Parliament and a state parliament pass conflicting laws on the same subject, the federal law overrides the state law, or the part of the state law that is inconsistent with it.
The Australian Parliament plays a central role in putting Australia's human rights obligations into action. All new domestic laws for Australia must be agreed upon by the Senate and House of Representatives. The Australian Parliament has passed laws that enact Australia's human rights obligations, making it illegal to discriminate against vulnerable groups in society.
Australia does not have a Bill of Rights, making it the only democratic country in the world without a national bill or charter of rights. Instead, protections for human rights are found in the Constitution and in 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. For example, in 1992, the Court decided that Australia's form of parliamentary democracy requires a degree of freedom for individuals to discuss and debate political issues.
The Federal Parliament's ability to override territory laws is an important aspect of Australia's system of government, allowing for a consistent framework of laws across the country.
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State and territory parliaments enforce their own laws
Australia has three levels of government, each with its own law-making responsibilities. The Federal Parliament, located in Canberra, creates laws for the entire country. The six state and two territory parliaments, located in the capital cities of each state and territory, make laws for their respective states or territories. Over 500 local councils make local laws (by-laws) for their region or district.
State and territory parliaments make laws that are enforced within their state or territory. The Australian Constitution has left most law-making powers to the states, known as residual powers. If a matter is not listed in sections 51 and 52 of the Constitution, it falls under state responsibility. State laws relate to matters of state interest.
While the Federal Parliament can override territory laws under section 122 of the Constitution, it has rarely done so, only intervening in cases of significant debate or controversy. Similarly, federal ministers previously held the right to veto or change territory laws without parliamentary approval until 2011.
Each state and territory has its own set of laws, and some states have enacted their own human rights laws. For example, the ACT, Queensland, and Victoria have their own human rights legislation applicable within their jurisdictions.
In addition to the laws enacted by state and territory parliaments, Australia's legal system also includes common law, which is made by judges in courts. The country's common law tradition was inherited from the United Kingdom and is complemented by international treaties and obligations.
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Frequently asked questions
No, Australia does not have a Bill of Rights, making it the only democratic country in the world without a national bill or charter of rights.
The ACT, Queensland, and Victoria have their own human rights laws, which apply only within their respective jurisdictions.
The Australian Parliament plays a crucial role in upholding human rights obligations. It passes laws that enforce these obligations, such as laws prohibiting discrimination against vulnerable groups.
Yes, if a state law conflicts with a federal law, the federal law takes precedence, and the conflicting part of the state law is overridden. The federal Parliament can also override territory laws under Section 122 of the Constitution.
