Constitutional and Legislative Framework

The following content draws upon, in part, the Joint Australian NGO Coalition's fact sheets prepared for the Universal Periodic Review.

Australia has no bill of rights

There is no overarching and comprehensive protection of human rights in Australian law, such as a bill of rights enshrined in the Australian Constitution or by legislation. In 2009, an independent review commissioned by the Australian Government found that Australia's legal and institutional protection of human rights is inadequate, particularly for individuals and communities that are marginalised or disadvantaged. Despite widespread public support for the introduction of a Human Rights Act, (the national human rights consultation received over 28,000 public submissions in support of a Human Rights Act) the Australian Government has said it will not consider the issue of comprehensive legal rights protection until at least 2014.

While Australia's domestic law contains a number of pieces of legislation that protect certain human rights, particularly the right to non-discrimination, they provide only patchwork protection. Most rights contained in the ICCPR and ICESCR are not justiciable or enforceable in Australian courts or tribunals. Where some protection exists, such as the Racial Discrimination Act 1975 which partly implements the Convention on the Elimination of Racial Discrimination, the protections are merely Acts of Parliament and can be overridden by subsequent law. Indeed, the Australian Government can, and has, enacted laws which override or suspend aspects of existing rights protections, and which pose a significant challenge to its compliance with international human rights law.

The role of the Australian Human Rights Commission

Although Australia does have an independent national human rights institution in accord with the Paris Principles, the authority of the Australian Human Rights Commission is limited to inquiry and complaints. The Commission cannot make enforceable determinations and there is no requirement that the Australian Government implement or even respond to its recommendations. There is also insufficient funding for the Commission to properly conduct its functions and activities.

How we deal with the views and recommendations of the United Nations

Australia lacks any institutional mechanism for the systematic domestic consideration and implementation of views and recommendations made by UN human rights mechanisms. Australia has a poor record of taking action in response to treaty body recommendations, which it does not recognise as legally authoritative, and has rejected the adverse findings and recommendations of the UN Human Rights Committee on a significant number of occasions.

What the UN Human Rights Council recommended in the Universal Periodic Review

In January 2011 Australia was reviewed by the UN Human Rights Council during the Universal Periodic Review (or UPR) (a process whereby the human rights performance of all UN member states is reviewed by other states).  In June 2011 Australia provided its response to the 145 recommendations made by the Human Rights Council.

The Government has accepted over 90 per cent of the recommendations and has committed to incorporating the recommendations it has accepted into the National Human Rights Action Plan.

In relation to Australia's constitutional and legislative framework, the Human Rights Council made a number of relevant recommendations.  Australia has responded to these recommendations as set out in the following table.

Recommendation

Stance

Explanation

Continue to incorporate international human rights obligations into domestic legislation (recommendation 86.20).

Already reflected

Australia accepts the recommendation on the basis it is reflected in existing laws or policies and Australia will continue to take steps to achieve relevant outcomes.

Continue measures to adopt a National Action Plan on Human Rights (recommendation 86.30).

Already reflected

Consider ratifying the ILO Convention No. 169 in relation to the rights of indigenous people (recommendation 86.12).

Already reflected

Consider withdrawing reservations to Article 4 (a) of the ICERD (recommendation 86.14).

Already reflected

Consider implementing the recommendations of human rights bodies and special procedures (recommendations 86.35, 86.36 and 86.38)

Already reflected

Bring Australia’s legislation and practices in line with international obligations (recommendation 86.17).

Accepted

Australian Government practice is to satisfy itself that legislation and policies necessary to implement a treaty are in place before Australia becomes bound by it.

Implement the observations of the Human Rights Committee by adopting the necessary legislation to ensure that no one is extradited to a State where they would be in danger of the death penalty (recommendation 86.34).

Accepted

The Australian Government considers that provisions of the Extradition Act 1988, regarding surrender where the offence for which extradition is sought is punishable by the death penalty, are consistent with Australia’s international obligations.

Ratify the Optional Protocol to the Convention against Torture or other Inhuman or Degrading Treatment or Punishment (recommendations 86.1 – 86.6).

Accepted

The Australian Government is working with States and Territories to take the necessary steps towards ratifying the Optional Protocol.

Incorporate Australia’s international human rights obligations into domestic law (recommendations 86.18 and 86.19).

Accepted-in-part

The Australian Government incorporates international obligations into domestic law to the extent considered necessary, noting that some obligations are reflected in policy.

Strengthen Australia’s human rights framework by establishing a comprehensive legislative scheme for all human rights (recommendation 86.21).

Accepted-in-part

Measures introduced under Australia’s Human Rights Framework will require that a statement of compatibility with Australia’s human rights obligations is provided for all new federal legislation.

Establish a National Children’s Commissioner to monitor compliance with the Convention on the Rights of the Child (recommendation 86.28).

Accepted-in-part

The Australian Government is currently exploring a possible role for a national children’s commissioner.

Ratify the Convention for the Protection of All Persons from Enforced Disappearance (recommendations 86.7 – 86.9).

Accepted-in-part

Australia cannot commit to becoming a party to the CED, but will formally consider becoming a party to this treaty.

Ratify the ILO Convention No. 169 in relation to the rights of indigenous people and incorporate it into its national norms (recommendation 86.11).

Accepted-in-part

Australia cannot commit to becoming a party to the ILO169, but will formally consider becoming a party to this treaty.

Withdraw reservations to a number of international human rights treaties (see recommendations 86.13, 86.15 and 86.16).

Accepted-in-part

Australia will systematically review its reservations to human rights treaties, having regard to whether reservations remain necessary.

Implement the recommendations made by the UN Special Rapporteur on the rights of indigenous people after his visit in 2009 (recommendation 86.37)

Accepted-in-part

The Australian Government has already implemented many recommendations of the Special Rapporteur, including fully reinstating the Racial Discrimination Act 1975 in relation to the Northern Territory Emergency Response.

Comply with the recommendations of the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination against Women by abolishing non-therapeutic sterilisation of women and girls with disabilities (recommendation 86.39)

Accepted-in-part

The Australian Government considers that the ‘best interests’ test as articulated and applied in Australia is consistent with Australia’s international obligations. The Attorney-General intends to initiate further discussions with State and Territory counterparts.

Incorporate Australia’s international human rights obligations into domestic law through the adoption of a comprehensive Human Rights Act (recommendation 86.22).

Rejected

The Australian Government considers that existing mechanisms, together with new requirements under Australia’s Human Rights Framework, provide for the protection and promotion of human rights. It does not intend to introduce a Human Rights Act.

Ratify the International Convention on the Rights of Migrant Workers (recommendations 86.9 – 86.10).

Rejected

Australia views existing protections in place for migrant workers as adequate and does not intend to become a party to the ICRMW.


Submissions containing further discussion of this issue can be found on the resources page.