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Coyne, Benedict --- "The time is ripe for a bill of rights" [2015] PrecedentAULA 33; (2015) 128 Precedent 8


By Benedict Coyne

‘One of the greatest challenges for the effective implementation of human rights in Australia has been our ‘exceptionalist’ approach. We have few constitutional protections for freedoms and rights, no Charter of rights and little implementing legislation other than in respect of the Conventions on race, sex and disability. Indeed, we have recently seen a shrinking of the legislative commitment to human rights...’

Professor Gillian Triggs, President, Australian Human Rights Commission (AHRC)

19 February 2015[1]


Despite the rhetoric of successive governments claiming a robust commitment to international human rights leadership, Australia remains exceptionally slow to implement international human rights law (IHRL). We are the only liberal democracy and common law legal system without a constitutional bill of rights (BoR) or legislative human rights act (HRA).[2] The upshot is that Australians lack basic legal rights that 18th century Americans took for granted.

Since Federation, the Australian government has justified the absence of a BoR or HRA on the basis that the existence of a ‘representative and responsible’ government would suffice to adequately protect the rights of people living in Australia. But if this were so, Australia would not have been subject to escalating international condemnation for ongoing human rights abuses from UN member states, agencies, treaty bodies and special rapporteurs; and from international NGOs, the AHRC and the government’s own Parliamentary Joint Committee on Human Rights (PJCHR). While a BoR or HRA alone may not ensure the perfect protection of basic universal rights, such legal frameworks undoubtedly go a long way to raising the bar for the standards to be expected in a civilised society.

Australia signed the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) over four decades ago, and has since ratified all seven core IHRL treaties.[3] Since our first ICCPR periodic report in 1983, Australia has periodically reported to each of the corresponding UN treaty bodies[4] which, along with UN special rapporteurs, have consistently expressed concern regarding Australia’s ongoing IHRL breaches, and frequently recommended that Australia implement a BoR or HRA to resolve its non-compliance with human rights norms.[5]

On 27 January 2011, Australia attended its first Universal Periodic Review (UPR) before the UN Human Rights Council. The UPR is an innovative mechanism inspired by former UN Secretary-General Kofi Annan’s 2005 vision, In Larger Freedom, to overhaul the UN human rights system and ‘attempt to build a [UN] that can fulfill the promise of the Charter’.[6] Annan declared:

‘For much of the past 60 years, our focus has been on articulating, codifying and enshrining rights... But the era of declaration is now giving way, as it should, to an era of implementation.’[7]

During Australia’s first UPR, 53 peer state delegations interrogated Australia’s human rights record. Many openly criticised ongoing IHRL violations by the Australian government that have remained unresolved for decades: of the rights of Indigenous Australians, women, children, refugees, asylum seekers, migrants, the homeless, the mentally ill, the aged, the disabled and counter-terrorism laws that encroach on fundamental freedoms generally.[8]

The 53 states made 145 recommendations to Australia to improve its contractual IHRL adherence.[9] Sweden, France, Jordan, Argentina, Timor-Leste, Canada, Ukraine, the Russian Federation and Norway made specific recommendations that Australia properly implement its outstanding IHRL obligations by legislating a federal HRA.[10] However, Australia rejected this, claiming that ‘existing mechanisms, together with new requirements’ under the National Human Rights Framework (the Framework) were adequate.[11] The Framework was introduced in 2010 after the National Human Rights Consultation (NHRC) recommended a federal HRA to the Rudd government, without success. Over four years later, the evidence is unequivocal: the Framework has proved a poor and ineffective substitute for a HRA.


The human rights history of Australia is unfortunately not something well taught in schools: even basic legal education of the general population is far from adequate. A recent international survey for this year’s 800th anniversary of the Magna Carta (often acclaimed as the first BoR) revealed the disturbing fact that over a third of Australians have not heard of the Constitution.[12] This seems astonishing for a wealthy, developed and relatively well-educated nation.

The Australian debate regarding a BoR dates back to the constitutional conventions of the 1890s,[13] when our Constitution’s framers cut and pasted numerous aspects of the US Constitution but rejected a BoR.[14] It was considered that rights protections like due process at law may interfere with laws made ‘to the detriment of racial minorities’, including immigration laws and those prohibiting Chinese people from working the goldfields.[15] Yet there was minority BoR support among the framers, including one of the first justices of the High Court, Richard O’Connor, who argued quite prophetically:

‘We are making a Constitution which is to endure, practically speaking, for all time. We do not know when some wave of popular feeling may lead a majority in the parliament of a state to commit an injustice by passing a law that would deprive citizens of life, liberty, or property without due process of law.’[16]

However, the majority of the framers believed that a system of ‘representative and responsible government’ would suffice in protecting basic rights,[17] the same myth that persists today. As IHRL expert, Professor Ben Saul, put it: ‘A bill of rights was rejected during the drafting of the Constitution because it was said that elected parliaments would never violate rights as long as you were white.’[18]

Instead of promoting equality and outlawing discrimination, our Constitution expressly empowers the federal government to make racially discriminatory laws,[19] and permits states to disallow voting rights on the basis of people’s race.[20] These sections have not been removed. By contrast, a constitutional protection against racial discrimination is ‘commonplace in other nations’ and:

‘Australia is exceptional not only in lacking such protection, but in having two provisions in its Constitution that not only run counter to the objects of the Racial Discrimination Act (RDA), but to the whole idea of racial non-discrimination.’[21]

Given the advent of the modern IHRL era, arising from the horrors of WWII and the Holocaust, it is remarkable that a nation such as Australia can still harbour such offensive provisions at its legal core. Williams and Reynolds urge that:

‘Forty years after the enactment of the RDA, it is appropriate that Australia finally remove clauses from its Constitution that enable racial discrimination while also entrenching the principle that no law or policy, whether at the federal, state or territory level, may discriminate against a person on the basis of their race.’[22]

Encouragingly, a recent study found that 73 per cent of Australians support Indigenous constitutional recognition and 82 per cent support the removal of clauses that permit racial discrimination.[23] The Abbott government has proposed a referendum in 2017 to coincide with the 50th anniversary of Indigenous recognition in the census.[24] Indigenous constitutional recognition has bipartisan support, as should the elimination of all forms of discrimination. It will be of significant concern if Australia cannot muster the moral strength and political will to negotiate this hurdle, which remains a remnant of the distant past for the rest of western civilisation. Compared with the constitutions and laws of other liberal democracies (including South Africa, Canada, the United Kingdom, New Zealand and even regional neighbours Nauru and Papua New Guinea),[25] very few universally accepted rights have received constitutional (or even legislative) protection in Australia to date.[26]

Despite some commentators claiming that Australia is ‘one of the most democratic countries on the planet’[27] with ‘the best Constitution in the world’,[28] our Constitution is very difficult to amend. Since Federation, there have been 42 constitutional referenda, with a mere eight successful amendments.[29] Two attempts to introduce fundamental rights into the Constitution since federation, in 1944 and 1988, both failed. However, there have also been numerous attempts to introduce a federal HRA, all unsuccessful.


One of the first actions of the Whitlam government in December 1972 was signing the ICCPR and the ICESCR.[30] The government then set about making legislative arrangements to properly implement the treaties into domestic law as required by Articles 2 of both Covenants and Article 26 of the Vienna Convention on the Law of Treaties, which require contractual IHRL obligations to be implemented by contracting parties in good faith. The government attempted to incorporate the binding contents of the ICCPR into Australian law via the external affairs head of power (s51(xxix) of the Constitution) through the passage of the Human Rights Bill 1973.

During the second reading speech of the Bill on 21 November 1973, then Attorney-General Lionel Murphy noted the minimal protection provided by the Constitution, and expressed the view that ‘a Bill of Rights should be written into the Australian Constitution’. [31] He elaborated:

‘Australia ... is commonly regarded as a country where freedom and individuality are allowed to flourish. The Australian people are commonly believed to be jealous of their freedoms and to be strongly opposed to government interference in their lives. It is said that this commitment to freedom is the best safeguard against encroachments on that freedom. It is said to be more effective in ensuring freedom than a Bill of Rights. Yet one might well ask whether this is really so, whether actual experience bears it out... Despite our supposed commitment to freedom, we cannot be self-satisfied about what is happening in Australia. No matter what the law may provide, those who are poor, who are socially disadvantaged, are denied the basic human rights of a full and satisfying life. There are too many in our community who fall into these categories for us to be complacent about the state of liberty in Australia. The aged, the chronically ill, the migrant groups and the Aborigines do not enjoy the full measure of human rights and dignity.’[32]

That speech could be read today, over 41 years later, with equal impact and relevance. Attorney-General Murphy concluded that ‘[t]he enactment of this legislation will be a significant milestone in the political maturity of Australia. It will help to make Australian society more free and more just.’[33]

Unfortunately, the debate on the Bill was adjourned to provide the states time to comment, but it lapsed with the double-dissolution, and the debate was never revived.[34] Australia was neither made ‘more free’ nor ‘more just’. While there have been minor piecemeal developments in Australia’s IHRL implementation since, our federal position on human rights protection has essentially remained frozen in time for over 40 years.


Australia’s ‘limited patchwork’[35] of human rights protections comprises anti-discrimination legislation at both a state and federal level; [36] charters of human rights in Victoria and the ACT;[37] and anti-discrimination boards or commissions in every state and territory, in addition to the AHRC. Yet the federal government’s power to legislate to implement its IHRL obligations ‘has been only partially and inadequately exploited’.[38] The federal anti-discrimination regime has been widely criticised as ‘ad hoc and of limited reach’[39] and falls significantly short of honouring Australia’s contractual IHRL obligations to the international community in good faith under international law.[40] ‘It is arguably inadequate in dealing with problems of systematic discrimination and in promoting substantive, as opposed to merely formal, equality.’[41]

Compared with a constitutionally entrenched BoR, which would require an arduous referendum to amend, the significant weakness of federal anti-discrimination laws is that they are ‘subject to amendment or repeal by subsequent federal legislation’.[42] The High Court has held that ‘once the federal parliament has bestowed a right or entitlement in a statute, it is equally competent, under the doctrine of parliamentary sovereignty, to take such a right away’.[43]

But universal human rights are so fundamental that they should be insulated from parliamentary incursions and immunised from populist political interference.[44]

This year marks the 40th anniversary of the RDA, Australia’s oldest human rights instrument. Prominent Indigenous leader, Professor Mick Dodson, observes that the RDA has often been ‘overridden whenever it is inconvenient’.[45] It was notoriously suspended during the Howard government’s Northern Territory Emergency Response, demonstrating that its ‘capacity to curb racial discrimination has not been fully realised’,[46] and attracting international condemnation.[47] Nonetheless, the RDA has made significant inroads, albeit shouldering a lonesome, heavy burden. In his recent Whitlam eulogy, Noel Pearson said:

‘If there were no [RDA] that would have been the end of it. Land rights would have been dead, there would never have been a Mabo case in 1992, there would have been no Native Title Act under Prime Minister Keating in 1993.’[4]

One can only imagine what might have been achieved had a constitutional BoR, or even a federal HRA, been introduced in 1973.


There have been numerous unsuccessful attempts to implement a federal legislative HRA in 1973, 1981, 1982, 1983, 1985, 2000, 2001, 2005 and 2008.[48] The most recent effort occurred via the Rudd government’s 2008-2009 NHRC, one of the most comprehensive public consultations in Australian history.[49] Over 35,000 written submissions were received, 87.5 per cent supporting a federal HRA.[50] However, the federal government lost its resolve, and rejected its committee’s HRA recommendation; instead, it implemented the lacklustre Framework, once again citing the representative democracy rhetoric to justify its position. The Framework’s main feature was the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), which introduced ‘statements of [human rights] compatibility’ for all legislative instruments and established the bipartisan PJCHR to scrutinise all new legislative instruments against core IHRL treaties. While the PJCHR has been of use in identifying issues of IHRL concern, its recommendations remain non-binding. And four years of Australia’s PJCHR and the tabling of some 39 of its Scrutiny Reports in Parliament has not stopped a torrent of legislation breaching human rights.

On 23 December 2014, in its concluding observations on Australia’s fourth and fifth Periodic Reports, the UN Committee Against Torture recommended that Australia ‘redouble’ and ‘increase its efforts’ to legislate to prevent a burgeoning list of Convention violations, including the disproportionate incarceration of Indigenous people; violence against women; counter-terrorism measures; and the mandatory, indefinite, offshore detention of asylum seekers.[51] The Committee also expressed concern that the PJCHR’s ‘recommendations are not always taken into account...’ and encouraged Australia to ‘implement the recommendations of the PJCHR as a means of guaranteeing that its legislative framework is fully in line with its human rights obligations’.[52] This has yet to occur.


Australia’s second UPR is scheduled for October/November 2015 in Geneva. While Australia formally accepted over 90 per cent of its first UPR recommendations, only 11 per cent of these have been implemented.[53] The international community’s HRA recommendation was rejected outright, once again via the blind-faith justification that representative democracy will cure-all.[54] Meanwhile, Australia’s declining human rights record has been duly noted by the international community.

On 8 September 2014, Jordanian Prince Zeid, incoming UN High Commissioner for Human Rights, condemned Australia’s offshore mandatory detention as ‘leading to a chain of human rights violations, including arbitrary detention and possible torture following return to home countries’.[55] In March 2015, Fijian Prime Minister Frank Bainimarama offered similar criticism before the UNHRC of Australia’s offshore processing regime:

‘If human rights are universal, no country should be able to contract out an obligation to respect them, especially when dealing with the displaced, the vulnerable and the children... the international community can no longer continue to turn a blind eye to ... one of the greatest human rights challenges in the Pacific.’[56]

In January 2015, the annual global reports of both Amnesty International and Human Rights Watch condemned Australia’s hardline approach to asylum seekers and the disproportionate over-representation of Indigenous youth in the criminal justice system.[57] Both high-profile NGOs also criticised Australia’s ‘regressive’ new counter-terrorism legislation, ‘[which fails] to protect the rights to privacy and freedoms of expression and movement’.[58]

The March 2015 Report of the UN Special Rapporteur on Torture, Juan Mendez, criticised Australia’s treatment of asylum seekers and found that our cruel, arbitrary, indefinite and mandatory detention of asylum seekers including children violates Articles 1, 3 and 16 of the Convention against Torture,[59] indicating the extent to which Australia’s human rights record has slumped.

Renowned human rights barrister, Julian Burnside, has frequently commented on the damaging impact of our treatment of asylum seekers on Australia’s international reputation and national identity.[60] Today, it might seem hard to believe that Australia played significant roles in drafting the 1945 Charter of the United Nations, the 1948 Universal Declaration of Human Rights (UDHR) and the 1951 International Convention on the Status of Refugees.[61] At the Perth Palm Sunday rally on 29 March 2015, celebrated novelist Tim Winton delivered a compelling speech, identifying the Australian population’s general acceptance of the political strategy of dehumanising asylum seekers:

‘Now, of course, we don't see faces. And that's no accident. The government hides them from us. In case we feel the pity that's only natural. Asylum seekers are rendered as objects, creatures, cargo, contraband, and criminals. ... It seems we are set to distinguish ourselves by our callousness, by our unwavering hardness of heart. We will not be lectured to by outsiders. Or, come to think of it, by insiders, either. Not about human rights, not about torture, not about the incarceration of children. We will bully critics and whistleblowers into silence. We will smear them. We will shirtfront them.’[62]


Prime Minister Abbott’s recent response to the UN Special Rapporteur on Torture encapsulates Australia’s exceptionalist approach: ‘I really think Australians are sick of being lectured to by the United Nations.’[63] It echoes his 2009 response to UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, who found that the Howard government’s Northern Territory Emergency Response breached our ICCPR and CERD obligations.[64] Abbott, then opposition Indigenous affairs spokesperson, responded:

‘[T]his is the kind of nonsense we are used to from these armchair critics.... he should get a life and actually visit some of these places rather than just listen to the old victim brigade.’[65]

Anaya’s observations had been formulated on the basis of personal visits to communities and witnessing the evidence first-hand.[66]

In recent years, it has become almost traditional for Australia to adopt a head-in-the-sand attitude when it comes to UN criticism, or worse, shoot the messenger with public scorn and ridicule (exemplified by the government’s recent response to the AHRC’s The Forgotten Children report).[67] This trend of ‘adversarial relationships with UN human rights bodies’ (and domestic ones) adopted by successive conservative Australian governments, is hardly the behaviour expected of ‘a good international citizen’.[68]

Generally, the fallback position of Australian governments in response to external or internal human rights criticism is to recite the usual representative democracy refrain. Deployed since the 1890s, the Australian government’s 2006 Common Core Reporting Document to UN Treaty Bodies articulates the myth succinctly:

‘The high level of acceptance, protection and observance of human rights in Australia is founded on a system of representative and responsible government, certain limited constitutional guarantees, statute law including specialised human rights legislation, the common law and an independent judiciary.’[69]

In 2008, DFAT released a promotional brochure entitled Australia: Seeking Human Rights for All – Celebrating the 60th Anniversary of the UDHR, which stated:

‘Australia’s commitment to human rights is enduring: we were an original signatory to the [UDHR] 60 years ago. We have been a leading proponent of its consistent and comprehensive implementation.’[70]

However, the rhetoric is not matched by the reality, which is currently characterised by abuses of the rights of the vulnerable and marginalised: recent examples include reports of assault and abuse in detention centres on Nauru and Manus Island (paid for and overseen by the Australian government) and the proposed forced closure and systematic dispossession of 150 remote aboriginal communities in WA.

Clearly, Australia’s ‘existing mechanisms’ and ‘new requirements’ (the Framework and PJCHR) have been inadequate; and ‘representative and responsible government’ has largely failed to protect fundamental rights and freedoms in Australia. Against this background, it seems incongruous that the Australian government is currently promoting its candidacy for the UN Human Rights Council.[71] The DFAT website declares:

‘Australia believes that the protection and promotion of human rights is vital to global efforts to achieve lasting peace and security, and freedom and dignity for all. Australia’s commitment to human rights reflects our national values and is an underlying principle of Australia’s engagement with the international community.’[72]

This is a brazen manoeuvre, given the prevailing view that states seeking UNHRC membership should have exemplary humans rights records that are ‘beyond reproach’.[73] Full domestic implementation of the core IHRL treaties should be a basic prerequisite for such candidacy. [74] The aspiration to leadership also requires assumption of responsibility. Failure to properly implement IHRL domestically in Australia undermines our reputation on the global stage and erodes the rights of people within our jurisdiction and in offshore detention.

A federal HRA is the most appropriate corrective to the failure to implement IHRL. Former WA Chief Justice, David Malcolm, has noted:

‘Given that the United Kingdom has recognised that its common and statute law provides insufficient protection for fundamental human rights by pan-European standards, on what basis can Australia justify a lesser legal standard of protection of human rights than all of Europe, Canada, India, New Zealand, Pakistan and South Africa?[75]


IHRL expert, Professor Ben Saul, recently reflected on the NHRC and its aftermath, lamenting that the Rudd government had:

‘[S]quandered its opportunity to adopt a bill of rights despite overwhelming public support for rights protection during [the NHRC]. Instead we have lame statements of compatibility attached to new bills, which whitewash and legitimise rights violations, and another joint parliamentary committee which wrings its hands at violations but is powerless to stop them.’[76]

Australia’s failure to seize this opportunity will open the door to future laws that will further degrade, discriminate, humiliate and injure in our name. Taking appropriate action now would generate hope for a more united, tolerant, dignified and mature Australia. For Australians to lack legally enshrined and enforceable fundamental human rights that Americans have enjoyed for over 200 years is aberrant in the modern age. As Henkin so neatly declares:

‘Ours is the age of rights. Human rights is the idea of our time, the only political-moral idea that has received universal acceptance ... Human rights are enshrined in virtually every one of today’s ... states.’[77]

We can only hope that the promise of the many previous attempts to enact binding human rights legislation will, one day soon, bear fruit. As in the 1890s, 1973 and 2009, the time is (still) ripe and the challenge is ours.

Benedict Coyne is a Queensland Convenor and National Committee Member of Australian Lawyers for Human Rights (ALHR) and Chair of the new national ALHR Human Rights Act Subcommittee. He is currently completing his Master of Studies in International Human Rights Law at the University of Oxford and is a legal practitioner in Queensland. EMAIL:

[1] Gillian Triggs, ‘Opening Address’ (RDA+40 Conference, AHRC, 19 February 2015) 2.

[2] David Kinley and Christine Ernst, ‘Exile on Main Street: Australia’s Legislative Agenda for Human Rights’ (1) European Human Rights Law Review [2012], 58; Robert French AC, Chief Justice of the High Court of Australia, ‘Human Rights Protection in Australia and the United Kingdom: Contrasts and Comparisons’ (Speech to Anglo-Australasian Lawyers Society, London, 5 July 2012).

[3] 1966 International Covenant on Civil and Political Rights; 1966 International Covenant on Economic, Social and Cultural Rights; 1963 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); 1981 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); 1989 Convention on the Rights of the Child (CRC); 2006 Convention on the Rights of Persons with Disabilities (CRPD).

[4] Department of Foreign Affairs and Trade (DFAT) website: ‘Reports to United Nations Bodies’:

[5] See, for example; UN Human Rights Committee Concluding Observations on Australia’s: First Periodic Report (15th Session; 15 September 1983); Third and Fourth Periodic Reports (69th Session; 28 July 2000); Fifth Periodic Report (7 May 2009); Committee on Economic, Social and Cultural Rights Concluding Observations on Australia’s; Third Periodic Report (22nd, 23rd and 24th Sessions; 22 May 2009); Committee on the Rights of the Child Concluding Observations on Australia’s combined Second and Third Periodic Reports (40th Session; 20 October 2005); Committee Against Torture Concluding Observations on Australia’s; Third Periodic Report (40th Session; 15 May 2008); combined Fourth and Fifth Periodic Reports (53rd Session; 3-28 November 2014); Committee on the Elimination of Racial Discrimination Concluding Observations on Australia’s combined Fifteenth to Seventeenth Periodic Reports (77th Session; 27 August 2010); Mission to Australia Reports of the: Special Rapporteur on Health (3 June 2010); Special Rapporteur on the Rights of Indigenous Peoples (1 June 2010); Special Rapporteur on Adequate Housing (August 2006); Special Rapporteur on the Protection of Human Rights while Countering Terrorism (14 December 2006).

[6] UN website, ‘Secretary-General Kofi Annan's Address to the Commission on Human Rights’ (7 April 2005).

[7] Ibid.

[8] UNHRC, ‘Report of the Working Group on the UPR: Australia’ (17th session: 24 March 2011) A/HRC/17/10 at [12].

[9] Ibid.

[10] Ibid [86.17] – [86.20].

[11] Attorney-General’s Department website, ‘Australia’s formal Response to the UPR Recommendations’:

[12] Nick Miller, ‘More than one-third of Australians have not heard of the Constitution, survey finds’ Sydney Morning Herald (21 February 2015).

[13] Frank Brennan, Mary Kostakidis, Tammy Williams and Mick Palmer, National Human Rights Consultation Report (Commonwealth of Australia; September 2009) (NHRC Report) 292-3.

[14] George Williams, ‘The Future of the Australian Bill of Rights Debate’ (Alice Tay Lecture on Law and Human Rights, Freilich Foundation, ANU, 16 September 2010) 1.

[15] David Malcolm, ‘A Human Rights Act for Australia’ (2006) 8 Notre Dame Austl. L. Rev. 20.

[16] Commonwealth of Australia, Official Record of the Debates of the Australasian Federal Convention, 1891-1898, (8 February 1898) 688.

[17] Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon, Bills of Rights in Australia: history, politics and law (UNSW Press, 2009) 24 -5.

[18] Ben Saul, ‘The Ideological War on Human Rights: Why Are Australian Politicians So Hostile towards Basic Freedoms?’ (Speech at NSW Council for Civil Liberties Annual Dinner, 26 September 2014) 3.

[19] Section 51(xxvi):‘the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’. The successful 1967 referendum removed the struck-out words.

[20] Section 25.

[21] George Williams and Daniel Reynolds, ‘The Racial Discrimination Act and the Australian Constitution’ (RDA+40 Conference, AHRC, Sydney, 19 February 2015) 1.

[22] Ibid.

[23] Shalailah Medhora, ‘73% of Australians want indigenous recognition in constitution – study’ (The Guardian Online; 27 March 2015).

[24] Ibid.

[25] The Constitution of the Republic of South Africa 1996; The Constitution Act 1982; Schedule B to the Canada Act 1982; Part I Canadian Charter Of Rights And Freedoms 1982; Human Rights Act 1998 (UK); New Zealand Bill of Rights Act 1990; The Constitution of the Republic of Nauru 1968; Constitution Of The Independent State Of Papua New Guinea 1975.

[26] George Williams, ‘The Federal Parliament and the Protection of Human Rights’ (Research Paper 20, Parliament of Australia, 1998-99).

[27] James Allan, ‘Paying for the Comfort of Dogma’ (2003) 25(1) Sydney Law Review, 64.

[28] The Hon. Michael Kirby and James Allan, ‘Strict and complete legalism and other heresies’ (Public lecture; 9 May 2014).

[29] Williams, above note 26.

[30] Commonwealth Parliamentary Debates, Vol. 58, Senate, 21 November 1973, Attorney-General Senator Lionel Murphy, 1971.

[31] Ibid 1972 – 1974.

[32] Ibid.

[33] Ibid.

[34] Byrnes et al, above note 17, 29.

[35] Joanne Weinman and Michael Dodson, ‘National Human Rights Consultation Submission’ (Australian National University; 15 June 2009) 3.

[36] Federal legislative protection includes the Racial Discrimination Act 1975 (RDA); the Sex Discrimination Act 1984; the Australian Human Rights Commission Act 1986; the Privacy Act 1988; the Disability Discrimination Act 1992; and the Age Discrimination Act 2004.

[37] Charter of Rights and Responsibilities 2006 (Vic) and Human Rights Act 2004 (ACT).

[38] Hilary Charlesworth, ‘The Australian Reluctance About Rights’ (1993) 31(1) Osgoode Hall Law Journal 196.

[39] Williams, above note 26.

[40] Ibid.

[41] Ibid; Williams and Reynolds, above note 21, 11.

[42] Williams, above note 26.

[43] Ibid; Kartinyeri v Commonwealth [1998] HCA 22; (1998) 152 ALR 540.

[44] See Art 5(2) ICCPR; Preamble, UDHR.

[45] Michael Dodson, ‘The Continuing Relevance of the Constitution for Indigenous Peoples’ (ABC TV, July 2008).

[46] Beth Gaze, ‘Has the Racial Discrimination Act Contributed to Eliminating Racial Discrimination? Analysing the Litigation Track Record 2000-4’ [2005] AUJlHRights 6; (2005) 11(1) Australian Journal of Human Rights 6, 30.

[47] James Anaya, ‘UN human rights envoy James Anaya: NT intervention is racist’ (The Australian Online; 28 August 2009).

[48] NHRC Report, above note 13, 229-37.

[49] Ibid 5.

[50] Ibid 4-5.

[51] CAT Committee, above note 5.

[52] Ibid.

[53] Australian Council of Human Rights Authorities, ‘Australia’s Universal Periodic Review Progress Report’ (AHRC; December 2014) at [9].

[54] Attorney-General’s Department webpage, above note 11.

[55] Opening Statement UN Human Rights Council (27th Session; 8 September 2014)

[56] ABC News Online, ‘Fiji PM Frank Bainimarama criticises Australia's regime for resettling asylum seekers in Pacific’ (3 March 2015).

[57] Amnesty International, Report 2014/2015 – State of the World’s Human Rights (February 2015), 23, 27, 63; Human Rights Watch, World Report 2015 – Events of 2014 (HRW; January 2015) 75.

[58] Ibid.

[59] UNHRC, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or punishment, Juan Méndez’ (28th session; 6 March 2015).

[60] Julian Burnside QC, ‘Who are we? Refugees, politics and our national character?’ (Speech at the Australian Lawyers for Human Rights Annual Dinner, Sydney, 27 March 2015).

[61] DFAT ‘United Nations’ webpage; Mary Ann Glendon, A World Made New; Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House, 2001) 163-4,170; Paul Weis, ‘The Refugee Convention, 1951, The Travaux Preparatoires Analysed With A Commentary’ (1995) 12;

[62] Tim Winton, ‘Palm Sunday plea: Start the soul-searching Australia’ (Sydney Morning Herald; 29 March 2015).

[63] Lisa Cox, ‘Tony Abbott: Australians 'sick of being lectured to' by United Nations, after report finds anti-torture breach’ (Sydney Morning Herald; 10 March 2015).

[64] Ibid; James Anaya, above note 47.

[65] ABC Lateline, ‘UN labels Indigenous intervention racist’ (27 August 2009).

[66] UNHRC, ‘Report of the Special Rapporteur on the Rights of Indigenous People, James Anaya: The Situation of Indigenous Peoples in Australia’ (15th session: 4 March 2010).

[67] AHRC, The Forgotten Children; National Inquiry into Children in Immigration Detention (AHRC; 2014).

[68] Fiona McGaughey and Mary Anne Kenny, ‘Lashing out at the UN is not the act of a good international citizen’, The Conversation (10 March 2015).

[69] DFAT, ‘Australia’s Reporting under the ICESCR and ICCPR’ webpage via

[70] DFAT, ‘Human Rights’ webpage via

[71] DFAT, ‘Human Rights – Australia’s Multilateral Initiatives’ webpage via

[72] DFAT, ‘Australia; Seeking Human Rights for All – Celebrating the 60th Anniversary of the UDHR’ (2008) via

[73] Rhona Smith, ‘To See Themselves as Others See Them: The Five Permanent Members of the Security Council and the Human Rights Council’s Universal Periodic Review’ (2013) 35(1) Human Rights Quarterly 26; Gareth Sweeney and Yuri Saito, ‘An NGO Assessment of the New Mechanisms of the UN Human Rights Council’ (2009) 9 Human Rights Law Review 203, 206.

[74] Smith, above note 74, 11-13.

[75] David Malcolm, above note 15, 28.

[76] Saul, above note 18.

[77] Louis Henkin, The Age of Rights (Columbia University Press; 1990), xvii.

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