Before Federation
Timeline of federal attempts to introduce human rights law: 1944-2008
Charters of Rights in the States and Territories
Non-Governmental Organisations for an Australian Charter of Human Rights

Australia’s history reflects a continuing concern with the ability of the common law and democratic process alone to safeguard our rights and freedoms. As far back as the 1890s, key public figures have been calling for some kind of additional legal protection for our fundamental rights.

In the lead up to Federation, Australia’s senior political and legal figures took part in a series of Constitutional Conventions to draft what would become the Australian Constitution. Tasmania’s Attorney-General, Andrew Inglis Clark, urged the inclusion of some fundamental individual rights in our Constitution, arguing that ‘the unrestricted use of the majority of the hour is at all times a contradiction of the rational rights of the individual’. In other words, even a democratically-elected government should not have a mandate to intrude on the most basic rights of individuals.

To this end, Clark proposed a due process clause based on the 14th amendment to the United States Constitution. The right to due process is essentially the right to a fair trial. It is the idea that the government should not be able to fine or imprison you without due process of law before the courts.

The proposal did not succeed. This is because the tradition of responsible government we inherited from England was believed to provide enough of a safeguard for the protection of individual rights. Since Federation, the horrors of major world wars, as well as genocidal conflict, have highlighted the need to uphold basic human rights against ‘the majority of the hour’. The vast majority of nations, including Australia, have signed up to international human rights treaties. Now, Australia is the only liberal democracy that has not passed some form of Charter of Human Rights in domestic law. Other Commonwealth countries, such as New Zealand, Canada and Britain, have decided that our shared tradition of responsible government is not enough. You can read about their Charters of Human Rights here.

Since the Second World War, there have been numerous national inquiries, proposed bills and referenda attempts for an Australian Charter of Human Rights.

In 1944, a referendum was held that, among many things, proposed the insertion of constitutional guarantees of freedom of speech and religion, as well as safeguards against the abuse of delegated legislative power. This referendum did not succeed, and so the proposal to entrench these basic freedoms in our Constitution failed.

In 1973, Commonwealth Attorney-General Lionel Murphy introduced the Human Rights Bill 1973 to implement the International Covenant on Civil and Political Rights that Australia had just signed. The Bill lapsed when the Governor-General dismissed the Whitlam Government in November 1975.

In 1985, Commonwealth Attorney-General Lionel Bowen attempted to introduce an Australian Human Rights Bill (along with an explanatory memorandum), again based on the International Covenant on Civil and Political Rights. The Bill was later withdrawn, but in the same year, Prime Minister Bob Hawke announced the establishment of a Constitutional Commission to review the Constitution. The Commission was assisted by an Advisory Committee on Individual and Democratic Rights under the Constitution. In 1987, a Report from that Advisory Committee recommended the insertion of several new rights in the Constitution, including rights to a speedy trial and a right to vote. The Constitutional Commission produced its final report in 1988.

The 1988 Constitution Alteration (Rights and Freedoms) Bill (explanatory memorandum available) was passed by Parliament but rejected at a referendum on 3 September 1988. The 1988 referendum had proposed altering the Constitution to:

change the maximum term for the House of Representatives and the Senate to four years;

recognise local government;

guarantee ‘one vote one value’;

extend the right to trial by jury;

extend freedom of religion; and

ensure fair terms of compensation for persons whose property is acquired by any government, State as well as Commonwealth.

The Constitutional Commission’s 1988 final report also recommended the insertion of a new chapter into the Constitution based on the Canadian Charter of Rights and Freedoms. This recommendation was not implemented.

In 2000, there was a renewal of attempts to improve rights protection in Australia. The Australian Democrats released the draft Australian Bill of Rights Bill 2000 and, in the following year, introduced into Parliament the Parliamentary Charter of Rights and Freedoms Bill 2001. In the same year, the Australian Bill of Rights Bill 2001 was introduced by Dr Andrew Theophanous MP, then an Independent but formerly of the Australian Labor Party. These Bills sought to incorporate international instruments, including the International Covenant on Civil and Political Rights, into Australian law.

The debate has been renewed since the ALP’s victory in the 2007 federal election. In 2007, the ALP committed to conducting a public consultation about a federal Charter of Human Rights. Australia’s Attorney-General, Rob McClelland, reaffirmed this in a speech on 3 October 2008. Idea 9.3 of the Final Report of the 2020 Summit was that all Australians should be engaged in a national consultation about human rights protection, followed by the enactment of a Charter of Human Rights. Numerous NGOs also support a federal Charter, and you will find links to their websites on the Useful Links page.

Australian Capital Territory
Victoria
New South Wales
Queensland
South Australia
Tasmania
Western Australia
Northern Territory

Australia’s first Charter of Human Rights was passed by the ACT government on 2 March 2004. The passage of the law followed a detailed community consultation in 2003, which you can read about here.

The Final Report of that consultation process shows the community gained more knowledge about politics and Charters of Human Rights, and a better understanding of Charters in other jurisdictions, such as the United Kingdom. This consultation and education process resulted in an increase in the number of ACT citizens in favour of an ACT Charter of Rights.

For information about the ACT Charter, see our page dedicated to the ACT Charter of Human Rights, or see the ACT Human Rights Act Research Project, which was established to monitor the ACT Human Rights Act 2004 over its first five years.

Victoria passed Australia’s first State Charter of Human Rights on 25 July 2006. This followed an extensive public consultation process, which took place over six months in 2005. The Victorian Human Rights Consultation Committee held 55 community meetings all over the state, and 75 more meetings with government and peak organisations. It received a total of 2524 written submissions from individuals and community groups, the vast majority of which (84%) were in favour of reforming the law to protect human rights.

The grassroots nature of the Charter of Human Rights movement in Victoria is indicated by the “Inaugural Citizens’ Bill of Rights”, which was passed on 9 March 2004 by Hume City Council, a local government in Victoria. It includes rights that mainly relate to participating in the democratic process, such as the rights to vote and to political representation. Additional information about Hume City’s Bill of Rights can be found in the Hume Social Justice Charter 2004.

For more information about the Victorian Charter generally, please see our page on the Victorian Charter of Rights and Responsibilities, or visit the Victorian Equal Opportunity and Human Rights Commission.

In 2001, the NSW Parliament conducted a Charter of Rights Inquiry. This inquiry resulted in a report recommending against a statutory Charter of Rights for NSW. Former Premier Bob Carr is strongly opposed to any kind of Charter, and you will find his submission to the Inquiry extracted in this article.
In 2005, the NSW Law Society published a discussion paper on the issue, which noted the progress made by the ACT and Victoria. In 2006, the NSW Parliamentary Research Service published a report analysing the issues in ‘A NSW Charter of Rights? The continuing debate’. A summary of this research paper is also available.

In March 2008, the NSW Bar Association issued a resolution in support of a Charter of Human Rights for NSW, which you can read about here. The Lord Mayor of Sydney, the Hon. Clover Moore, has expressed her intention to establish a public consultation at the local government level for a Charter of Human Rights for the City of Sydney. She has also called on the NSW Government to initiate a public consultation for a NSW State Charter.

In 1997, the Queensland Legislative Assembly’s Legal, Constitutional and Administrative Review Committee examined the issue of ‘The Preservation and Enhancement of Individuals’ Rights and Freedoms in Qld: Should Qld Adopt a Bill of Rights?’. The Committee reported in November 1998 and, like NSW, recommended against a Bill of Rights for Queensland. The issues paper of the report is also available.

After the example set by the ACT and Victoria, there has been recent media agitation in Queensland for a Charter, including calls by the Australian Council for Civil Liberties and Queensland Law Society president Rob Davis for a Queensland Charter of Human Rights. A community organisation, Just Rights Queensland, is also campaigning for a State (and Federal) Charter. In mid-2008, a Queensland Charter of Human Rights Group was established. For further information visit its website (available through www.qccl.org.au or qldchartergroup@gmail.com).

There has been only limited progress in South Australia towards adopting a Charter of Human Rights. In 2004, Democrat MP Sandra Kanck introduced a Human Rights Act as a Private Member’s Bill in the Legislative Assembly, but it was unsuccessful.

The South Australian community organisation the Human Rights Coalition is campaigning for better legislative protection for human rights in Australia. In 2006, the group produced a draft Human Rights Bill for South Australia. The Human Rights Coalition also supports the enactment of a national Charter of Human Rights.

From September to December 2006, the Tasmanian Law Reform Institute conducted a community consultation into whether human rights could be better protected or enhanced in Tasmania and, if so, how this should be done.

The Tasmanian Law Reform Institute concluded that Tasmania should enact a Charter of Human Rights. You can read the Tasmanian consultation report of October 2007 here. Shortly after the report was published, Stateline conducted an interview about the Charter of Human Rights recommendations, the transcript of which is here. In a press release on 6 October 2008, Tasmanian Attorney-General Lara Giddings welcomed an active community debate about the need for a Charter of Human Rights in Tasmania. She also noted that Tasmania is ideally positioned to contribute to the Australian government’s promised national consultation on human rights.

In early 2007, Western Australia’s former Attorney-General announced the establishment of a consultation committee to examine whether Western Australia should have a Charter of Human Rights, how it would operate, and what rights it should cover. The consultation committee concluded that a Charter was a desirable step forward for human rights protection in Western Australia. The final report was published in November 2007, and it is available here. The WA Government has not yet responded formally to this recommendation.

In 1996, the Northern Territory’s Sessional Committee on Constitutional Development discussed whether to include a Charter of Rights in its draft constitution, which you can read about in its Final Report. At this time, however, a final agreement to include a Bill of Rights in the draft constitution was not reached.

More recently, in May 2007, the Northern Territory Statehood Steering Committee released a Discussion Paper, which also considers the inclusion of a bill of rights in a new constitution. A Charter has also been advocated in the Northern Territory media.

Also in May 2007, Charles Darwin University held its Symposia on the question of ‘Securing Territorians’ rights: Statehood and a Bill of Rights?’ Click here to read papers, speeches and panel discussions for and against a Charter of Human Rights for the Northern Territory.

There are many community-based non-governmental organisations that support a Charter of Human Rights for Australia. Click here for a list of their websites. In particular, visit the Human Rights Act for Australia Campaign, which provides ongoing news and media updates.

The Australian Human Rights Group (AHRG) is the largest and broadest-based of these community organisations. AHRG has thirty-five organisations listed as public members, representing groups as diverse as GetUp!, Amnesty International, the Australian Lawyers Alliance and the Uniting Church in Australia.

In August 2008, AHRG sent Prime Minister Kevin Rudd an open letter, calling on the Government to fulfil its election promise to hold a public consultation regarding the protection and promotion of human rights. This letter was endorsed by more than fifty organisations from different sectors and across the country.

The AHRG’s core aims and beliefs are:

Australia needs better legislative protection of human rights.

The AHRG aims to enable the community to share their views on how best to protect human rights in Australian law.

The Australian Parliament should pass a comprehensive Human Rights Act.

For more information about the AHRG or to get involved, contact the Campaign Co-ordinator, Phoebe Knowles.