Charters of Human Rights in Australia: An Overview

State and Territory Charters of Human Rights

Following community consultations, legislative Charters of Human Rights (sometimes referred to as ‘Human Rights Acts’) have been adopted in Victoria and the ACT. For further information on developments in Victoria and the ACT, see our resources pages on the ACT Human Rights Act and the Victorian Charter of Human Rights and Responsibilities.

Other States and Territories have not adopted a Charter of Human Rights. However, in 2006 and 2007, the governments of Tasmania and Western Australia commissioned public consultation processes into human rights protections in those States. Both of these inquiries recommended that a Charter of Human Rights be enacted at a State level. (See the reports of the Tasmanian Law Reform Institute and the Consultation Committee for a Proposed WA Human Rights Act). The Tasmanian Department of Justice is currently undertaking a project involving further community consultations to examine a model for a Charter of Human Rights for Tasmania. However, the recommendation of the Western Australian committee has not been followed.

A Federal Charter of Human Rights?

At a national level, the ALP committed during the 2007 election campaign to conduct a public consultation on ‘how best to recognise and protect the human rights and freedoms enjoyed by all Australians’.

On 10 December 2008, Attorney-General the Hon Robert McClelland MP launched the National Human Rights Consultation. The Consultation was conducted by an independent Consultation Committee, which was chaired by Father Frank Brennan. The Committee made 31 recommendations, including that Australia should adopt a federal Human Rights Act.

On 21 April 2010, the Attorney-General responded to the Committee’s final report by launching 'Australia's Human Rights Framework' implemented by the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

The Act does not create a Charter of Rights. Instead, it establishes

·         a new Parliamentary Joint Committee on Human Rights comprised of five members of the Senate and five members of the House of Representatives

·         a new requirement that a Bill introduced into Parliament must be accompanied by a ‘statement of compatibility’, which is to include an assessment of whether the Bill is compatible with human rights. (Statements of compatibility must also be prepared in respect of disallowable legislative instruments.)

The Parliamentary Joint Committee is required to:

·         examine Bills, Acts and legislative instruments for compatibility with human rights

·         inquire into any matter relating to human rights which is referred to it by the Attorney-General, and

·         report to both Houses of Parliament on these issues and matters.

A failure to comply with the new ‘statement of compatibility’ requirements in relation to a Bill that becomes an Act will not affect the validity, operation or enforcement of that Act or any other provision of a Commonwealth law. Furthermore, a statement of compatibility will not bind any court or tribunal.

The Legislation commenced on 4 January 2012 and the Parliamentary Joint Committee on Human Rights was established on 13 March 2012. The current members are Mr Jenkins (Chair), Mr Wyatt (Deputy Chair), Senators Edwards, Humphries, Stephens, Thistlethwaite and Wright and Ms Parke, Mr K.J. Thomson and Mr Tehan.

Since its inception, the Committee has been asked to test two Bills. The Australian Council of Social Service (ACOSS) has asked the Committee to examine the Social Security Legislation Amendment (Fair Incentives to Work) Bill 2012. In response, a hearing was held on 21 June 2012, at which ACOSS and the Department of Education, Employment and Workplace Relations were invited to provide evidence to their concerns. The Committee is currently scheduled to meet to consider the evidence raised in the hearing and determine the next steps to be taken.

The National Congress of Australia's First People has also asked the Committee to examine the Stronger Futures in the Northern Territory Bills. The Committee has invited the Minister for Families, Housing, Community Services and Indigenous Affairs to provide a statement assessing the compatibility of the bills with human rights before determining how to proceed with the request.