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Waltor, Michael --- "Human rights: What's been left out of Australia's first Bill of Rights?" [2004] AltLawJl 56; (2004) 29(4) Alternative Law Journal 195

What's been left out of Australia's first Bill of Rights?

MICHAEL WALTON[#] reports on the Australian Capital Territory's Human Rights Act 2004.

After a lengthy period of community consultation, committee drafting and parliamentary debate, the Human Rights Act 2004 (ACT) (HRA) came into force on 1 July 2004. It is Australia's first Bill of Rights.

The HRA is based on existing interpretative statutory models in the United Kingdom and New Zealand. When interpreting ACT law, an interpretation consistent with human rights is to be preferred 'as far as possible'.[1]

The HRA does not provide individuals with a right to sue for compensation or relief when their human rights have been breached. Instead the ACT Supreme Court may, when it finds in a proceeding before it that an AGT law is inconsistent with a human right, issue a declaration of incompatibility. Such a declaration does not affect the validity of the offending law, nor does it force the government to change the law. It only requires the Attorney General to table a written response to the declaration in the Legislative Assembly within six months.

The Act enhances the procedure for the scrutiny of Bills by requiring the Attorney General to issue a statement detailing whether a new Bill is consistent with human rights or not A standing committee will also report to the Legislative Assembly on any human rights issues raised by the Bill. A 'reasonable limits' proportionality provision reserves the Legislative Assembly's power to override any of the rights in the HRA when it is 'demonstrably justified in a free and democratic society'.[2]

The HRA also establishes the position of the ACT Human Rights Commissioner, who is charged with reviewing the effect of ACT statute and common law on human rights, with providing buman rights education and with the standing to seek leave to intervene in the courts on matters involving human rights.

The HRA is largely a faithful adoption of the International Covenant on Civil and Political Rights (ICCPR) into the domestic law of the ACT. But while s 7 of the HRA expressly acknowledges that the Act is not an exhaustive list of individual rights, what has been excluded is as interesting as what has been included.

Economic, social and cultural rights

The ACT Bill of Rights Consultative Committee, headed by Professor Hilary Charlesworth, recommended including the rights from the ICCPR's sibling covenant: the International Covenant on Economic, Social and Cultural Rights (ICESCR).[3] These rights include the right to work, to an adequate standard of living, to be free from hunger, to education and to the highest attainable standard of health.

The ACT government of Jon Stanhope chose not to follow this recommendation. Chief Minister Stanhope has promised to examine including these rights at a later stage. At the moment, his major concern is the potential resource implications of recognising these rights.

This concern is reflected in the larger international debate over whether courts are the appropriate place to examine issues so closely linked to social, economic and cultural policy. However, in South Africa, where such rights are constitutionally entrenched, Justice Yacoob has sensitively defined the role of the courts with respect to government policy and human rights:

A court considering reasonableness will not enquire whether other or more desirable or favourable measures could have been adopted, or whether public money could have been better spent ... It is necessary to recognise that a wide range of possible measures could be adopted by the state to meet its obligations. Many of these would meet the test of reasonableness.[4]

The question of whether these rights will be included in the HRA has been left for another day. There will be a review of the first year of operation of the HRA that will oblige the ACT Attorney General to consider whether the ICESCR rights should be included in the Act.[5]

Civil and political rights

At the recommendation of the Consultative Committee, some ICCPR rights were left out of the HRA because they fell within the jurisdiction of the Commonwealth. These include the freedoms to leave and to re-enter one's own country and other rights relating to marriage, immigration, deportation and nationality.

Some ICCPR rights recommended for inclusion by the Consultative Committee failed to make it into the HRA. These include the guarantee to respect the decisions of parents in the religious and moral education of their children according to their own convictions,[6] the restriction on freedom of expression to respect the rights and reputations of others,[7] and the right of all peoples to enjoy and utilise fully and freely their natural wealth and resources.[8]

One glaring omission is the right of all peoples to self­ determination.[9] The Consultative Committee noted that this right and the ICESCR rights 'are of particular significance to Indigenous Australians'.[10] Though the Preamble to the HRA expressly acknowledges 'the first owners of this land',[11] there is no other express mention of indigenous Territorians in the Act.

Other rights

During the consultation process and subsequent public debate, many advocates argued for the recognition of rights which are not expressly acknowledged in the ICCPR and ICESCR.

These include an express recognition of indigenous and gay, lesbian, bisexual and transgender minority rights. Arguably these rights are protected by the right to recognition and equality 'without distinction or discrimination of any kind'[12] and in international human rights jurisprudence.[13]

Rights relating specifically to the environment were not included in the HRA, but the review of the Act's first year of operation will examine whether 'environment­ related human rights would be better protected ... by someone with expertise in environmental protection'.[14]

Other controversial exclusions include: the right to own property and not to be arbitrarily deprived of it; the right to life for the unborn; and victims' rights.

All eyes on the ACT…

The challenges for Australia's first Bill of Rights have only just begun. How the Human Rights Act is received and used over the next 12 months could very well determine such important questions as whether internationally recognised economic, social and cultural rights and environmental rights will be added to it.

And beyond the borders of the ACT, many will be hoping the HRA will prove to be a successful working model for other Australian jurisdictions.[*]


[#] MICHAEL WALTON is studying law at UNSW and is an intern at the Gilbert + Tobin Centre of Public Law, UNSW.

© 2004 Michael Walton email:

[1] Human Rights Act 2004 (ACT) s 30

[2] Human R1ghts Act 2004 (ACT) s 28. The wording is adopted from the Canadian Charter of Rights and Freedoms (1982) s 1, also, the Bill of Rights Act 1990 (NZ) s 5. See also ACT Bill of Rights Consultative Committee, n 3, [4 40]-[4 52]

[3] ACT Bill of Rights Consultative Committee, 'Towards an ACT Human Rights Act (May 2003) < html/> at 2 April 2004.

[4] South Africa v Grootboom [2001]1 SA 46, [41].

[5] Human Rights Act 2004 (AC1) s 42

[6] ICCPR Article 18(4)

[7] ICCPR Article 19(3).

[8] ICCPR Art 47 & ICESCR 1(2)

[9] ICCPR Art 1(1) & ICESCR Art 1(1)

[10] ACT Bill of Rights Consultative Committee, n 3, [5 62]

[11] Human Rights Act 2004 (ACT) Preamble [7].

[12] Human Rights Act 2004 (ACT) s 8

[13] Human Rights Act 2004 (ACT) s 31 (international human rights jurisprudence may be considered when interpreting a human right)

[14] Human Rights Act 2004 (ACT) s 43(2)(b)

[*] For more information you can visit the Bills of Rights resource page on the website of the Gilbert + Tobin Centre of Public Law <>.

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