A human rights act is needed to provide an Australian framework by which our society can more transparently and consistently protect and promote fundamental human rights.

This list of frequently asked questions addresses many of the issues of why, how and what we need to do to better protect the human rights of everyone in Australia.

1. What is the purpose of a human rights act?

The values of fairness, freedom, dignity, equality and tolerance are commonly drawn on in Australian culture and politics as we aspire to a better, fairer society.

A human rights act is a tool that encapsulates these values and enables:

• policy makers to benchmark new policy against these agreed values
• individuals and organisations to agitate for better public services; and
• courts to decide disputes using these rights as a framework.

In these ways a culture of respect for human rights can be enhanced in Australian society.

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2. Why does Australia need a human rights act now? OR “If it ain’t broke why fix it?”

Critics of a human rights act often argue that our democratic government is well equipped to protect human rights and that Australia’s human rights record is exemplary.

Unfortunately, this is not true. Over the past decade we have seen numerous examples where fairness, dignity, equality and tolerance have been flouted and where the governments and courts have not had adequate mechanisms to correct these injustices.

Some recent examples include:

• Children held in refugee detention centres
• Asylum seekers detained indefinitely
• Australians illegally detained or deported
• The introduction of 40 new anti-terrorism laws over a period of 5 years, which have stripped fundamental rights without adequate transparency and explanation
• Mandatory sentencing in the Northern Territory which had a severe and disproportionate impact on the Aboriginal people
• Undue censorship and sedition laws limiting our freedom of speech; and
• An acute lack of safety, health and adequate living conditions of Indigenous Australians.

The “system” has failed Australians in these examples. Only as a result of protracted pressure from outside the system, have some of these situations since been corrected. Left behind are deep scars on both the victims and our international human rights reputation.

A human rights act would help to mitigate these types of injustices in the future.

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3. Don’t we already have protection for our rights?

Australian law currently does protect some important human rights. The problem is that it is an ad hoc and incomplete patchwork of rights protection.

The primary sources of human rights are:

• our constitution from which we have the freedom of religion, freedom from discrimination on the basis of residence, a right to trial by jury, the right to review of government action, acquisition of property on just terms, and some implied rights which have been narrowly defined by the courts;
• legislation passed at federal and state level, most noticeably anti-discrimination legislation, and more recently the ACT Human Rights Act 2004 and the Victorian Charter of Human Rights and Responsibilities 2006;
• at common law, judges have recognised certain civil liberties; and
• international law. Australia has ratified a number of important international covenants including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). That we have failed to honour our agreement to make these part of our domestic law means that we are in breach of international law.

Together these laws only protect a narrow range of fundamental freedoms of the Australian people. With such a complicated array of laws, it is understandable that Australians are largely unsure of what their rights are or how they can protect them. We are left to blindly trust that those in power have our best interests at heart. As we have seen, this is especially dangerous for members of unpopular minority groups.

What we lack is one document, one Act, which clearly sets out the rights of all Australians. A national human rights act would serve this purpose. Alone it is not a panacea to all human rights problems but it has the potential of being an important part of Australian life.

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4. Do Australians want a human rights act?

Yes! Numerous studies have been done over the years showing that Australians value their human rights highly and would like to see them better protected.

Research by Amnesty International in 2006 found that 95% of people surveyed rated their human rights as “important” and more than 60% incorrectly thought that Australia already had a Charter or Bill of Rights in place. More info at the Amnesty website.

Several state governments have commissioned public consultations on whether rights should be protected by state human rights acts. The ACT and Victoria have already enacted human rights legislation and Tasmania and WA commissioned inquiries which both reported overwhelmingly support for such legislation.

The current Rudd government has committed to conduct a national public inquiry about how best to recognise and protect human rights and freedoms. Our campaign supports this initiative and encourages individuals and organisations to participate in the consultations and make submissions when the time arises.

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5. Why a legislative “Human Rights Act” rather than a constitutional “Bill of Rights”?

Bills of rights come in different shapes and sizes. Constitutional bills of rights make rights absolute which means that if a court finds a law to be inconsistent with the bill of rights, then that law is made invalid. In this way, the bill of rights can ‘trump’ other laws. Constitutional rights can only be introduced, or later changed, by referendum. To introduce a constitutional bill of rights would represent a significant change for our system of law and government.

By contrast, a legislative human rights act or charter is an ordinary act of parliament. Such an Act would be able to operate within our existing system of government without altering the existing balance between parliament and the courts. A human rights act would represent an effective and flexible method of protecting rights that respects the traditions and history of our government and its institutions.

Although the terminology used in the debate can be confusing, it is important to be clear about which model is being discussed.

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6. Would a human rights act transfer power from parliament to unelected judges?

Critics of human rights legislation often claim that it will give more power to unelected judges and undermine parliamentary sovereignty. These critics are often referring to the model of a constitutional bill of rights (see Question 5 above) as exists in the United States.

By contrast, the introduction of a legislative human rights act would not impact unduly on the existing fabric of our system of government. This is the model our campaign supports.

The legislative model encourages rights protection through better transparency and accountability and through dialogue between the courts and parliament. When new policies are being developed, human rights principles will be used as framework. When laws are introduced to parliament, they will be assessed as to whether they are compatible with the human rights act. When a matter is taken to the courts, the courts will be able to either interpret laws to be consistent with the protected human right, or if this is not possible, to declare a law to be incompatible with human rights. Importantly, courts will not have the capacity to dismiss or invalidate laws. The final decision on how to deal with the incompatibility will always remain with the parliament.

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7. Would a human rights act protect ordinary people?

Yes. The Act would protect the rights of all people within Australia, with some rights related to participation in public life reserved only to citizens. Rights are fundamental to our democratic system and ensure that we can all live our lives with dignity.

While the question is sometimes raised as to whether a human rights act will be used only to assist celebrities and criminals, the experience in the UK shows that its Human Rights Act has assisted young people, older people, victims of domestic violence, parents, asylum seekers, people living with mental illness, people with disabilities and others facing discrimination, disadvantage and exclusion. Read more at the British Institute of Human Rights website.

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8. What rights should be included in a human rights act?

This is rightly a question for extensive community discussion and debate. For a human rights act to achieve its goals it must reflect a set of values and ideals that resonate widely within the community.

In our Model Bill we have included both civil and political rights and economic, cultural and social rights. All the rights included are based on those in the major international covenants that Australia has ratified.

By contrast, in the ACT and Victoria, the governments opted to include a limited range of civil and political rights for now, with the option of increasing the list of protected rights in the future. We welcome debate on which approach Australians would prefer.

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9. Would a human rights act include responsibilities too?

Most rights are not absolute and in fact depend on the responsibility of everyone in society to respect one another’s freedoms. The freedom of expression for example, is limited by privacy rights and obligations not to incite racial hatred or violence.

The preamble of our Model Bill recognises that responsibilities are the (moral) counterpart to rights. It states:

“The exercise of human rights implies corresponding responsibilities. It is every individual’s responsibility to respect the rights of others, observe the law, engage in useful activity and accept the burdens and sacrifices demanded for the common good.”

It is hoped that a human rights act would promote tolerance and respect in society which would in turn promote a greater commitment to our responsibilities.

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10. Do other countries with similar systems of law and government have human rights acts?

Yes. Australia is the only democracy in the world without a human rights act or similar.

Canada, the United States and South Africa all have a bill of rights in their constitutions. The United Kingdom and New Zealand have legislative human rights acts. (See question 5 above for the difference between constitutional and legislative bills of rights). These countries, with similar political structures and histories, have all recognised the need to protect important rights from the exercise of arbitrary government power.

This now places the Australian legal system in a state of judicial isolation when deciding matters involving human rights. International jurisprudence, which has helped shape our common law for centuries, can no longer be relied on as all the other commonwealth countries now decide these matters within the framework of a human rights act or a bill of rights. This puts in jeopardy one of the major checks and balances in our system.

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11. Have human rights acts in other countries led to increases in litigation?

In the UK, statistics show that in the first year there was only a very small increase in the total work of the courts. Senior judges there commented that the Act had complemented the system rather than disrupted it.

A five year review of the UK law found that the overall impact on UK law had been positive. The full report can be found at the UK Department of Constitutional Affairs. In terms of remedies, the interpretation provision had been used by the courts on only 12 occasions since 2000 and there had been 20 declarations of incompatibility made, 6 of which were later overturned.

The experience in New Zealand has taught us that while there may be an initial upsurge in litigation (most noticeably in the area of criminal law) it is temporary and usually decreases in a short period of time.

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12. Will a human rights act stop the government from protecting national security?

No, a human rights act will not stop the government taking strong and decisive action on issues of national security. There may well be situations in which rights need to be limited in the public interest. When this happens, the limitation must be fully explained and justified as being reasonable and proportionate to the achievement of a legitimate aim. In this way rights and duties can be balanced through a transparent process.

In a public emergency parliament will be able take measures that override all but a few ‘absolute’ rights. These rights that may never be interfered with include the protection against torture and cruel, inhuman or degrading treatment and the prohibition against slavery.

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13. If a bill of rights didn’t stop atrocities in the Soviet Union under Stalin, how will it be of benefit to Australia?

A bill of rights alone is not a guarantee against human rights abuses. It exists within a country’s system of law and government. Where that system is broken or dysfunctional a bill of rights can be ignored.

In Australia we have a robust system of law and government. A central tenet is the ‘rule of law’ which means that the law applies equally to all and no one is above the law. In the USSR there was no democracy and no rule of law. Stalin was able to ignore the bill of rights by placing himself above the law.

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14. Why doesn’t Australia’s constitution include a bill of rights?

When the Australian Constitution was being written, the founders considered including a bill of rights but chose not to. Among the reasons for not including a bill of rights was to enable the parliaments to make racially discriminatory laws such as the White Australia policy. We should be mindful also that these same founding fathers excluded Aboriginal people from being included as Australian people in the census. Prevailing attitudes to fundamental rights and how all people should be treated have thankfully changed.

Australia’s Constitution is one of the oldest in the world and has been remarkably resistant to change. For this reason, a legislative model is appealing for its ability to adapt over time.

Again, our campaign encourages public debate on the issues so that the widespread community support for human rights can be translated into a real understanding of the issues and a broad base for specific change.

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15. Why are there so many different terms used – “human rights act”, “charter”, “model bill” and “bill of rights”?

There is some confusion about what these different terms mean and how they differ. Generally speaking, a “bill of rights” refers to a list of rights which forms part of a country’s constitution. By contrast, a “human rights act” or “charter of human rights” refers to an ordinary piece of legislation passed by parliament. For how these instruments differ in effect, see Question 5 above: Why a legislative “Human Rights Act” rather than a constitutional “Bill of Rights”?

To complicate the issue, an “act” or “charter” that has not yet passed through parliament is referred to as a “bill”. That is why we refer to our “model bill” which is a proposed piece of legislation that has been drafted by our campaign following national consultation but which has not been passed by parliament.

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Read on to learn about Our Campaign or refer to Links for additional human rights information.