PARLIAMENTARY CHARTER OF RIGHTS AND FREEDOMS BILL 2001 [2005]

1998-1999-2000-2001

The Parliament of the

Commonwealth of Australia

THE SENATE

Parliamentary Charter of Rights and Freedoms Bill 2001

No. , 2001

(Restored by Senator Stott Despoja 9 November 2005)

A Bill for an Act relating to the human rights and fundamental freedoms of all Australians and all people in Australia, and for related purposes

Contents

A Bill for an Act relating to the human rights and fundamental freedoms of all Australians and all people in Australia, and for related purposes

The Parliament of Australia enacts:

Part 1--Preliminary

1 Short title

This Act may be cited as the Parliamentary Charter of Rights and Freedoms Act 2001.

2 Commencement

(1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.

(2) Section 8 commences on the third anniversary of the day on which this Act receives the Royal Assent.

3 Objects

The objects of this Act are:

(a) to promote universal respect for, and observance of, human rights and fundamental freedoms for all persons without discrimination; and

(b) to that end, to affirm Australia's commitment to the International Covenant on Civil and Political Rights by enacting a Parliamentary Charter of Rights and Freedoms; and

(c) to ensure that any person whose rights or freedoms as set out in the Parliamentary Charter of Rights and Freedoms are infringed by or under any law in relation to which that Charter operates has an effective remedy; and

(d) to promote, enhance and secure, as paramount objectives, the freedom and dignity of the human person, equality of opportunity for all persons and full and free participation by all Australians in public affairs and public debate.

4 Interpretation

(1) In this Act, unless the contrary intention appears:

act means an act done:

(a) by or on behalf of the Commonwealth or of a State or a Territory; or

(b) by or on behalf of an authority of the Commonwealth or of a State or a Territory;

being an act done:

(d) in any other case--within Australia;

Australia includes the external Territories.

authority means:

(a) in relation to the Commonwealth:

(i) a body (whether incorporated or unincorporated) established for a purpose of the Commonwealth by or under a Commonwealth law; or

(ii) an incorporated company over which the Commonwealth is in a position to exercise control; or

(iii) a person holding or performing the duties of an office or appointment established or made under a Commonwealth law or by the Governor-General or a Minister of State of the Commonwealth; or

(iv) a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the Commonwealth for the purposes of this Act;

(b) in relation to a State:

(i) a body (whether incorporated or unincorporated) established for a purpose of the State by or under a law of the State; or

(ii) an incorporated company over which the State is in a position to exercise control; or

(iii) a person holding or performing the duties of an office or appointment established or made under a law, or by the Governor or a Minister, of the State; or

(iv) a local government body in the State; or

(v) a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the State for the purposes of this Act; and

(i) a body (whether incorporated or unincorporated) established for a purpose of the Territory by or under a Territory law; or

(ii) an incorporated company over which the Territory is in a position to exercise control; or

(iii) a person holding or performing the duties of an office or appointment established or made under a law, or by an administrator or a Minister, of the Territory; or

(iv) a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the Territory for the purposes of this Act.

Charter or Charter of Rights and Freedoms means the Parliamentary Charter of Rights and Freedoms set out in
Schedule 1.

Commission means the Human Rights and Equal Opportunity Commission established by the Human Rights and Equal Opportunity Commission Act 1986.

Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 1 of the Human Rights and Equal Opportunity Commission Act 1986, as that International Covenant applies in relation to Australia.

law means a law of the Commonwealth, a law of a State or a law of a Territory.

practice means a practice engaged in:

(a) by or on behalf of the Commonwealth or of a State or a Territory; or

(b) by or on behalf of an authority of the Commonwealth or of a State or a Territory;

being a practice engaged:

(d) in any other case--within Australia.

proposed law means:

(a) a proposed law introduced into the Parliament of the Commonwealth or of a State or a Territory; or

(b) a proposed law prepared on behalf of:

(i) the Government of the Commonwealth or of a State or a Territory; or

(ii) a Minister of State of the Commonwealth or of a State or a Territory; or

(iii) a body established by law that has the function of recommending proposed laws of the Commonwealth or of a State or a Territory.

responsible Minister means the Commonwealth, State or Territory Minister responsible for the administration of the matter to which the law, proposed law, act or practice relates.

(2) A reference in this Act to a law or a proposed law includes a reference to any instrument or proposed instrument (including a rule, regulation, by-law, award, determination, order or direction) made, granted or issued under a power conferred by such a law or proposed law.

(3) In this Act:

(a) a reference to, or to the doing of, an act includes a reference to a refusal or failure to do an act; and

(b) a reference, in relation to the doing of an act or the engaging in of a practice, to the person who did the act or engaged in the practice shall, in the case of an act done or practice engaged in by an unincorporated body of persons, be read as a reference to that body.

5 Interpretation of Charter

For the purposes of the interpretation of the Charter of Rights and Freedoms, each Article of the Charter shall be taken to be a section of this Act.

6 Extent to which Act binds the Crown

(1) This Act binds the Crown in right of the Commonwealth, each of the States and the Territories.

(2) Nothing in this Act renders the Crown in right of the Commonwealth or of a State or a Territory liable to be prosecuted for an offence.

7 Extension to external Territories

This Act extends to every external Territory.

8 Application of Charter

(1) Subject to subsection (2), any provision of a law, whether passed or made before, on or after the commencing day of this Act, that is inconsistent with a provision of this Act does not, to the extent of the inconsistency, have any force or effect.

(2) Subsection (1) does not apply in relation to a provision of a Commonwealth, State or Territory law if an Act expressly declares that provision shall operate notwithstanding this Act.

(3) A declaration made under subsection (2) ceases to have effect two years after it comes into force or on such earlier date as may be specified in the declaration.

(4) The Parliament of the Commonwealth or of a State or a Territory may re-enact a declaration made under subsection (2).

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

(6) The rights and freedoms set out in this Act are in addition to, and not in derogation of, any other rights and freedoms of the individual under the laws of the Commonwealth or of a State or a Territory and this Act is not intended to exclude or limit the operation of any of those laws in so far as they can operate concurrently with the provisions of this Act.

(7) Nothing in this Act may be interpreted as implying any right to engage in any activity or perform any act that is restrictive of any of the rights and freedoms recognised in this Act or limits any of those rights and freedoms to a greater extent than is provided in this Act.

9 Interpretation of legislation

Notwithstanding anything in any other law relating to the construction or interpretation of legislation, in the interpretation of a provision of a Commonwealth or of a State or a Territory law a construction of the provision that would result in the law not being in conflict with the Charter of Rights and Freedoms, or that would further the objects of this Act, shall be preferred to any other construction.

10 No rights of action or criminal liability under Charter

(1) Nothing in the Charter of Rights and Freedoms confers on a person any right of action in respect of the doing of an act that infringes a right or freedom set out in the Charter.

(2) Nothing in this Act renders any person liable to any criminal proceedings in respect of the doing of an act that infringes a right or freedom set out in the Charter.

11 Powers of courts in criminal proceedings

(1) Where, in proceedings against a person for a criminal offence, the court is satisfied that evidence tendered to the court was obtained in a manner that infringed a right or freedom set out in the Charter, the court shall refuse to admit that evidence in the proceedings unless it is satisfied that:

(a) admission of the evidence would substantially benefit the public interest in the administration of criminal justice; and

(b) that benefit would outweigh any prejudice to the rights and freedoms of any person, including the defendant, that has occurred or is likely to occur as a result of the infringement or the admission of the evidence.

(2) Where, in proceedings against a person for a criminal offence, the court is satisfied that a right or freedom of that person set out in the Charter has been infringed, the court may, subject to subsection (1), make such order as it considers appropriate and just in all the circumstances to ensure that the administration of justice is not brought into disrepute by reason of that infringement.

(3) In this section, proceedings means proceedings under a law of the Commonwealth or of a State or a Territory.

Part 2--Parliamentary Charter of Rights and Freedoms

12 Parliamentary Charter of Rights and Freedoms

The Parliamentary Charter of Rights and Freedoms is set out in Schedule 1 which has effect according to its terms.

Part 3--Functions of Human Rights and Equal Opportunity Commission

13 Functions of Human Rights and Equal Opportunity Commission

(1) In addition to the functions of the Commission under the Human Rights and Equal Opportunity Commission Act 1986, the Commission has the following functions:

(a) to inquire into any act or practice that may infringe a right or freedom set out in the Charter, and:

(i) where the Commission considers it appropriate to do so--to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and

(ii) where the Commission is of the opinion that the act or practice infringes a right or freedom set out in the Charter, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement--to report to the Minister in relation to the inquiry; and

(b) to promote an understanding and acceptance in Australia of the rights and freedoms set out in the Charter and of the objects of this Act, and to promote the protection of those rights and freedoms in Australia; and

(c) to undertake research and educational programs, and other programs, on behalf of the Commonwealth for the purpose of promoting the rights and freedoms set out in the Charter and the objects of this Act; and

(d) to examine laws and, when requested by the Minister, proposed laws for the purpose of ascertaining whether the laws or proposed laws are, or would be, in conflict with the Charter, and to report to the Minister the results of any such examination; and

(e) on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to the rights and freedoms set out in the Charter; and

(f) where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings relating to a matter arising under this Act; and

(g) to do anything incidental or conducive to the performance of any of the preceding functions.

14 Performance of functions of Commission in relation to Charter

(1) Subject to subsection (2), the powers and duties of the Commission in relation to the Charter of Rights and Freedoms are the same as those set out in Part 2, Division 3 of the Human Rights and Equal Opportunity Commission Act 1986.

(2) Before commencing to inquire, under this Act, into an act or practice, the Commission shall inform the person who appears to the Commission to be the responsible Minister in relation to the act or practice that the Commission proposes to inquire into the act or practice.

15 Reporting to Parliament

(1) The Minister shall cause a copy of every report furnished to the Minister by the Commission under paragraph 13(a), (d) or (e) to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.

(2) Where the Commission furnishes to the Minister under paragraph 13(a), (d) or (e) a report that relates to:

(a) a State or Territory law, or a proposed State or Territory law; or

(b) an act done or practice engaged in:

(i) by or on behalf of a State or Territory; or

(ii) by or on behalf of an authority of a State or a Territory;

the Minister shall immediately furnish a copy of the report to the Attorney-General of that State or Territory.

(3) The Minister:

(a) shall not cause a copy of a report of the kind referred to in subsection (2) to be laid before either House of the Parliament until:

(i) the expiration of 30 days after a copy of the report was furnished to the Attorney-General of the State or Territory concerned under subsection (2); or

(ii) the Minister receives from the Attorney-General of the State or Territory concerned a statement relating to the law, act or practice to which the report related;

whichever happens first; and

(b) shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days after the occurrence of the earlier of the events referred to in subparagraphs (a)(i) and (ii); and

(c) if the event referred to in subparagraph (a)(ii) is the first to occur, or if, before the report is laid before either House of the Parliament pursuant to paragraph (b), the Minister receives from the Attorney-General concerned a statement of the kind referred to in subparagraph (a)(ii)--shall cause a copy of the statement to be attached to each copy of the report that is laid before a House of the Parliament pursuant to paragraph (b).

Part 4--Miscellaneous

16 Regulations

(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Schedule 1--Parliamentary Charter of Rights and Freedoms

Division 1--General

Article 1

Entitlement to rights and freedoms without discrimination

(1) Every person is entitled to equality before the law and to the human rights and fundamental freedoms set out in this Charter without discrimination and, in particular, without discrimination based on age, race, colour, sex, sexuality, transgender identity, language, religion, political or other opinion, national or social origin, property, birth, mental or physical disability or other status.

(2) Men and women have the equal right to the enjoyment of the human rights and fundamental freedoms set out in this Charter.

Article 2

Effect of Charter on existing rights and freedoms

A right or freedom existing under, or recognised by, any other law shall not be taken to have been diminished or derogated from by reason only that the right or freedom is not set out in this Charter.

Article 3

Permissible limitations

(1) The rights and freedoms set out in this Charter are subject only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society.

(2) A right or freedom set out in this Charter shall not be limited by any law to any greater extent than is permitted by the Covenant.

Division 2--Non-discrimination

Article 4

Equal protection of the law

(1) Every person has the right without any discrimination to the equal protection of the law.

(2) Nothing in this Charter affects the operation of any earlier or later law by reason only of the fact that the law discriminates in favour of a class of persons for the purpose of redressing any disabilities particularly suffered by that class or arising from discrimination against that class.

Article 5

Rights of minority groups

Persons who belong to an ethnic, religious or linguistic minority have the right, in community with other members of their own group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Division 3--Fundamental political rights

Article 6

Right of participation in public life

Every Australian citizen has the right and shall have the opportunity:

(a) to take part in the conduct of public affairs, directly or through freely chosen representatives; and

(b) to vote and to be elected at genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors; and

Article 7

Freedom of expression

Every person has the right to freedom of expression, including the freedom of the press and other media of communication, and the freedom to seek, receive and impart ideas or information of any kind in any form, without interference and regardless of frontiers.

Article 8

Freedom of thought and conscience

Every person has the right to freedom of thought and conscience, including the right to hold opinions without interference.

Article 9

Freedom of religion or belief

(1) Every person has the right to have or adopt a religion or belief of that person's choice without coercion of any kind, and to manifest that religion or belief in worship, observance, practice and teaching, whether individually or in community with others and whether in public or in private.

(2) Every person has the right not to adopt a religion or belief and, subject to Article 14(d), no person shall be compelled to participate in worship or religious ceremony.

Article 10

Right of peaceful assembly

Every person has the right of peaceful assembly.

Article 11

Freedom of association

Every person has the right to freedom of association with others, including the right to form and join trade unions for the protection of that person's interests.

Division 4--Privacy and family rights

Article 12

Right to protection from arbitrary interference

Every person has the fundamental right to the protection from arbitrary or unlawful interference with their dignity, their privacy, the integrity of their person, their reputation and the security of their residence and any other premises. This fundamental right exists throughout Australia in all jurisdictions. For the purposes of giving effect to this right, a search, entry or seizure is unlawful unless:

(a) made pursuant to a warrant issued by a judicial officer upon reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search, who or what is to be searched and what is to be seized; or

(b) made pursuant to a law authorising search, entry or seizure, where search, entry or seizure so authorised is:

(i) necessary to protect life or public safety; or

(ii) justified by some compelling need for immediate action; or

(c) full and free consent is given to the search or entry, provided that the consent is ongoing and a warning was given as to the consequences of the giving of consent; or

(d) made pursuant to a grant of power of search or entry to determine whether a person has complied with legislation which imposes a commercial levy in relation to a serious matter, in circumstances where the legislation provides for this in specific terms and there is no other reasonably practicable means of assessing compliance; or

(e) made pursuant to a grant of power of entry and search to determine whether a person has complied with legislation under which that person has accepted a commercial benefit, subject to being monitored by entry and search.

Article 13

Right to marry and to found a family

Recognising the importance of the family in its many forms:

(a) every person of marriageable age has the right to marry and to found a family; and

(b) no marriage shall be entered into without the free and full consent of the intending spouses.

Article 14

Rights of the child

Recognising that every child has the right to such measures of protection as are required by the child's age:

(a) every child is entitled to the fundamental rights and freedoms set out in this Charter to the greatest extent compatible with the age of the individual child; and

(b) every child shall be registered immediately after birth and shall have a name; and

(d) the liberty of parents and legal guardians to ensure the religious and moral education of their children in conformity with their own convictions is to be respected.

Division 5--Freedom of movement

Article 15

Rights of persons in Australia

(1) Every person lawfully in Australia has the right to freedom of movement and choice of residence.

(2) A person who is lawfully in Australia but is not an Australian citizen shall not be required to leave Australia except on such grounds and in accordance with such procedures as are established by law.

Article 16

Right to enter Australia

Every Australian citizen has the right to enter Australia.

Article 17

Right to leave Australia

Every person has the right to leave Australia.

Division 6--Life, liberty and criminal process

Article 18

Right to life

Every human being has the inherent right to life and no person shall be arbitrarily deprived of life.

Article 19

Liberty and security of person

(1) Every person has the right to liberty and security of person.

(2) No law shall authorise the arbitrary arrest, detention or imprisonment of any person.

(3) No person shall be deprived of liberty except on such grounds, and in accordance with such procedures, as are established by law.

(4) No person shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

Article 20

Slavery and forced labour

No person shall be held in slavery or servitude or be required to perform forced or compulsory labour.

Article 21

Right to be informed of reasons for arrest or detention and of charges

Any person who is arrested or detained shall be informed at the time of the arrest or detention of the reasons for it, and shall be informed promptly and in detail of any charges in a language which that person understands.

Article 22

Right to remain silent and to have access to lawyer

Any person detained in custody has the right to remain silent and the right to have access to a lawyer before and during questioning.

Article 23

Hearings, release and trial

(1) Any person arrested or detained on a criminal charge shall be brought promptly before a judge, magistrate or justice of the peace.

(2) No person awaiting trial shall be unreasonably deprived of the right to release on giving a guarantee to appear for trial.

(3) Any person arrested or detained on a criminal charge has the right to be tried within a reasonable time.

Article 24

Right to test lawfulness of detention

Any person deprived of liberty has the right to take proceedings before a court for the determination of the lawfulness of the detention and to be released if the court finds that the detention is not lawful.

Article 25

Presumption of innocence

Any person charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Article 26

Right to fair hearing

In the determination of any criminal charge, or of any rights or obligations in a suit at law, every person has the right to a fair and public hearing by a competent, independent and impartial tribunal.

Article 27

Rights of the accused relating to trial

Every person who is charged with a criminal offence has the right:

(a) to be informed of the right to obtain legal assistance; and

(b) to communicate with a lawyer; and

(c) to receive legal assistance without cost if the interests of justice so require and the person lacks sufficient means to pay for the assistance; and

(d) to have adequate time and facilities to prepare a defence; and

(e) to be present at any trial relating to the offence and to present a defence; and

(f) to examine the witnesses against the person; and

(g) to obtain the attendance of, and to examine, witnesses for the person; and

(h) to have the free assistance of an interpreter if the person cannot understand or speak the language used in court; and

(i) not to be compelled to testify or confess guilt; and

(j) in the case of a child, to be dealt with in a manner which takes account of the child's age.

Article 28

No retrospective criminal offences or penalties

(1) No person shall be convicted of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it occurred.

(2) No person convicted of any criminal offence shall be liable to a heavier penalty than was applicable at the time the offence was committed.

Article 29

Right of review of conviction and sentence

Every person convicted of a criminal offence has the right to have the conviction or sentence reviewed by a higher tribunal according to law.

Article 30

No trial or punishment for same offence

No person finally convicted or acquitted of a criminal offence shall be tried or punished again for the same offence or for substantially the same offence arising out of the same facts.

Article 31

Rights when deprived of liberty

(1) Every person deprived of liberty has the right to be treated with humanity and with respect for the inherent dignity of the human person.

(2) So far as is practicable:

(a) accused persons shall be segregated from convicted persons, and shall be treated in a manner appropriate to their status as unconvicted persons; and

(b) accused children shall be segregated from accused adults; and

(c) convicted children shall be segregated from convicted adults, and shall be treated in a manner appropriate to their age and legal status.

Article 32

No torture or inhuman treatment and no experimentation without consent

(1) No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

(2) No person shall be subjected to medical or scientific experimentation without that person's free consent.

Part 1 Preliminary

Section 2

Miscellaneous Part 4

Section 16

Schedule 1 Parliamentary Charter of Rights and Freedoms

Division 6 Life, liberty and criminal process

Parliamentary Charter of Rights and Freedoms Schedule 1

Life, liberty and criminal process Division 6

Schedule 1 Parliamentary Charter of Rights and Freedoms

Division 6 Life, liberty and criminal process

Section 16

Parliamentary Charter of Rights and Freedoms Schedule 1

Life, liberty and criminal process Division 6

Section 16

Parliamentary Charter of Rights and Freedoms Bill 2001 No. , 2001

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