What Rights and Freedoms Should be Protected by a Charter of Human Rights

Most advocates for a Charter of Human Rights believe it should include the core international human rights guarantees found in international human rights (IHR) treaties ratified by Australia, in particular the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). 

Many of these obligations are further defined and elaborated in treaties such as:

  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • Convention on the Elimination of All Forms of Discrimination against Women
  • Convention on the Rights of the Child
  • Convention on the Elimination of All Forms of Discrimination against Women
  • Convention on the Rights of Persons with Disabilities

For copies of these treaties, see the Office of the United Nations High Commissioner for Human Rights.

Including such IHR guarantees in a Charter of Human Rights would reflect the role these guarantees already play in the Australian democratic tradition. It would also help ensure:

  • that a Charter of Human Rights would assist Australia to meet its international legal obligations; and
  • that if a Charter of Human Rights were adopted by statute, it would enjoy a strong constitutional foundation under s. 51(xxix) of the Australian Constitution (the power over external affairs).

Typically, Charters of Human Rights contain rights sourced in the ICCPR. Some debate exists, however, as to how far a Charter of Human Rights should go in giving judicially enforceable protection to the rights contained in the ICESCR. For example, it was decided not to include these rights in the ACT Human Rights Act 2004 and the Victorian Charter of Human Rights and Responsibilities 2006, but to provide for later reviews of this decision.

In 2010, the ACT Economic, Social and Cultural Rights Research Project (conducted by researchers at the Australian National University and the University of New South Wales)  concluded that the inclusion of economic, social and cultural rights guarantees in the Human Rights Act is ‘desirable and feasible’, and that the Act should be amended to include most of the rights contained in the ICESCR. The project report was tabled in the ACT Legislative Assembly by the Attorney-General on 9 December 2010. The ACT Government is currently conducting a community consultation about the possible inclusion of economic, social and cultural rights in the ACT Human Rights Act. For further information, see the Justice and Community Safety Directorate.

The Scrutiny of Acts and Regulations Committee (SARC), a Joint Investigatory Committee of the Parliament of Victoria, recently recommended that consideration be given to whether further ICCPR rights should be included in the Victorian Charter. Aside from this, SARC recommended that no further rights (such as rights contained in the ICESCR) be added to the Charter. SARC further recommended against the inclusion of the right to self-determination in the Charter.

SARC also recommended that various other changes be made to the Charter. Most importantly, SARC recommended that changes be made to the role and power of Victorian courts under the Charter (see our Victorian Charter resource page for further information).

These recommendations are contained in SARC’s report into the first four years of the operation of the Charter, which was tabled in the Parliament of Victoria on 14 September 2011. The full report is available here. The Victorian Government is currently preparing a response to this report.