Common(wealth) Knowledge #41: Calls for an Australian Human Rights Act renewed

What could this act look like?

The Australian Human Rights Commission has unveiled its model for a comprehensive national Human Rights Act. The AHRC is now pushing the government of Prime Minister Anthony Albanese to adopt its proposal into legislation, with the backing of many Australian legal bodies. But what would this Human Rights Act look like, and how would it operate, given the obstacles that the government would face?

Recently, in Common(wealth) Knowledge #39, we looked at how the Australian Constitution doesn’t have the broad protection of human rights that can be found in the constitutions of other countries, like the United States and South Africa. Although federal protections for human rights would be more difficult than state-level protections, now that a federal model is put forward, it is possible to examine its merits.

Politicians have all but given up on bringing human rights into the Constitution via a referendum. This only leaves them with the option of human rights legislation. For a Human Rights Act to be valid, the Commonwealth government must be able to point to where the Constitution gives them the authority to pass the Act. This authority is referred to as a ‘head of power,’ mostly found in Section 51 of the Constitution.

There are only two heads of power with any real chance of success, the referral power of Section 51(xxxvii) and the external affairs power of Section 51(xxix).

Because Sections 106-108 give the States all powers not given to the Commonwealth government in the Australian Constitution, the referral power allows the States to ‘refer’ the power to make laws on a particular subject to the Commonwealth government. This ensures a uniformity of laws and promotes discourse between the two levels of government, as the States have a say on the laws passed under the referred power. But this only works if all of the States agree. The federal Family Court was created under a referred power, except Western Australia refused to refer its power to the Commonwealth, so it has its own family law system, which makes Australian family law more complicated.

This is why the proposed Human Rights Act will instead be passed under the external affairs power. The High Court affirmed in the Tasmanian Dam Case (1983) that the Commonwealth government can use the external affairs power to adopt international treaties into Commonwealth legislation.

The two treaties being used are the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). As mentioned in Common(wealth) Knowledge #39, Senator Lionel Murphy had tried to use the first treaty in 1973 as the basis for human rights legislation, but it wasn’t ratified in time, meaning it didn’t have enough countries’ signatures to actually become international law. It’s also important to mention that the Universal Declaration of Human Rights isn’t being used because its not a legal treaty.

An excellent case on how Australian law treats international law is Bradley v Commonwealth (1973). Just because a treaty is ratified by the Commonwealth government doesn’t mean that it is binding on Australia. In this case, the UN Security Council made some resolutions against Rhodesia for the apartheid regime there. The Commonwealth government issued regulations to the same effect under the Charter of the United Nations Act 1945 (Cth). Section 3 of this law said that the UN Charter was ‘approved’ by Australia. The High Court struck this down. At paragraph [26] of their ruling, Barwick CJ and Gibbs J said the following:

“Section 3 of the Charter of the United Nations Act 1945 (Cth) was no doubt an effective provision for the purposes of international law, but it does not reveal an intention to make the Charter binding upon persons within Australia as part of the municipal [domestic] law of this country, and it does not have that effect. Since the Charter and the resolutions of the Security Council have not been carried into effect by appropriate legislation, they cannot be relied upon as a justification for executive acts that would otherwise have been unjustified.”

Ratifying a treaty means that the Commonwealth government accepts that it has international obligations. Ratification is done by the executive branch of government. However, the adoption of a treaty, meaning making it legally binding in Australia, requires the involvement of the legislature. Check out Common(wealth) Knowledge #18 for more about how this works.

In keeping with a common theme throughout Australia, the AHRC’s proposed Human Rights Act doesn’t recognise absolute rights. It recognises that there may be situations in which human rights can be overridden. This would likely involve a proportionality test, examining whether the limitations imposed are suitably connected to the purpose for the limitations, necessary because there are no other reasonable alternatives that are better, and adequate in how they balance the rights with the need for the limitations.

It is important to keep in mind, however, that this isn’t a uniquely Australian position. In fact, the very same treaties that would be adopted into Australian law by the Human Rights Act make it clear that rights can be limited. Article 4 of the ICCPR allows for all but the most fundamental rights to be ‘limited’ or ‘derogated’ in extreme circumstances.

In keeping with the approach taken in the Queensland, Victorian, and Australian Capital Territory human rights legislation, federal courts would be required to interpret legislation in such a way as to make it consistent with human rights, wherever possible. However, federal courts would not be able to invalidate legislation for being inconsistent with the Human Rights Act. This is because it is difficult to prioritise one piece of legislation over another; that is what constitutions are for.

Article 50 of the ICCPR says that the treaty applies to “federal States without any limitations or exceptions.” Historically, neither Australia nor the United States was a fan of this Article, as it applies to their state governments, not just their federal government. Given that the Human Rights Act will only apply to the Commonwealth, it remains to be seen whether the legislation will be challenged for not adopting Article 50, and therefore isn’t an adoption of the entire treaty.

For implied freedom of political communication fans, the Human Rights Act will have some interesting implications for the future of the implied freedom, if the Act becomes law. The implied freedom is drawn from the Constitution, but the High Court has moved away from treating it as ‘freedom of speech,’ preferring to characterise it as an ‘equal opportunity to engage in politics and government,’ as briefly touched on in Common(wealth) Knowledge #38. The Act, which is only legislation, will almost certainly protect freedom of speech, so it will be interesting to watch how the courts will treat the two together, and if there will be any overlaps or gaps.

Whether or not the ICCPR and ICESCR make their way into Australian legislation remains to be seen. If they are, then Lionel Murphy’s push to adopt the ICCPR into Australian law will finally come to fruition, exactly 50 years in the making. But, if the treaties are adopted, then it is highly likely that legal challenges will be brought against the Human Rights Act, and it will mark one of the biggest changes in Australian law since the recognition of native title.

To find out more about the AHRC’s proposal, check out their two-page summary or their full report of the proposal.F

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Sources:

Bradley v Commonwealth (1973) 128 CLR 557; [1973] HCA 34 (‘Rhodesian Information Centre Case’).

Charter of Human Rights and Responsibilities Act 2006 (Vic).

Charter of the United Nations Act 1945 (Cth).

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21 (‘Tasmanian Dam Case’).

Human Rights Act 2004 (ACT).

Human Rights Act 2019 (Qld).

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).