Resource Pages: Charter of Human Rights: Gilbert + Tobin Centre of Public Law (G+T Centre)

The current debate about whether Australia should have a Charter of Human Rights focuses on whether there should be a statutory human rights Act, not a US-style constitutional Bill of Rights. The difference is that a constitutional Bill of Rights ‘entrenches’ human rights in the Constitution. Rights entrenched in the Constitution cannot be altered by Parliament except through a national referendum. A constitutionally-entrenched Bill of Rights would also give the courts power to invalidate any laws passed by Parliament that are incompatible with the protected rights. This would have an impact on the principle of parliamentary supremacy.

By contrast, a statutory Charter gives greater recognition to parliamentary supremacy. A Charter of Human Rights is an ordinary Act passed by Parliament, which means that Parliament is able to repeal, amend or override it using the ordinary mechanisms of Parliament itself. If another Act of Parliament is found by the courts to be incompatible with the Charter, the courts would have no power to invalidate that other Act. Instead, the courts can only make declarations of incompatibility. This means the final decision on how to deal with human rights will always remain with the elected Parliament. This is the model already in place in the ACT and Victoria.

In A Charter of Rights for Australia (UNSW Press, 2007), Professor George Williams summarises the major arguments for and against a statutory Charter of Human Rights. You can listen to the Meeting of the Minds debate of 30 March 2009, which asked whether Australia should have a Human Rights Act. The debate involved NSW Attorney-General John Hatzistergos, former Commonwealth Solicitor-General David Bennett QC, Professor Andrew Byrnes, Robin Banks (CEO of PIAC) and Edward Santow.

The ACT Bill of Rights Consultative Committee also lists the common arguments for and against a Charter of Human Rights:

Some common arguments in favour of a Charter of Human Rights

It is commonly argued that a statutory Charter of Human Rights would:

give legal rights to Australians who are otherwise powerless;

protect the rights of minorities and other disadvantaged people;

expressly recognise and protect universal rights, including many that are not currently protected by Australian law;

promote tolerance and understanding in the community and contribute to a stronger culture of respect for human rights;

help to educate Australians about human rights and their system of government.

improve government policy-making and administrative decision-making, making it more responsive to shared Australian values;

bring Australia into line with every other liberal democracy;

meet the obligations Australia has voluntarily undertaken to incorporate into domestic law, including instruments such as the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.