Does Australia need a National Human Rights Act?

Australia is the only Western liberal democracy that does not have a nationally implemented Human Rights Act or equivalent within domestic legal frameworks. Currently, human rights protections are spread among various pieces of legislation, and these do not comprehensively cover all aspects of human rights. Recently, the question of whether or not Australia should adopt an act has gained prominence within political and social discourse.

Despite lacking a national Human Rights Act, Australia has a strong record of supporting human rights both internationally and domestically through anti-discrimination laws. However, this has not sufficed, and the United Nations (UN) High Commissioner for Human Rights has called for Australia to establish a Human Rights Act. Domestic support for an act has also increased in recent years, with 70 percent of Australians supporting the introduction of a Human Rights Act when informed of its absence.

Human Rights in Australia

At present in Australia, the Australian Capital Territory, Queensland, and Victoria are the only states that have their own human rights laws. Nationally, human rights are defined by a combination of international, federal, and common law, as well as Constitutionally. While Australian federal legislation includes specific anti-discrimination laws that protect individuals from discrimination on the basis of sexuality, gender, age, race, and disability, it is important to note that this does not include religion.

Australia is also a signatory to the seven core international human rights treaties. While these treaties set important international standards, they are not enforceable or legally binding. Their implementation relies on domestic laws, and until they are agreed to by the Senate and House of Representatives, they are not legally binding.

The Australian Human Rights Commission (AHRC) is the national body that is responsible for protecting and promoting human rights. The AHRC investigates and conciliates complaints about discrimination and human rights abuses, and advocates for the consideration of human rights in both laws and policy to the government. The Parliamentary Joint Committee on Human Rights (PJCHR) is a more recently established body that thoroughly examines all bills introduced to Parliament to ensure their compatibility with the seven core human rights treaties.

In early 2023, Attorney-General Mark Dreyfus announced an inquiry into Australia’s human rights framework, with the report published in May of this year. It also recommends the introduction of an Australian Human Rights Act. The AHRC has also recently recommended a Human Rights Act for Australia as well as a national framework. A key critique of the current system is its reactive nature, addressing violations only after they occur. So, despite the two key bodies within Australia that are designed to uphold human rights standards advocating for a Human Rights Act, why has one not been introduced?

Why Australia lacks rights protections

The AHRC report found that the current federal protection of human rights is inadequate, and an Australian Human Rights Act is needed to address the gaps. Access to human rights protection should be consistent, regardless of location or government level. The Commission also recommends the inclusion of economic, social, and cultural rights; for instance the right to an adequate standard of living, education, and the right to the highest attainable standard of physical and mental health. Public submissions received by the report overwhelmingly favoured the introduction of a Human Rights Act that aligns with international treaties to which Australia has agreed to be bound.

Supporters of an act often reference policy failures such as Robodebt and findings from the Disability Royal Commission, which highlight the outdated and ineffective nature of the existing framework. In addition, the current housing crisis within Australia also demonstrates the lack of human rights for Australians, as there is little people can do if they are threatened with eviction. A bill of rights would positively impact the day to day lives of Australians by clarifying individual rights when the current protections leaves victims without recourse to address human rights abuses.

Critics of an Australian Human Rights Act argue that specifying human rights protections could limit rights to only those listed. The risk is that this could foster a culture that inverts this principle and uses them as a loophole. This could also lead to a culture of entitlement, prioritising individual rights over community responsibilities.

Critics also argue that Australia’s legal system is already sufficient, and that an Act could become a tool for litigation, increasing the burden on the court system. They also note the fact that legislation often evolves slowly, as reform relies heavily on the government of the day. A prominent example of this is the United States’ rights regime, which is embedded within the Constitution and is difficult to reform.

What would it look like?

If implemented, a Human Rights Act would require all legislation and government action to align with the human rights framework before roll-out. Most notably, the act would provide an avenue for people to take action against injustice when their rights are abused.

The Australian Human Rights Institute notes a statutory bill of rights could be changed by the Commonwealth Parliament and remain relevant by evolving and adapting to societal changes. The trade-off is that the bill could be easily changed by the government of the day, but perhaps this is the price to pay to avoid the stalling experienced by more rigid systems. Most notably, the adoption of a bill of rights would send a strong signal to the international community that Australia is committed to human rights protections.

It is ultimately up to the government to decide whether to accept the recommendations and, if so, for Parliament to vote on the matter. The House of Representatives has previously defeated an Australian Bill of Rights. It remains unclear what stance the Albanese government will take on this issue today.

This article was published by the Australian Institute for International Affairs.