Leslie Massey
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 found in a variety of sources, including international law, common law, and statute law. While Australia lacks a Bill of Rights, the Australian Constitution provides safeguards for certain rights, such as freedom of political communication, and the High Court has also found implied rights within the Constitution. Additionally, Australia has signed and committed to numerous international human rights treaties, which are incorporated into Australian law through legislation passed by the Australian Parliament. These laws protect against discrimination and ensure equality for all individuals, including those from specific groups such as women, children, and Indigenous people.
| Characteristics | Values |
|---|---|
| Source of rights | International law, common law, statute law |
| Human rights treaties | Universal Declaration of Human Rights (UDHR), Convention on the Rights of the Child, Convention on the Rights of Persons with Disabilities, United Nations Principles for Older Persons |
| Rights protected by the Constitution | Trial by jury, freedom of trade, commerce and intercourse within the Commonwealth, freedom of political communication |
| Rights protected by common law | Freedom of speech, opinion, religion, association, movement, contract, tort, property rights |
| Rights protected by statute law | Right to housing, healthcare, sanitation, education, freedom from discrimination |
| Rights-depriving acts | Retrospectively changing rights and obligations, infringing personal liberty, interfering with freedom of movement or speech |
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What You'll Learn
Freedom of speech, opinion, religion, association, and movement
Australia lacks a Bill of Rights, but its Constitution and legislation provide safeguards for individual rights and freedoms. 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.
Freedom of Speech, Opinion, and Expression
The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has affirmed that an implied freedom of political communication exists as an indispensable part of the country's system of representative government. This includes the freedom to engage in political activity, debate public affairs, hold peaceful demonstrations, criticise, publish political material, and advertise political ideas.
The right to freedom of opinion and expression is also guaranteed by articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR), and articles 4 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD). This right protects both favourable and unpopular ideas, including those that may offend or shock, within certain limitations. For example, restrictions may be imposed on certain pornographic material or material deemed harmful to minors.
Freedom of Religion
In 2017, the Australian government appointed an Expert Panel to examine the protection of religious freedom under Australian law. The Panel's report, submitted in 2018, made 20 recommendations to enhance the protection of religious freedom through legislative amendments and non-legislative measures. The government accepted 15 of these recommendations, and the Religious Discrimination Bill was introduced to prohibit discrimination based on religious belief or activity.
Freedom of Association
The right to freedom of association is guaranteed by the Australian Human Rights Commission, which overlaps with ICESCR Article 8. This right includes the freedom to form and join organisations such as trade unions to protect one's interests and engage in cultural, economic, and social activities. However, restrictions may be imposed if necessary for national security, public safety, or the protection of public health and morals.
Freedom of Movement
The right to freedom of movement in Australia applies to all persons lawfully within Australian territory, not just citizens. This includes the freedom to leave the country for short-term, long-term, or permanent departures without establishing a purpose or reason. However, this right may be restricted in certain cases, such as for individuals charged with criminal offences or to fulfil obligations under international conventions, such as the Hague Convention on the Civil Aspects of International Child Abduction.
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Equality and non-discrimination
Australia's rights and freedoms are found in its Constitution, legislation, and international law. While Australia lacks a Bill of Rights, its Constitution and laws provide safeguards for its citizens' rights and freedoms.
The Australian Human Rights Commission Act 1986, Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, Age Discrimination Act 2004, Fair Work Act 2009, and Australian Human Rights Commission Regulations 1989 all contribute to safeguarding these rights. Additionally, the High Court of Australia interprets the Constitution and has found implied rights, such as freedom of political communication, essential for a representative democracy.
Australia has also signed and ratified numerous international human rights agreements, including the Universal Declaration of Human Rights (UDHR), which sets a baseline for nations to uphold. Australia's international obligations extend to treaties like the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). These treaties protect against discrimination based on race, sex, age, disability, and other attributes.
Furthermore, Australia's anti-discrimination laws prohibit discrimination based on protected attributes such as age, disability, race, sex, intersex status, gender identity, and sexual orientation in areas like education and employment. The Australian Human Rights Commission handles complaints of unlawful discrimination, and each state and territory has enacted anti-discrimination legislation.
The rights to equality and non-discrimination are essential in ensuring that all Australians are treated with fairness and respect, regardless of their personal characteristics or group affiliations. These rights are a cornerstone of Australia's commitment to upholding human rights and creating an inclusive society.
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Human rights and non-citizens
Human rights are not restricted to citizens in Australia. According to Article 2.1 of the ICCPR, each party must ensure the rights to the Covenant for "all individuals within its territory and subject to its jurisdiction". This means that human rights apply to everyone, irrespective of their nationality or statelessness.
The Australian Human Rights Commission Act 1986 details the powers and functions of the Australian Human Rights Commission, which is the Commonwealth agency responsible for monitoring and promoting human rights protection. The Commission was established to address human rights violations, which occur in all countries, including Australia. Some groups in Australia are particularly vulnerable to human rights abuses, including Aboriginal and Torres Strait Islander people, asylum seekers, migrants from non-English speaking backgrounds, those living in poverty, people with disabilities, and other groups.
The Australian Human Rights Commission has worked to address human rights violations against these groups. For example, the Convention on the Rights of the Child was the first of the main human rights treaties to expressly address the rights of people with disabilities. The Convention on the Rights of Persons with Disabilities also addresses a wide range of rights, including civil, political, economic, social, and cultural rights. It confirms that these rights apply to people with disabilities and provides details on what these rights mean in the context of disability, such as accessibility and independent living.
The Australian government has historically been an active participant in the development of international human rights standards. Australia has either endorsed non-binding human rights instruments or signed and ratified binding legal instruments. Australia is a party to seven of the key human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention against Torture (CAT).
However, it is important to note that Australia lacks a Bill of Rights. Instead, rights are protected through the Constitution and legislation. The High Court of Australia plays a crucial role in interpreting the Constitution and has found implied rights within it. For instance, the High Court has ruled 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.
While non-citizens in Australia do not have the right to enter or reside in the country, they are protected by human rights laws once they are within its territory. The right to freedom of movement, for example, applies to those who are lawfully within the country, regardless of their citizenship status. This right includes the freedom to move freely within the country, leave any country, and enter a country of which one is a citizen. However, this right may be restricted in certain circumstances, such as national security or public health concerns.
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Freedom of political communication
While Australia lacks a Bill of Rights, the country's rights and freedoms are safeguarded through the Constitution and legislation. The Australian Constitution provides for an 'implied freedom of communication' about government and political matters. This implied freedom isn't an individual right, but rather a restriction on laws that interfere with free communication about government and politics.
The implied freedom of political communication was established in two 1992 High Court cases: Australian Capital Television vs the Commonwealth and Nationwide News vs Wills. The court determined that the Australian Constitution implies a restriction on the executive and legislative branches of the government from infringing upon the freedom to discuss government, its institutions, and political matters. This freedom is essential to ensure the maintenance of a representative democracy, as it allows citizens to cast effective and informed votes to establish a functioning parliament.
The 1997 High Court case Lange vs Australian Broadcasting Corporation placed some limitations on this implied right. The court clarified that the implied freedom of political communication extends beyond election periods to ensure a well-functioning democracy is maintained at all times. However, the court also qualified that this right is not absolute, as it only extends to matters indispensable to maintaining representative democracy. The Lange case also altered the defence of qualified privilege, which permits those in positions of authority to make statements that would usually be considered slanderous. The court established a measure to consider whether it is reasonable for a publisher to print potentially defamatory statements.
The scope of what constitutes a "government or political matter" under the implied freedom of political communication is not always clear. It appears to include communications that could reasonably impact voting behaviour in federal elections, extending to State or Territory politics and the actions of public officers. For example, in Kerrison vs Melbourne City Council, the Federal Court held that the presence of protestors who were part of the 'Occupy Melbourne' movement in a public park was a form of political communication. On the other hand, in Clubb vs Edwards, the High Court ruled that personal communications concerning reproductive choices aimed at women entering abortion clinics were not 'political' communications.
The implied freedom of political communication also includes peaceful protest, as ruled by the majority of the High Court in Australian Capital Television vs the Commonwealth. The court found that the Protesters Act encroached upon this right due to the excessive powers it bestowed on the police, and the discriminatory nature of the law in targeting only activists.
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Voting rights
The Australian Constitution also plays a role in protecting voting rights. While it does not contain an express statement of the right to vote, the High Court has found a degree of implied Constitutional protection. The High Court has emphasised the connection between the rights recognised in Article 25 and the rights to freedom of association and expression. The Court has also found that because the Constitution establishes a representative democracy in Australia, individual citizens must have an implied right to freedom of political communication. This is because a representative democracy cannot function if people are not free to express their opinions on political matters.
In practice, however, not all Australians enjoy the right to vote equally. If you are young, live in a rural or remote area, have a disability, are Indigenous, homeless, or a prisoner serving a sentence of more than 3 years, your right to vote in a federal election may be restricted as a legal or practical matter.
Indigenous Australians, in particular, have faced significant barriers to voting rights. 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 right to vote, and in the same year, 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 Commonwealth Franchise Act granted men and women of all states the right to vote, but Indigenous people were excluded from this right unless they already had the right to vote before 1901. In 1949, an amendment was introduced to extend the right to vote in federal elections to any Indigenous person who had been a member of the defence forces. Finally, in 1962, the Commonwealth Electoral Act granted all Aboriginal and Torres Strait Islander people the option to enrol and vote in federal elections. Enrolment was not compulsory for Indigenous Australians, but once enrolled, voting was compulsory.
Other notable developments in Australia's voting rights history include the lowering of the voting age for federal elections from 21 to 18 years, and the introduction of electronic voting trials in 2007 to enable electors who are blind or vision-impaired to vote independently.
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Frequently asked questions
Australia's individual rights and freedoms are found in the Constitution, legislation, and common law. The Australian Parliament plays a central role in putting Australia's human rights obligations into action.
Examples of rights and freedoms found in Australia include freedom of speech, opinion, religion, association, and movement.
Human rights are protected in Australia through a range of laws at the federal, state, and territory levels. The Australian Constitution expressly protects a handful of rights, including the right to trial by jury and freedom of trade, commerce, and intercourse within the Commonwealth.
