People in Australia value the notion of a “fair go” and believe we are generally doing well when it comes to upholding human rights at the global stage. Yet Australia remains the only democracy without a constitutionally enshrined or legislated national bill or human rights act.
Human rights cannot exist simply as ideals, experience across the world has shown that their practical effect must be safeguarded through education, oversight mechanisms and legislative reform. Human rights in Australia are not protected by a comprehensive robust mechanism, but by scattered federal laws, common law and state-based legislation, creating a patchwork that has been criticised domestically and internationally for its inadequacy. These failures have been repeatedly identified over the last decade by Royal Commissions, international treaty committees and Parliament’s own Human Rights Committee.
Why pursue a Human Rights Act
Legislating a human rights act would improve everyone’s lives by promoting respect for human rights, and require governments and agencies to consider them when making laws, policies and delivering services. This helps governments identify and address human rights issues early in policy development and show how human rights have been considered.
An Act would also require new laws be assessed in Parliament against human rights standards, and only allows human rights to be limited when there is a good reason and using the least restrictive measure possible.
An Act would promote community understanding of human rights and if a government doesn’t properly consider human rights, it gives people the power to take action. It would require courts to interpret laws consistently with human rights, though ultimately, courts can’t invalidate laws that breach human rights as parliaments have the final say on legislation.
Over the last 50 years many countries have implemented a Human Rights Act – like New Zealand, the United Kingdom, and South Africa – improving people’s lives in those countries in small and big ways. Whilst Acts have been passed at the state and territory level in the Australian Capital Territory in 2004, Victoria in 2006, and Queensland in 2019, Australia is an outlier by not having its own national laws.
Successive Australian governments and politicians have sought an Act which prevents human rights violations by putting human rights at the heart of government decision making. This vision motivated efforts to try to make an Act a reality, but also drove opponents to thwart it with specious arguments disconnected from what an Act is or would provide.
Why isn’t there a Human Rights Act?
It isn’t for a lack of trying. In 1973 Gough Whitlam sought to reignite Australia’s recognition of human rights with the first version of a human rights bill. Further attempts occurred in 1983 and 1985 during the Hawke Government, and the Rudd Government took steps towards reform via the National Human Rights Consultation.
These failed attempts have common themes and experiences History shows there has been overwhelming public and expert support for an Australian human rights act. Three comprehensive nation-wide inquiries – the 2008 National Human Rights Consultation, the 2023 Human Rights Commission Free & Equal project and the 2024 Inquiry into Australia’s Human Rights Framework – give the current Federal Parliament a breadth of robust evidence. Over 80 percent of submissions received to both the 2008 and 2024 inquiries expressed support for it, indicating the community supports the idea, and this support has been constant over time. Each inquiry also recommended an Australian human rights act. The primary factor preventing reform isn’t a lack of public support, but a lack of political will.
At each juncture in the debate, opposition to potential human rights legislation has followed a similar pattern – centring on political ideology, party affiliation, and repeated arguments to scrutinise, block or create fear about the legislation. These include claims Australia does not need a human rights act; our laws and systems provide sufficient protection for individual rights; diminish the structures of Government; transfer unacceptable amounts of power to the judiciary; and reduce rather than enhance human rights. Another recurring argument is the claim that a human rights act could harm religious freedoms.
Along with these repeated arguments, political opponents have also sought to create fear and division by describing it in highly emotive terms like dangerous, evil and a threat to democracy. This been used in Parliament, media commentary, and inquiry submissions.
The evidence from the three major human rights inquiries shows this language and indeed, most of the key arguments used by opponents are outdated, unsupported and politically driven. The ‘dialogue model’ for a human rights act have been designed specifically to address opponent arguments and illustrate that it’s clear Australia can safeguard human rights, while also preserving existing parliamentary processes.
This reform is urgent and overdue. The current system is disjointed, difficult to navigate and fails to protect human rights through its complexity and opaqueness. Australia talks the talk internationally on protecting human rights but fails to walk the walk with comprehensive protections.
The time for an Australian Human Rights Act is now.
