Version of 5 March 2017
Australia is in a highly unusual position in comparison with most countries around the world, in that almost no human rights are enshrined in the Constitution. The sole rights in the Constitution relate to freedom of religion (s.116), just terms compensation (s.51(xxxi)), trial by jury – which has been gutted by a High Court decision (s.80), and a very limited right of access to the High Court (s.75). In addition, the High Court has found a limited implied right of freedom of public discussion of political and economic matters. There may or may not also be limited implied rights to vote, and to due process of law. (The Australian Constitution was a political success, but created a legal mess).
A scatter of human rights protections exists in the federal and the 6 State and 2 Territory jurisdictions, some as a result of constitutional provisions, and others in existing statutes. However, the coverage falls a long way short of being comprehensive, and in many circumstances the 'rights' provided are unenforceable.
The International Covenant on Civil and Political Rights (ICCPR) specifies a wide range of protections relevant to privacy, as follows:
Some further rights have been expressed, in particular in the International Covenant on Economic, Social and Cultural Rights (ICESCR) – nominally in force in Australia since 1976, the UN Convention on the Rights of the Child – nominally in force in Australia since 1991, the UN Convention on the Rights of Persons with Disabilities – since 2008, and the UN Declaration on the Rights of Indigenous Peoples of 2007 – which Australia voted against. Whereas the ICCPR has been acceded to by the large majority of countries, the other conventions are less widely adopted.
Australia acceded to the ICCPR in 1972. Arts. 2 and 17.2 create express obligations on all Australian Parliaments to ensure that all human rights expressed in the document are protected, with effect from 1980, and that they are enforceable and enforced. Yet every Australian Parliament has failed to fulfil its obligations under ICCPR.
Human Rights laws were passed in the ACT in 2004 and Victoria in 2006. However, they are very meek instruments that lack any meaningful enforcement measures, and that have failed to provide the necessary protections for human rights. One particularly relevant aspect of these two statutes that makes them close to worthless is that they contain the wording of ICCPR Art.17.1, but they completely omit the enforcement requirements of Art.17.2.
1. It is strongly preferable that at least the human rights expressed in ICCPR be entrenched in the Australian Constitution, in a form that ensures that they are enforceable.
Among the many deficiencies of the Constitution, and of Australian political processes, is the great difficulty of achieving constitutional reform. So APF accepts that interim measures are appropriate, so that Australians can experience effective human rights protections, and their benefits will become evident to all.
2. All Australian Parliaments need to enact legislation that ensures that all human rights expressed in ICCPR are implemented, and in such a manner that the rights are comprehensive, non-discriminatory, enforceable, and enforced.
A quite critical aspect of enforceability is a privacy right of action.
The APF applauds the Queensland government's commitment to enact a Human Rights Act, and supports the efforts in Tasmania to get a Bill of Rights onto the political agenda – provided that the statutes satisfy the vital criteria and are comprehensive, non-discriminatory, enforceable, and enforced.
3. The legislation needs to be conceived so as to lay the foundations for entrenchment in the Constitution at an appropriate stage.
This path was successfully followed by Canada, with federal statutes in 1960 and 1977, and similar measures in its provinces and territories, leading to a constitutional amendment in 1982.
AHRC (2006) 'How are human rights protected in Australian law?' Australian Human Rights Commission, 2006, at https://www.humanrights.gov.au/how-are-human-rights-protected-australian-law
AHRC (2015) 'Rights and freedoms: right by right' Australian Human Rights Commission, 2015, at http://www.humanrights.gov.au/rights-and-freedoms-right-right-0
APF (2011) 'Policy Statement re a Privacy Right of Action' Australian Privacy Foundation, July 2011, at http://www.privacy.org.au/Papers/PRoA.html
Relevant Australian Laws:
Canadian Human Rights History pages: