Lexi Webster
Australia is founded on the rule of law and has a strong tradition of respecting the rights and freedoms of every individual. These rights and freedoms are protected by a range of laws at the federal, state, and territory levels, the Australian Constitution, and the common law. Notably, Australia lacks a Bill of Rights, but its Constitution and legislation provide safeguards for individual rights and freedoms. The Australian Parliament plays a crucial role in upholding the country's human rights obligations, and the High Court of Australia is responsible for interpreting the Constitution and identifying implied rights within it.
| Characteristics | Values |
|---|---|
| Constitution | The Australian Constitution expressly protects certain rights and has been found to imply certain other rights. |
| Common law | The common law of Australia protects rights through various causes of action (e.g. contract, tort, and property rights) and principles of statutory interpretation. |
| Legislation | The Australian Parliament has passed laws that enact Australia's human rights obligations, including the right to freedom from discrimination and freedom of association, speech, opinion, religion, and movement. |
| International law | As a founding member of the United Nations, Australia has assisted in drafting the Universal Declaration of Human Rights and is a signatory to various other international treaties on human rights. |
| State and territory laws | Human rights are protected in various states (e.g. ACT and Victoria) through legislation, and the states and territories also have their own laws. |
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What You'll Learn
Freedom of speech, opinion, religion, association and movement
Australia's individual rights and freedoms are found in a variety of sources, including the Constitution, legislation, common law, and international obligations. These sources collectively outline the country's commitment to protecting and upholding the rights of its citizens and residents.
One of the fundamental rights enjoyed by Australians is
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Equality and non-discrimination
Australia's rights and freedoms are found in the Constitution, legislation, and international law. While Australia lacks a Bill of Rights, the High Court has found that additional rights for individuals may be necessarily implied by the language and structure of the Constitution. For example, the High Court has found that Australia's form of parliamentary democracy, as dictated by the Constitution, requires a degree of freedom for individuals to discuss and debate political issues.
- Laws, policies, and programs should not be discriminatory.
- Public authorities should not apply or enforce laws, policies, and programs in a discriminatory or arbitrary manner.
- The law should provide protection against discrimination.
- Laws, policies, and programs should promote equality.
In Australia, it is unlawful to discriminate on the basis of protected attributes, including age, disability, race, sex, intersex status, gender identity, and sexual orientation, in certain areas of public life, including education and employment. These rights are protected by federal anti-discrimination laws, such as the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, the Age Discrimination Act 2004, and the Fair Work Act 2009.
When working on legislation, a policy, or a program that draws distinctions between people or groups, it is essential to consider the rights of equality and non-discrimination. This includes direct or indirect distinctions and those that may have unintended consequences. For example, eligibility criteria for financial benefits that differ according to sex or age should be carefully scrutinized to ensure they are reasonable, objective, and non-discriminatory.
Australia has also signed and committed to several international human rights treaties, such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). These treaties contain provisions on equality and non-discrimination, such as Article 26 of the ICCPR, which includes discrimination on the grounds of sexual orientation.
Additionally, the Australian Human Rights Commission has the statutory power to receive, investigate, and conciliate complaints of unlawful discrimination under Australia's anti-discrimination legislation. Individuals who believe they have been unlawfully discriminated against can lodge a complaint with the Commission or relevant state and territory agencies.
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Human rights and non-citizens
Human rights in Australia are protected by the Constitution and legislation, despite the country lacking a Bill of Rights. The Australian Human Rights Commission is the Commonwealth agency responsible for monitoring and promoting human rights protection.
The Australian Human Rights Commission Act 1986 details the powers and functions of the Australian Human Rights Commission. The Commission also has responsibilities under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 1996. The principle of non-discrimination is a fundamental one in human rights law - all human rights should be enjoyed by everyone, regardless of factors such as race, sex, or disability.
The Australian Human Rights Commission has developed a model for a potential National Human Rights Act, outlining its function and role. The Commission is also responsible for overseeing and reporting on the protection of human rights in Australia.
Human rights are not restricted to citizens. Article 2.1 of the ICCPR states that each party must ensure the rights to the Covenant for "all individuals within its territory and subject to its jurisdiction". The ICCPR also outlines that the rights set forth in the Covenant apply to everyone, regardless of nationality or statelessness. This means that non-citizens are also entitled to human rights, except for the right to enter or reside in the territory of a State party, which is not recognised by the Covenant.
The Australian Government has a responsibility to ensure that human rights are protected and enforceable within the country. This includes introducing international human rights standards into domestic law through a process known as 'ratification'. Once these standards are protected in national legislation, the Australian court system can ensure they are upheld and cannot be overruled by any state or territory legislation that contradicts them.
The High Court of Australia plays a key role in interpreting the Constitution and has found implied rights within it. For example, the Court has found that Australia's form of parliamentary democracy, as established by the Constitution, requires individuals to have the freedom to discuss and debate political issues. This implies a right to freedom of political communication for individual citizens.
In addition to the Constitution, human rights in Australia are also protected by international law, common law, and statute law. Australia has signed and ratified several international human rights agreements and treaties, including the Universal Declaration of Human Rights and the Declaration on the Rights of Indigenous Peoples. The Australian Parliament plays a central role in enacting these human rights obligations into law, ensuring that discrimination against vulnerable groups is illegal.
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Freedom of political communication
Australia's individual rights and freedoms are found in its Constitution, international law, common law, and statute law. While Australia lacks a Bill of Rights, the High Court has found that additional rights for individuals may be implied by the language and structure of the Constitution.
One such right is freedom of political communication. On 30 September 1992, the High Court found in two separate cases—*Australian Capital Television* *vs.* *the Commonwealth* and *Nationwide News vs. Wills*—that there is an implied right to freedom of political communication within the founding document. This implied right is not a personal right to freedom of speech, but rather a restriction upon the executive and legislative branches of government from infringing upon the freedom to discuss government, its institutions, and political matters.
The implied freedom of political communication is not absolute and only exists to the extent necessary to protect the system of government reflected in the constitutional text. In other words, a law can interfere with communication about government or politics without breaching the implied freedom if the law does so for a legitimate aim and is generally proportionate to that aim. Under the current case law, three questions must be answered when deciding whether a law infringes the implied freedom:
- Does the law effectively burden the freedom in its terms, operation, or its practical effect (the burden question)?
- If so, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government?
- Is the law's goal and its methods compatible with the system of government established by the Constitution?
The implied freedom of political communication includes peaceful protest, and it has been held that the presence of protestors in a public park was a form of political communication. It also extends beyond the period of elections to ensure that a well-functioning democracy is maintained at all times. However, the right does not extend to malicious statements, and the High Court has clarified that it does not include personal communications concerning reproductive choices aimed at women entering abortion clinics.
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Voting rights
Australia is a democratic nation where governments are elected by popular vote. Almost all Australians over 18 have the right—and, indeed, the obligation—to vote. However, this right is not always enjoyed equally by all Australians.
In the 1850s, under the constitutions of Victoria, New South Wales, and South Australia, Aboriginal men had the same right to vote as other male British subjects aged over 21. However, they were not encouraged to enrol. In 1896, Tasmania granted Aboriginal men the franchise. In 1895, South Australia became the first electorate in the world to give equal political rights to both women and men.
Queensland and Western Australia introduced responsible government in 1890 but denied Indigenous people the vote. In 1902, the first federal electoral act, the Commonwealth Franchise Act, granted men and women of all states the right to vote. However, Indigenous people were excluded from this right unless they already had the right to vote before 1901.
In 1922, the Northern Territory enacted laws specifically intended to deny the vote to Aboriginal and Torres Strait Islander people. In 1949, Prime Minister Ben Chifley introduced an amendment to the Commonwealth Electoral Act 1918, extending the right to vote in federal elections to any Indigenous person who had been a member of the defence forces. It wasn't until 1962 that the Commonwealth Electoral Act granted all Aboriginal and Torres Strait Islander people the option to enrol and vote in federal elections.
In 1984, Indigenous people were finally treated like other voters and required to enrol and vote at elections. Today, limitations on the right to vote continue to be a focus of the Australian Human Rights Commission's work. The right to vote, without discrimination, is set out in the International Covenant on Civil and Political Rights (article 25) and the Universal Declaration on Human Rights (article 21). The Australian High Court has also found a degree of implied Constitutional protection for the right to vote, connected to the rights to freedom of association and expression.
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Frequently asked questions
Australia's individual rights and freedoms are found in the Constitution, legislation, and common law. The Australian Constitution expressly protects a handful of rights and has been found to imply certain other rights. These include freedom of political communication and freedom of speech related to public affairs and political matters.
Australia's common law protects rights such as freedom of speech, opinion, religion, association, and movement. It also protects human rights through principles of statutory interpretation, assuming that Parliament does not intend to remove a fundamental human right unless such an intention is clear.
Yes, Australia has signed or agreed to be bound by various international human rights treaties and conventions, including the Universal Declaration of Human Rights (UDHR), the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities. As a founding member of the United Nations, Australia also assisted in drafting the UDHR.
Human rights in Australia are protected through a range of laws at the federal, state, and territory levels. The Australian Parliament plays a crucial role in enacting human rights obligations. However, a significant limitation is that human rights protections cannot be implemented or enforced at the Federal level. Additionally, human rights may be violated in specific circumstances, such as national emergencies or security concerns.
