Frequently Asked Questions about the Human Rights Act

What are human rights?

Human rights refer to the basic standards of treatment to which all human beings are entitled. Many of the rights we take for granted are, in fact, human rights – the right to vote, freedom of speech and religion, and protection from discrimination. When human rights are given legal effect they protect people against the actions of government.

Human rights also promote respect for others in the community.

What is a Human Rights Act?

A Human Rights Act is a legislative, rather than constitutional, bill of rights. It protects rights through the interaction of the three institutions of government – the executive, the parliament and the courts. It encourages more-responsible law making by promoting robust debate in the parliament and the community. In this way it also strengthens our democracy.
What rights are currently protected by law?

Very few rights are protected under Australian law. Unlike many other countries, our Constitution has no bill of rights. Our Constitution does guarantee some limited rights including freedom of religion, freedom from discrimination on the basis of state of residence, trial by jury, and acquisition of property on just terms. However, these rights only apply to federal, but not state, laws and have been defined narrowly by the High Court.

There are also some implied rights in the constitution but these, too, are narrowly defined. Federal and state legislation are also a source of protection for some rights; for example, the Race Discrimination Act 1975 and the Sex Discrimination Act 1984. However, Australia is yet to introduce legislation to protect the full range of rights that it has recognised.

The common law also protects a limited range of rights. The common law refers to decisions made by judges. These decisions create precedents that bind future judges. In this way the body of law grows and adapts. The common law concentrates on providing administrative and procedural methods of protecting rights rather than describing any specific human rights protection.
Why a legislative bill of rights? Why not a constitutional one?

Bills of rights come in different shapes and sizes. Constitutional bills of rights make rights absolute (or close to it), meaning they ‘trump’ other laws. Rights entrenched in a constitution are also difficult to change. Legislative bills of rights are contained in an ordinary piece of legislation and can be altered by the parliament.

A Human Rights Act – legislative bill of rights – would be able to operate within our existing system of government without altering its fabric or the existing balance between the parliament and the courts. It represents an effective method of protecting rights that respects the traditions and history of our government and its institutions. It is a flexible, not rigid, way of allowing our system to get used to the idea of rights.

A constitutional bill of rights would represent a significant change for our system of law and government. It would require a referendum to bring it about. Rights would be introduced into our system and would be elevated to supreme or absolute status.

A legislative bill of rights would not prevent a referendum from taking place at a later stage to decide whether to introduce a constitution bill of rights. Canada began with a legislative bill of rights before entrenching rights into its constitution through its Charter of Rights and Freedoms 1982 (though because of its constitution it did not require a referendum to make this change).
Is it true that a Human Rights Act would only protect terrorists and criminals?

A Human Rights Act would protect the rights of ALL people within Australia. Everybody has rights and everybody needs rights. They are fundamental to our democratic system and ensure that we can live our lives with dignity. Some rights are not meant to be limited – e.g. the protection against cruel and unusual punishment. Other rights help us determine who is guilty and who is innocent – e.g. the right to a fair trial. Other rights are only for citizens – e.g. the right to vote and run for public office. The consultation phase will determine what rights should and shouldn’t be protected by law.

Would a human rights act transfer power to unelected judges and thereby undermine parliamentary sovereignty?

Parliamentary sovereignty refers to the fundamental power of the parliament to make laws for the governance of Australia. Supporters of a Human Rights Act  recognise the importance of parliamentary sovereignty. That is why they are proposing a legislative rather than constitutional model for the protection of rights. The legislative model encourages rights protection through dialogue between the courts and parliament without taking power away from the parliament. The courts will be able to declare that laws are incompatible with human rights but the final decision on what to do about the incompatibility will remain with the parliament. Judges will therefore not havethe capacity to dismiss or invalidate laws.

Opponents of a bill of rights like to remind people that the USSR had a bill of rights which didn’t stop human rights abuses. Why would this be different?

A bill of rights is not a guarantee against human rights abuses. It exists within a country’s system of law and government. Where that system is dysfunctional or broken – as was the case in the USSR – a bill of rights can be ignored. In Australia we have a robust system of law and government and we have an important principle known as the ‘rule of law’ which means that the law applies equally to all – to the government, to the people and to companies. It means that no one is above the law. The rule of law did not exist in the USSR and hence the government was able to ignore the bill of rights.
Would a Human Rights Act limit rights?

A clause was placed in the draft Human Rights Bill to ensure that it does not limit any pre-existing rights. This is a clause common to legislative bills of rights in other countries. Some people also argue that just by trying to define rights, they are somehow limited. We reject this argument. Defining rights doesn’t limit them; it preserves and protects them. At present, because the law does not recognize or define many rights, it is easy for them to be eroded. We saw this when the government introduced the anti-terrorism laws late last year.
Will a focus on human rights promote selfishness and individualism?

Human rights promote tolerance and respect for diversity. They acknowledge that everyone deserves to be treated with dignity regardless of race, ethnicity, gender or sexual orientation. A Human Rights Acts therefore can act as a statement of respect and of values.

It can then serve an educational function. The result will be a more tolerant and cohesive society not one ruled by individualism and self-interest.
Will a focus on rights undermine responsibilities?

The preamble recognizes that the ‘exercise of human rights implies corresponding responsibilities’. People have a 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. We also believe that tolerance and the respect that will accompany a Human Rights Act will promote a greater commitment to responsibilities.

Have Human Rights Acts led to an increase in the amount of litigation in the countries where they have been enacted?

Statistics show that in the year following implementation of the United Kingdom’s Human Rights Act there were only very small increases in the total work of the courts (see In fact, senior judges in the UK have concluded that the Act has not disrupted the system at all, but has complimented it. Furthermore, experience in New Zealand has taught us that while there may be an initial upsurge in litigation (most notably in the area of criminal law) it is temporary and usually decreases in a short period of time. Finally, in Australia, the ACT Human Rights Act has not ‘opened a Pandora’s box’ as was claimed by its most vocal opponents. After one year in office it had been cited in 10 judgments, suggesting the judiciary was careful in its application of the Bill (Gabrielle McKinnon, The ACT Human Rights Act – The First Year,presented at Assessing the First Year of the ACT Human Rights Act Conference, 29 June 2005).
Why doesn’t Australia have 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 the realization that it would prevent the states from passing legislation to discriminate against immigrant workers and people hoping to immigrate to Australia (White Australia Policy). It would also have made it difficult for the government to discriminate against Indigenous people.
What types of bills of rights do other countries have?

Canada, the United States and South Africa have bills of rights in their constitutions. This means that they are difficult to change and the rights are absolute (or close to it). The United Kingdom, New Zealand and the Australian Capital Territory have legislative bills of rights. The Victorian government has announced that it plans to introduce a legislative Charter of Rights and Responsibilities some time this year.

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