NSW Council for Civil Liberties celebrates the 70th anniversary of the Universal Declaration of Human Rights
Today marks the 70th anniversary of the Universal Declaration of Human Rights. Due to the historic vote on 10 December 1948, today is known as Human Rights Day.
President of the New South Wales Council for Civil Liberties (CCL) Pauline Wright said, “The Universal Declaration of Human Rights was a seminal declaration by countries across the world, that human rights are fundamental, intrinsic, and inalienable. Nations across the globe saw the horrors of World War II, and determined to establish a new world order, based on respect for political, civil, social, economic and cultural rights.”Read more
The NSW Council for Civil Liberties (CCL) has condemned the push by the Federal Government to advance new laws further stripping away the rights of Australians.
The text of the new bills has not been released. According to the Prime Minister Scott Morrison, they will impose conditions on the control, return and re-entry of Australians who have been in conflict zones. They will also make it easier to strip citizenship from Australians who have been convicted of terrorism offences.Read more
The National Health and Medical Research Council has published draft ethical guidelines on the use of assisted reproduction technology in clinical practice and research.
Responding to an invitation to comment, the NSWCCL has made a submission that supports these draft guidelines, applauding the NHMRC for their support for the autonomy of all involved and their rights to detailed, accurate, contemporary and relevant information concerning the procedures, legal consequences and otherwise of their decisions.
Some questions for which further comment is requested of the NHMRC include, (1) Payment for the risks and labour involved in egg donation, (2) Sex selection on non-medical grounds, and (3) the potential establishment of an Australian egg bank.
Human Rights Watch, in its World Report 2015, comments on the Australian government’s human rights record in 2014, stating that the government's failure to respect international standards protecting asylum seekers and refugees continues to take a heavy human toll and undermines Australia’s ability to call for stronger human rights protections abroad. HRW reports on the introduction of new counterterrorism measures, describing them as 'overboard,' stating that the measures would infringe on freedoms of expression and movement. The report also highlights the government's failure to take action to address indigenous rights and disability rights.Read more
Yes, it does. The UN Human Rights Committee (UNHRC) has found on several occasions that Australia has breached the fundamental human rights of people living in Australia.
In 1980 the Fraser government ratified the International Covenant on Civil and Political Rights(ICCPR), one of the main international human rights treaties. In 1990 Australia acceded to the First Optional Protocol to the ICCPR, which allows individuals to take complaints about violations of their human rights to the UN Human Rights Committee.
Since 1990 the UNHRC has heard almost fifty complaints against Australia. In seventeen (17) of those cases, the UNHRC found that Australia violated ICCPR rights. While some Australians find it embarrassing or outrageous that a foreign tribunal can sit in judgment of Australia, Australia does not have a Bill of Rights so our own courts cannot hear complaints about human rights violations.
The table below summaries those violations. The table is followed by a summary of each case.
|description of violation||government response|
|Tasmanian anti-gay laws violate right to privacy||legislation repealed|
9(1) & 9(4)
|mandatory immigration detention is arbitrary detention||ignored|
17(1), 23 & 24(1)
|deportation of parents of Australian child is arbitrary interference with family, and fails to protect the family unit and the rights of children||have not been deported|
|two years for a court to bring down judgment violates right to a speedy trial||no response required|
7, 9(1) & 9(4)
|returning a mentally-ill man to immigration detention is cruel, inhuman and degrading treatment, and mandatory immigration detention is arbitrary detention||not deported|
|Cabal & Pasini||
|holding two men together in a very small prison cell violated their right to be treated with dignity in prison||men left Australia voluntarily|
|federal law that discriminates against gays violates the right of everyone to equal treatment by the law||ignored|
9(1) & 9(4)
|mandatory immigration detention is arbitrary detention||ignored|
9(1), 9(4) & 24(1)
|mandatory immigration detention is arbitrary detention and keeping children in detention for two years violates duty to protect children's rights||deported|
10(1), 17(1), 23 & 24(1)
|returning a mentally-ill man to immigration detention violates his right to be treated with dignity in detention, deportation of father is arbitrary interference with family, and fails to protect the family unit and the rights of children||not deported|
|Australia does not provide a general mechanism to challenge laws that violate human rights||pending...|
10(1), 10(3), 24(1)
|holding a disabled juvenile Aboriginal man in solitary confinement, exposed to artificial light for extended periods and deprived of his blanket and clothes in a NSW adult prison violates his right to humane treatment & was inappropriate for his age.||pending...|
|D & E||
|mandatory immigration detention is arbitrary detention||granted temporary humanitarian visas in March 2006|
|Queensland laws restricting people from delivering non-violent speeches in public malls are a violation of freedom of speech.||pending...|
9(1) & 9(4)
|mandatory indefinite immigration detention is arbitrary detention||pending...|
9(1) & 9(4)
|mandatory indefinite immigration detention is arbitrary detention||pending...|
|refusing an unrepresented prisoner the right to appear in court violates the fundamental principle of equality before the law||pending...|
UN Doc CCPR/C/50/D/488/1992 (4 April 1994)
Mr Toonen complained that Tasmanian laws criminalising consensual sex between adult males in private: were a violation of his right to privacy; distinguished between people on the basis of sexual activity, orientation and identity; and, meant that homosexual men in Tasmania did not enjoy equality before the law.
The UNHRC found that the Tasmanian laws were not reasonable in the circumstances and amounted to an arbitrary interference with Mr Toonen’s right to privacy under article 17(1) of the ICCPR. The Committee recommended that the laws be repealed.
In response to the Tasmanian Parliament’s refusal to repeal the offending laws, the Federal government passed the Human Rights (Sexual Conduct) Act, which prohibits the making of laws that arbitrarily interfere with the sexual conduct of adults in private. In 1997 in the case of Croome v Tasmania, the High Court of Australia struck down the Tasmanian laws on the grounds that they were inconsistent with the Federal Human Rights (Sexual Conduct) Act.
UN Doc CCPR/C/59/D/560/1993 (30 April 1997)
Mr A, a Cambodian asylum seeker, arrived in Australia in 1989. He was held in mandatory immigration detention for over four years and this formed the basis of his complaint.
The UNHRC concluded that Mr A’s indefinite and prolonged detention was arbitrary: a violation ofarticle 9(1). The Committee also determined that Australia had violated Mr A’s right to have his detention reviewed by a court: a violation of article 9(4).
In coming to its conclusions the Committee noted that detention authorised by law can still be arbitrary if it is inappropriate, unjust, unnecessary or disproportionate to the end sought – even if entry into Australia was unauthorised. Significantly, the Committee observed that review of the lawfulness of detention must include consideration of the human rights listed in the ICCPR, which is something Australian courts cannot do.
In December 1997 Australia formally rejected the Committee’s findings and refused to compensate Mr A.
UN Doc CCPR/C/72/D/930/2000 (16 August 2001)
Mr and Mrs Winata both overstayed their visas and were unlawful residents in Australia. In 1998 they unsuccessfully applied for refugee status and the Department of Immigration ordered their deportation.
Mr and Mrs Winata complained that deporting them was arbitrary and unreasonable because it would split up their family. Their thirteen year old son Barry, an Australian citizen, had lived his whole life in Australia, only spoke English and would not fit in well in Indonesia.
Noting that the Winatas had lived in Australia for 14 years, the Committee concluded that if Mr and Mrs Winata were deported, then Australia would be arbitrarily interfering with the family, in violation of article 17(1), breaching its obligations to protect families, in violation of article 23, and to protect children, in violation of article 24(1).
As of July 2002, Mr and Mrs Winata had not been deported. Their future remains uncertain.
Note: the official government response rejected the findings of the UNHRC.
UN Doc CCPR/C/74/D/802/1998 (15 April 2002)
Mr Rogerson is a lawyer who was tried in the Northern Territory for contempt of court. He complained that it took the court almost two years to deliver its judgment.
The UNHRC found that the delay violated Mr Rogerson’s right to be tried without undue delay (article 14(3)(c)).
UN Doc CCPR/C/76/D/900/1999 (13 November 2002)
Mr C, an Iranian national, was detained as a ‘non-citizen’ in July 1992. In 1993 a psychologist recommended his release, because his mental health was deteriorating rapidly. Mr C was finally released in August 1994 with severe psychiatric problems. In 1996 he received a 3½ year prison sentence for aggravated burglary and making death threats to a relative. In 1997 the Immigration Department ordered his deportation as a criminal non-citizen.
Mr C complained that his detention by Australia had triggered the mental illness which was responsible for his criminal behaviour. He also feared persecution in Iran.
The UNHRC concluded that Mr C’s mandatory immigration detention was arbitrary because it was unnecessary, there was no individual justification and there was no chance of substantive judicial review: violating articles 9(1) and 9(4).
The Committee also found Australia in violation of article 7 (‘cruel, inhuman or degrading treatment or punishment’) because it had continued to detain Mr C even after becoming aware that his mental deterioration was the direct result of his detention. The Committee also warned Australia that, having recognised the need to protect Mr C from persecution in Iran, to deport him would be another violation of article 7.
Mr C has been released into the care of his family. A decision is expected later in 2003 on whether his refugee visa will be reinstated.
UN Doc CCPR/C/78/D/1020/2001 (29 August 2003)
Mr Cabal and Mr Pasini were both arrested in Australia in 1998 at the request of Mexico. On 17 December 1999 both men were held together for an hour in a ‘cage’ described as ‘about the size of a telephone booth’ and so small that two people could not sit down at the same time.
Messrs Cabal and Pasini complained that in prison they were not segregated from, or treated differently to, the general prison population, despite the fact that they were accused of no crime in Australia. For technical reasons these complaints were dismissed.
However, the UNHRC concluded that holding two men in a small cell, even if only for an hour, violated their right to be treated with humanity and respect while incarcerated, violating article 10(1). The Committee recommended that the men be compensated for this violation.
Both men have now returned voluntarily to Mexico. Neither have been compensated.
UN Doc CCPR/C/78/D/941/2000 (12 August 2003)
In 1999 Mr Young applied for a war veteran’s dependant pension. The Federal Department of Veteran Affairs refused to consider his application because his partner of 38 years was also male. The relevant law stated that to be a ‘member of a couple’ the persons must be ‘of the opposite sex’. Mr Young complained that he was being discriminated against on the grounds of his sexual orientation.
The Committee found that Australia had denied Mr Young his right to equality before the law and equal treatment of the law, in violation of article 26 of the ICCPR. The Committee recommended that the law be changed to allow the Department to consider Mr Young’s application on its merits.
In September 2003 the Australian Senate passed a motion calling for an end to discrimination against same-sex couples in Federal law. In August 2004, the Australian Parliament passed more discriminatory laws banning same-sex marriages.
UN Doc CCPR/C/78/D/1014/2001 (12 August 2003)
In June 1999 Mr Baban, an Iraqi Kurd, and his infant son arrived in Australia without travel documents. Their application for refugee status was unsuccessful. In June 2001 Mr Baban and his son escaped from the Villawood Detention Centre in Sydney.
Mr Baban complained that he and his son were treated inhumanely in detention. He also complained that he feared torture and serious mistreatment if returned to Iran.
The UNHRC concluded that their detention was arbitrary and not open to judicial review: violations of articles 9(1) and 9(4).
In 2003, Mr Baban and his son were still on the run from immigration authorities.
UN Doc CCPR/C/79/D/1069/2002 (29 October 2003)
In October 1999, Mr Bakhtiyari arrived in Australia from Afghanistan on a boat as an asylum seeker. He was detained in an immigration detention centre. In May 2000 Mr Bakhtiyari was granted refugee status and relased into the community.
In January 2001 Mrs Bakhtiyari arrived in Australia by boat with their children. They were detained in an immigration detention centre. Mrs Bakhtayari was refused refugee status. Mr Bakhtayari only found out that his family was in Australia in July 2001.
In December 2002, Mr Bakhtiyari's refugee visa was cancelled on the grounds that he had lied in his application for refugee status. In January 2003, the family was reunited - in an immigration detention centre. The psychological health of the children deteriorated and they self-mutilated. UN requests to release the Bakhtiyari family from detention, while there were outstanding court cases, were rejected.
In June 2003 the Family Court of Australia ordered that the children be released from detention.
The UNHRC found that the detention of Mrs Bakhtayari and the children for over 2 years was a violation of articles 9(1) and 9(4). The violation, with respect to the children, came to an end when the Family Court ordered their release.
The UNHRC found that Australia, by keeping the children in detention for so long when it was well-documented that they were suffering in detention, failed to protect the rights of the Bakhtiyari children in violation of article 24(1).
In April 2004, the High Court overturned the decision of the Family Court to release the Bakhtiyari children. On 30 December 2004, Australia deported the Bakhtiyari family to Pakistan.
UN Doc CCPR/C/81/D/1011/2001 (26 August 2004)
Mr Madafferi, an Italian tourist in Australia, overstayed his visa, which expired in April 1990. This made him an unlawful non-citizen. In August 1990, he met and married an Australian citizen. They lived together in Australia and by 1996 they had four children.
In 1996 Mr Madafferi applied for permanent residency as the spouse of an Australian citizen. In his application he disclosed that he had served time in prison in Italy. He also disclosed that he had recently been informed that he had, in his absence, been sentenced to more prison in Italy, but that the Italian government had extinguished his sentence and cancelled an outstanding arrest warrant. The Australian Immigration Minister rejected Mr Madafferi's residency application on the grounds that he was a person of "bad character".
Mr Madafferi was sent to an immigration detention centre in Melbourne, while he challenged this decision in the courts. Mr Madafferi's mental health declined in the detention centre. At the request of the UN, Mr Madafferi was transferred to home detention. When Mr Madafferi's court challenges had all failed, immigration officials took him back to the immigration detention centre. Three months later he was committed to a psychiatric hospital.
The UNHRC found that the decision to send Mr Madafferi to the detention centre the second time, when Australia knew that Mr Madafferi had mental health problems, was a violation of article 10(1).
The UNHRC noted that the Madafferis have four minor children, that Mr Madafferi has a mental illness (partially contributed to by Australia's treatment of him) and that the family would suffer hardship if they were forced to choose between following Mr Madafferi to Italy (neither Mrs Madafferi nor the children speak Italian, and they would have to look after their sick father in a foreign country) or splitting up the family by some members remaining in Australia. The UNHRC found that if Australia deported Mr Madafferi it would be arbitrarily interfering with the family, in violation of article 17(1), breaching its obligations to protect families, in violation of article 23, and to protect children, in violation of article 24(1).
As of June 2005, Mr Madafferi was still in Australia under immigration home detention.
Note: the official government response rejected the findings of the UNHRC.
UN Doc CCPR/C/85/D/1036/2001 (31 October 2005)
Bernadette Faure, a 21 year old Australian citizen, had her employment benefits cancelled for two months because she breached her "Work for the Dole" agreement three times in the space of two years. This meant that she was receiving no unemployment benefits at all during that time.
Ms Faure claimed that the Work for the Dole scheme was a form of forced or compulsory labour and therefore a violation of her human rights. Ms Faure attempted to challenge the law that set up the Work for the Dole scheme, but she discovered that there was no way to do this in Australia.
The UNHRC found that, under Australia's legal system, Ms Faure was unable to challenge a law that she claimed violated her human rights. The UNHRC found that this is a violation of article 2(3), which requires that everyone has the right to challenge a violation of their human rights provided their claim is 'sufficiently well-founded to be arguable' under the ICCPR.
The UNHRC found that the Work for the Dole scheme is not a form of compulsory labour. Therefore, Australia was not in breach of article 8 of the ICCPR.
UN Doc CCPR/C/86/D/1184/2003 (27 April 2006)
In February 1999 Corey Brough, a 17 year old Aboriginal youth, was sentenced to 8 months prison for burglary and assault. In March 1999 Mr Brough was transferred to the Parklea adult prison after he participated in a riot and held a guard hostage at the Kariong Juvenile Justice Centre in a protest against conditions. In Parklea, Mr Brough began to self-harm and was placed in a solitary confinement cell for 72 hours, where the artificial lights were on all the time and where he was stripped to his underwear and his blanket was taken away from him. Mr Brough suffers from a mild intellectual disability.
The UNHRC found that:
"In the circumstances, the author’s extended confinement to an isolated cell without any possibility of communication, combined with his exposure to artificial light for prolonged periods and the removal of his clothes and blanket, was not commensurate with his status as a juvenile person in a particularly vulnerable position because of his disability and his status as an Aboriginal."
The UNHRC found violations of: article 10(1), which requires that prisoners be treated humanely;article 10(3), which provides that juveniles be separated from adults in prison; and article 24(1)which requires that children be protected by society and the State without discrimination.
UN Doc CCPR/C/87/D/1050/2002 (11 July 2006)
A family of Iranian asylum seekers arrived in Australia by boat in November 2000. 'D' (mother) feared returning to Iran because she had worked in the illegal adult pornographic video industry in Iran (a strict Muslim country). 'D' and 'E' (father) and their two children were kept in mandatory immigration detention until 22 January 2004.
The UNHRC confirmed that Australia's mandatory immigration detention regime is a violation ofarticle 9(1), which guarantees the fundamental human right of liberty. Australia detained the family beyond a period that can be justified for making the necessary checks (ascertaining identity etc). The UNHRC concluded that:
"[Australia] has not demonstrated that other, less intrusive, measures could not have achieved the same end of compliance with [Australia's] immigration policies by resorting to, for example, the imposition of reporting obligations, sureties or other conditions which would take into account the family’s particular circumstances. As a result, the continuation of immigration detention for the authors, including two children, for [three years and two months], without any appropriate justification, was arbitrary and contrary to [article 9(1)] of the Covenant."
CCPR/C/87/D/1157/2003 (17 July 2006)
On 20 December 1998, Mr Coleman stood in the Townsville (Queensland) shopping mall and delivered a speech on various topics, including bills of rights, freedom of speech and land rights. He was charged, convicted and fined for 'taking part in a public address in a pedestrian mall' without a council permit. Mr Coleman refused to pay the fine.
On 29 August 1999, Mr Coleman again stood in the Townsville shopping mall (without a council permit) and delivered a speech. When police tried to remove him he sat down and refused to move. He was charged with failing to pay a fine and for obstructing police. He was arrested and held by police for five days.
The UNHRC noted that there are legitimate ground to restrict freedom of speech. The grounds are found in article 19(3) of the ICCPR. They include protecting the rights and reputations of others, and maintaining public order. The Committee noted that Mr Coleman's speech was not violent or threatening and did not pose a danger to public order. The Committee concluded that the council laws and the actions of police were disproportionate and therefore violated Mr Coleman's freedom of speech, which is a violation of article 19(2).
Note: the official government response rejected the findings of the UNHRC.
Postscriptum: Mr Coleman was again arrested in March 2000 in the Townsville Mall for distributing a pamphlet that described a particular police officer as 'corrupt'. The UNHRC was not asked to consider this incident. But in 2004, the High Court of Australia upheld Mr Coleman's constitutional right to freedom of political expression: seeColeman v Power  HCA 39.
For more information about free speech and local councils and in shopping malls, read: Katharine Gelber, 'Political speech practice in Australia: a study in local government powers'  Australian Journal of Human Rights 7.
CCPR/C/88/D/1324/2004 (13 November 2006)
In September 1999, Mr Shafiq arrived in Australia by boat as an asylum seeker. He fled political persecution in Bangladesh. He is stateless because Bangladesh says he is not from Bangladesh.
Mr Shafiq was refused a visa because he cannot prove who he is. Because he is stateless there is nowhere to deport him to. So he is being detained indefinitley in immigration detention. Australia will not release him into the community because it believes he will abscond.
In July 2005, as a direct result of his lengthy detention, Mr Shafiq was committed to a mental institution. The hospital in which he is receiving treatment does not have a fence and Mr Shafiq, if he desired, could escape at anytime. He has not done so.
The UNHRC confirmed that Australia's mandatory immigration detention regime is arbitrary and a violation of article 9(1), which guarantees the fundamental human right of liberty. This is the sixth time the UNHRC has made this determination. Australia continues to ignore the Committee and to violate the rights of people detained in immigration detention for lengthy periods.
The UNHRC noted that Australian courts can only decide whether a person is being lawfully detained in accordance with the Migration Act, without reference to fundamental human rights standards. The Committee reiterated its view that:
...the notion of “arbitrariness” must not be equated with “against the law” but be interpreted more broadly to include such elements as inappropriateness and injustice.
The Committee found a violation of article 9(4) because Australian courts cannot review Mr Shafiq's case in light of fundamental human rights.
CCPR/C/90/D/1255 (11 September 2007)
Mr Shams was one of eight Iranian nationals who brought this complaint to the UN Human Rights Committee. Mr Shams and the other seven complainants all arrived in Australia by boat seeking asylum.
All of the complainants were detained in mandatory immigration detention. Some of the men were detained for three years, others for four years.
The UNHRC confirmed that Australia's mandatory immigration detention regime is arbitrary and a violation of article 9(1), which guarantees the fundamental human right of liberty. This is the seventh time the UNHRC has made this determination. Australia continues to ignore the Committee and to violate the rights of people detained in immigration detention for lengthy periods.
The Committee found a violation of article 9(4) because Australian courts cannot review an asylum seeker's detention in light of fundamental human rights.
The Committee found a violation of article 2(3) because Australia refuses to compensate people who have been held for prolonged periods in mandatory immigration detention.
CCPR/C/90/D/1347/2005 (29 August 2007)
Miss Dudko was convicted of several charges relating to the theft of a helicopter that was then used to break an inmate out of prison in NSW in 1999.
Miss Dudko appealed her conviction to various courts. When Miss Dudko's matter came before the highest court in the land, the High Court of Australia, Miss Dudko was unrepresented. NSW prison officials refused to bring her to the court. Miss Dudko was also prohibited from representing herself by audiovisual link from prison.
The NSW Director of Public Prosecutions was represented by a lawyer in the High Court.
The UNHRC found that Miss Dudko's right to equal treatment before the law was violated: a violation of article 14(1) of the ICCPR. Essentially, the Committee found that it was unfair to allow the prosecution to attend the oral hearing but, at the same time, deny the appellant the right to be heard.
The text of the determinations of the UN Human Rights Committee is available at:
- Bayefsky Human Rights Website
- http://documents.un.org/ (use 'Advanced Search' and type in the UN Doc number)
- Universal Human Rights Index (use 'Search' and select 'Australia')
The federal Attorney-General's Department also maintains a webpage giving the offical government line on these human rights violations. The webpage is called: Human Rights Communications.
This page is based on an article that first appeared in the Human Rights Defender as: Michael Walton, "Are we listening to the United Nations? Australia and the UN Human Rights Committee" (2003) 12(3) Human Rights Defender 20.
professor george williams, the australian (17 april 2001).
While Australia has been debating the important symbolic issues raised by a republic, other countries have achieved significant reform in the field of human rights. We are now alone among comparable nations in not having a statement of basic rights.
The United States has had a Bill of Rights for over two centuries, while New Zealand, South Africa and the United Kingdom have drafted their own over the last decade. Each of the latter nations realised that human rights had not been well protected by their legal system, and that a framework was needed to define the relationship between people and their government.
For the last three months I have been based in Canada, another nation with a Bill of Rights. Canada is otherwise like Australia in having a written Constitution and a legal system derived from the United Kingdom. It also remains a constitutional monarchy and has its share of human rights concerns, ranging from the treatment of its Indigenous peoples to the struggle for legal recognition by same-sex couples.
Canada provides a glimpse of how a Bill of Rights might affect Australia. In 1960, its Federal Parliament passed the Canadian Bill of Rights, which was not constitutionally entrenched but merely an Act that could be repealed or amended. Two decades later, Canada decided to go further in adopting a Bill of Rights as part of its Constitution and in giving a greater role to the courts.
The Canadian Charter of Rights and Freedoms was enacted in 1982. The Canadian Charter protects a range of rights including freedom of expression, the right to equality and the right to be presumed innocent until proven guilty. It also has two novel features.
First, it instructs the courts that governments may limit rights under reasonable laws that ‘can be demonstrably justified in a free and democratic society’. Second, it provides that certain rights can be directly overridden where Parliament expressly states that its law is to operate notwithstanding the particular right.
The Canadian Charter is widely regarded as a success. It has protected fundamental rights, including those of the most vulnerable, and has led to a greater awareness of such issues amongst Parliamentarians and in the community. In a survey taken in 1988, 90 per cent of English Canadians and 70 per cent of French Canadians had heard of the Charter, with a large majority agreeing that it ‘is a good thing for Canada’. A survey in 2000 found strong community support for the Canadian Supreme Court, with 77 per cent ‘somewhat or very satisfied’ with its performance. It is not surprising that the Charter has been used as a model in nations including South Africa.
Australia, like Canada, should start with an Act of Parliament and not rush into constitutional entrenchment of fundamental rights. We need incremental change with community involvement and education rather than a once-and-for-all referendum. A Bill of Rights must be embraced by the people to have real value. This takes time.
In other respects, Australia should not follow the Canadian Charter. We need to develop a model that incorporates our aspirations and values. To achieve this, Australians should be involved in the drafting process by being able to make submissions to a Parliamentary committee or, even better, a body comprising both Parliamentarians and members of the community. The final list of protected rights should, at least initially, be a short one. It should only include rights - such as the right to vote and freedom from discrimination on the basis of race, sex or disability - that are widely supported and understood.
We should also depart from the Canadian model by placing greater emphasis on Parliaments rather than courts. The Charter refers too many social questions to the judges. We could avoid this by not including vague or contested notions such as a right to equality or a right to life. Legislation should also be examined by Parliamentary committees for compliance with the Bill of Rights. This would build Parliamentarians and the public into the rights protection process.
Ultimately, an Australian Bill of Rights should follow the Canadian model in providing that the protected rights are subject to reasonable limitations by Federal and State Parliaments, and that a Parliament may expressly override a right. Use of the override is likely to be rare given the political difficulties involved in expressly stating an intention to breach a right granted to, and popularly known by, the Australian people. This model would recognise the basic rights of Australians, while also balancing the roles of Parliament and the courts, with the final say being left to our elected representatives.
Because Australia has yet to enact a Bill of Rights, we have much to gain from examining the achievements of other nations. We should draft a Bill of Rights based upon our cultural values that adopts the best of the overseas models. Australia should not wait too long to begin this process. It is a necessary step in the continuing development of our democratic system.
© 2001 George Williams
George Williams is the Anthony Mason Professor and Director of the Gilbert & Tobin Centre of Public Law at the University of New South Wales. He is the author of A Bill of Rights for Australia.
Professor Williams has kindly given his permission to allow us to publish his article.
Even though Australia has signed all five international treaties that make up the the International Bill of Human Rights, none of these treaties are legally binding in Australia. Nor is there is a Bill of Rights in the Australian Constitution. This means that the fundamental rights and freedoms of everyone living in Australia are not protected by the law.
the majority of australians want a bill of rights and they want a say about whether it belongs in the constitution
In 1991-1992 the Research School of Social Sciences at ANU conducted a national survey of 1522 Australians and asked them about their attitude to rights. The report Rights in Australia 1991-1992found that 70.6% of Australians want a Bill of Rights (7.4% were against and 21.8% were undecided). The Survey also found that 85.9% supported a referendum to determine whether a Bill of Rights should be put in the Constitution. The majority of Australians (57.8%) also believe that a Bill of Rights would strengthen our national identity.
Nevertheless, Australia's politicians continue to deny Australians a Bill of Rights to protect our rights and freedoms. Why? Is it simply because a Bill of Rights would be an effective check and balance on their power? That would explain why Prime Minister Howard supports a Bill of Rights for Iraqis, but not for his own people.
ccl supports a human rights act for all australians
26 May 2004 (Sydney): The New South Wales Council for Civil Liberties expressed its support for an interim statutory Human Rights Act for all Australians. CCL remains committed to a constitutional Bill of Rights, but CCL accepts that in the meantime a strong statutory Human Rights Act would help to protect the rights and freedoms of all Australians.
CCL adopted a new policy document that will be sent to all CCL branches around the country for endorsement.
new matilda's human rights act
New Matilda is an online opinion magazine that has put together a draft Human Rights Act for all Australians. The Act was launched on 5 October 2005 at Sydney Town Hall. CCL supports this initiative and wishes New Matilda well with their project.
You can read CCL's comments on New Matilda's Bill.
pm supports a bill of rights...for iraq
14 April 2004 (Canberra): In a press conference today, the Australian Prime Minister John Howard expressed "very strong support" for a Bill of Rights for Iraq.
In the past the Prime Minister has stated he does not support Bills of Rights. So NSWCCL applauds Mr Howard's change of heart and his very strong support for Bills of Rights.
CCL encourages the Prime Minister to extend this very strong support for a Bill of Rights for the Iraqi people to the Australian people.
Australia is the only common law country without a Bill of Rights. Recently, the ACT passed the Australia's first Bill of Rights: the Human Rights Act 2004(ACT). CCL encourages the Prime Minister to examine the Human Rights Act and to pass a national equivalent.
Australia, like Iraq, deserves a Bill of Rights.
A bill of rights in NSW
In April 2007, the new NSW Attorney-General John Hatzistergos rejected the idea of a Bill of Rights for NSW. The previous Attorney-General had wanted a community consultation process on the issue of a Bill of Rights for NSW.
In April 2007, the NSW Charter Group was launched. The Charter Group is committed to seeing a Bill of Rights for NSW. CCL is a founding member of the Charter Group.
In 2001 the Parliamentary Inquiry into a NSW Bill of Rights reported that NSW did not need a Bill of Rights.
CCL believes that a Bill of Rights will help to protect and strengthen our democracy and its institutions in NSW. A Bill of Rights will protect the rights and freedoms of everyone in NSW.
CCL continues to lobby NSW Parliamentarians to push a Bill of Rights forward in NSW.
Victorian charter of human rights
Tuesday, 25 July 2006 (Melbourne): The Victorian Parliament passed the Victorian Charter of Rights and Responsiblities. The Charter will take legal effect from 1 January 2007. Victoria is the first Australian State to enact a Bill of Rights.
Tuesday, 20 December 2005 (Melbourne): The Attorney-General of Victoria, Mr Robb Hulls,announced that Victoria will introduce a Charter of Rights and Responsibilities. This will make Victoria the first Australian State to introduce a Bill of Rights (the ACT is a territory, not a State). The Victorian Charter will follow the UK and New Zealand models.
After a period of community consultation, the Victorian Human Rights Consulation Committeereleased its final report on its inquiry into whether Victoria should adopt a Bill of Rights.
1 August 2005 (Sydney): The New South Wales Council for Civil Liberties today released itssubmission to the Victorian Human Rights Consulation Committee's inquiry into whether Victoria needs a Bill of Rights. CCL encourage the Victorian Parliament to be bold & to embrace a Bill of Rights model that would offer effective protection of the rights and freedoms of its citizens and theat would strengthen its democratic institutions.
australia's first bill of rights
Tuesday, 2 March 2004 (Canberra): The Parliament of the Australian Capital Territory, a self-governing Australian territory, passed Australia's first Bill of Rights. The Human Rights Act 2004(ACT) will help to protect such fundamental rights as freedom of expression, religion and movement.
tasmania to consider bill of rights
9 February 2006 (Hobart): Tasmanian Attorney-General, Ms Judy Jackson, has announced that Tasmania will examine options for protecting human rights. One of those options involves legislating a Human Rights Act.
Ms Jackson has asked the Tasmanian Law Reform Institute to consult the public on the issue.
You can read CCL's submission to the inquiry into a Tasmanian Charter of Rights, which argues that Tasmania should examine the Canadian experience closely. In Canada they have a constitutionally-entrenched Charter of Rights which both respects parliamentary sovereignty andallows the courts to strike down legislation that violates the Charter.
In May 2007, the Western Australian Attorney-General, Jim McGinty, announced a community consultation on whether WA needs a Human Rights Act.
You can read more on the WA Human Rights Act website.
queensland rejects a bill of rights
In November 1998, the Queensland Legislative Assembly's Legal, Constitutional and Administrative Review Committee recommended against adopting a Bill of Rights to protect everyone in Queensland.
The full report was called: ‘The Preservation and Enhancement of Individuals’ Rights and Freedoms in Queensland: Should Queensland Adopt a Bill of Rights?’.
NSWCCL supports a human rights act for all Australians
The NSW Council for Civil Liberties supports a constitutionally-entrenched federal Bill of Rights for all Australians. The Council also supports the interim measure of instituting a statutory Human Rights Act: to encourage a rights culture in Australian; and to provide Australians with the opportunity to become accustomed to the idea of a Bill of Rights.
Australian law, as it currently stands, does not protect even the most fundamental rights that Australians assume they have. For example, the law does not fully protect freedom of religion or freedom of speech. A Bill of Rights, however, will protect these fundamental rights and freedoms.
Does Australia violate human rights?
Yes, it does. The UN Human Rights Committee has found on several occasions that Australia has breached the fundamental human rights of people living in Australia. And without a Bill of Rights, Australians can only complain to the UN, not to Australian courts!