Chapter 3.2: A Human Rights Act

Background

Australia, and Tasmania, currently don’t have a Charter of Human Rights. The matter of how to better protect human rights was referred to the Tasmanian Law Reform Institute (TLRI) in 2006 the Tasmanian Government.[1] The following year, the TLRI recommended that a Charter of Human Rights be enacted.[2]

Initially, the Government’s response to the TLRI recommendations was to investigate a state-based bill of rights. However, this was put on hold in 2008[3] when the National Human Rights Consultation Committee (NHRCC) was established.[4]

In 2010 the NHRCC recommended that a Federal Human Rights Act be enacted. This issue was differed by the Government until 2014.[5] However, the Liberal Party, which opposed the establishment of an Act,[6] took office in 2013.

Figure 3.2.1: List of Human Rights under TLRI Model[7]

·        The right to life

·        The protection of the family and children

·        The right to liberty and security of the person

·        The right to humane treatment when detained

·        The right to a fair hearing

·        The right of children to special treatment in the criminal justice process

·        The right to compensation for wrongful conviction

·        The right not to be tried or punished for conduct that was not a criminal offence when it was engaged in (freedom from retrospective criminal punishment)

·        The right not to be imprisoned for a contractual debt

·        The right to privacy and reputation

·        Freedom of movement

·        Freedom of conscience, thought, religion and belief

·        Freedom of expression

·        Freedom of association and peaceful assembly and the right to form and join trade unions

·        The right to vote and to participate in public life

·        The right to self-determination

·        The right to recognition as a person before the law

·        The right to equality before the law and to equal protection of the law

·        Freedom from discrimination

·        The right of ethnic, religious and linguistic minorities to enjoy their own culture

·        The right of Indigenous Tasmanians to maintain their distinctive identity, culture, kinship ties and spiritual, material and economic relationship with the land

·        The right not to be subject to torture or cruel, inhuman or degrading treatment or punishment

·        Freedom from slavery and forced work

·        The right to work and just conditions of work

·        The right of children not to be exploited economically or socially

·        The right to adequate food, clothing and housing

·        The right to the highest attainable standard of physical and mental health

·        The right to education

·        The right not to be deprived of property except on just terms

·        The right to a safe environment and to the protection of the environment from pollution and ecological degradation

·        Freedom from genocide

Legislated Rights and Common Law Rights

While Australia does not have a Federal charter of human rights enshrined in law, the courts offer some protections. One such protection is the Common Law ‘principle of legality’. This principle ensures that courts interpret the law so as not to undermine fundamental rights, unless the express intention otherwise is made in the legislation.[8]

A distinction between the principle of legality, sometimes referred to as a “common law bill of rights”[9] and a constitutional bill of rights is that constitutional rights cannot be overridden by Parliament. State constitutions, however, are Acts of parliament that only require a majority vote to change, rather than a referendum.

One criticism of a statutory bill of rights (a bill of rights in a stand-alone Act of Parliament rather than the constitution) is that a Parliament can over-ride or repeal an Act, making it not superior to the principle of legality.[10]

However, there is a distinction between overriding an Act of Parliament and satisfying the principle of legality. The principle of legality only requires an intention to be made clear, whereas a specific reference to a clause of a Human Rights Act being invalid would be required to override an Act of Parliament.

This would be far more politically challenging as it would require a specific reference to intent and an acknowledgement that a human right is being adversely affected.

Another feature of human rights legislation is a requirement that bills that come before the Parliament are accompanied by a statement of compliance with the charter.[11] This makes it more difficult to suspend human rights and requires some justification.

The 2007 TLRI review noted that while common law has provided important protections for some rights, particularly in criminal law, other rights (such as the right to privacy) have not been protected. Common law has failed to protect women’s rights, such as the right to vote, and have also allowed for presumptions that fail to protect women from violence. These issues have had to be addressed through legislative reform.[12]

Figure 3.2.2: List of Human Rights Provisions in Common Law Nations

Country

Provisions

Country

Provisions

Country

Provisions

Australia

Nil

Nigeria

Constitution[13]

Antigua and Barbuda

Constitution[14]

Bangladesh

Constitution[15]

Malaysia

Nil[16]

Barbados

Constitution[17]

Belize

Constitution[18]

Myanmar

Constitution[19]

Bahamas

Constitution[20]

Brunei

Nil

New Zealand

Stand-alone Act[21]

Dominica

Constitution[22]

Canada

Constitution[23]

Pakistan

Constitution[24]

Grenada

Constitution[25]

Ghana

Constitution[26]

Philippines

Constitution[27]

Jamaica

Constitution[28]

Hong Kong

Constitution[29]

Singapore

Constitution[30]

St Vincent and the Grenadines

Constitution[31]

India

Constitution[32]

South Africa

Constitution[33]

Saint Kitts and Nevis

Constitution[34]

Ireland

Constitution[35]

United Kingdom

Stand-alone Act[36]

Trinidad and Tobago

Constitution[37]

Israel

Quasi-Constitutional[38]

Northern Ireland

Quasi-Constitutional[39]

South Korea

Constitution[40]

Kenya

Constitution[41]

United States

Constitution[42]

American Samoa

Constitution[43]

Bhutan

Constitution[44]

Virgin Islands

Constitution[45]

Cayman Islands

Constitution46

Cyprus

Constitution47

Fiji

Constitution48

Gibraltar

Constitution49

Kiribati

Constitution50

Liberia

Constitution51

Marshall Islands

Constitution52

Nauru

Constitution53

Nepal

Constitution54

Palau

Constitution55

Tonga

Constitution56

Tuvalu

Constitution57

Papua New Guinea

Constitution58

Uganda

Constitution59

 

 

 

 

[46],[47],[48],[49],[50],[51],[52],[53],[54],[55],[56],[57],[58],[59],

Common Law Nations

Australia has been described as the “last remaining Common Law country without [a Bill of Rights]”[60], and the only country “with legal and political systems similar to Australia” without a Bill of Rights.[61] The Australian Human Rights Commission argues “Australia is unusual among common law countries in not having a Constitutional Charter or Bill of Rights.”[62]

Figure 3.2.2 shows a list of Common Law nations with a Bill of Rights. Of 49 nations, only Australia, Brunei and Malaysia lack these provisions.

Brunei, as an absolute monarchy,[63] has a very different political system to Australia. Malaysia has a (partly) democratic parliamentary system and a Common Law legal system. However more than half the members of the Senate are appointed by the Yang di-Pertuan Agong (the monarch)[64] and a separate Syariah legal system exists to govern Islamic offences, that applies solely to Muslim Malaysians.[65]

Australia is in a significant minority of common law countries without enshrined Federal protections for Human Rights.

A Tasmanian Charter of Rights

The Tasmanian Human Rights Act Campaign Committee has renewed calls for a Tasmanian Human Rights Act.[66] The campaign is calling for a model similar to the one proposed by the TLRI in 2007. It has attracted the support of 21 organisations, largely legal advocacy services, unions, and community organisations.[67]

The TLRI report, though somewhat dated, remains the most comprehensive body of work on this issue in Tasmania. The consultation involved the distribution of 4,000 flyers, 66 community meetings, several seminars, and web resources. The TLRI received 407 written submissions.[68]

A Human Rights Act

Policy 3.2.1

A draft Human Rights Act based on the 2007 Tasmanian Law Reform Institute model will be developed for public consultation.

This model will include a Human Rights Commission, a Human Rights unit in the Department of Justice, and public education campaigns.

 

 



[1] Tasmanian Law Reform Institute, A Charter of Rights for Tasmania, 2007.

[2] Ibid, p. 3.

[3] D McKay, Plans for a Tasmanian Bill on Hold, Mercury, 2008.

[4] Parliament of Australia, Parliament and the protection of human rights, 2010.

[5] Ibid.

[6] Ibid.

[7] Tasmanian Law Reform Institute, A Charter of Rights for Tasmania, 2007.

[8] A Henry-Comley, The Principle of Legality: An Australian Common Law Bill of Rights, 15 U. Notre Dame Austl. L. Rev. 83, 2013, pp. 85-86.

[9] J Spigelman, The Common Law Bill of Rights, Statutory Interpretation and Human Rights: Mcpherson Lecture Series, Vol. 3, University of Queensland Press, 2008.

[10] J D Heydon, Are Bills of Rights Necessary in Common Law Systems?, lecture, 2013.

[11] Tasmanian Law Reform Institute, A Charter of Rights for Tasmania, 2007, pp. 36-38.

[12] Ibid, pp. 33-34.

[13] Federal Republic of Nigeria, Constitution of the Federal Republic of Nigeria, 1999.

[14] Republic of Antigua and Barbuda, The Antigua and Barbuda Constitutional Order 1981, 1981.

[15] Government of the People’s Republic of Bangladesh, The Constitution of the People‌‌‍’s Republic of Bangladesh, 1972.

[16] Note: Although the Constitution of Malaysia contains some rights, these are to specific and disparate to be considered a charter of rights.

[17] Barbados, The Constitution of Barbados, 2002.

[18] Belize, Belize Consitution Act, Chapter 4, 2011.

[19] Republic of the Union of Myanmar, Constitution of 2008, 2008.

[20] The Government of the Bahamas, The Constitution of The Commonwealth of The Bahamas, 1973.

[21] Government of New Zealand, Human Rights Act 1993, 2020.

[22] Commonwealth of Dominica, The Constitution of the Commonwealth of Dominica, 1978.

[23] Government of Canada, Constitution Act 1982, 1982.

[24] Islamic Republic of Pakistan, Constitution of Pakistan, 2018.

[25] State of Greneda, Grenada Constitution Order 1973, 1973.

[26] Government of Ghana, Constitution of the Fourth Republic Of Ghana (Promulgation) Law, 1992.

[27] Republic of the Philippines, The Constitution of the Republic of the Philippines, 1987.

[28] Jamaica, The Jamaica (Constitution) Order in Council 1962, 1962.

[29] Hong Kong Special Administrative Region, Hong Kong – Constitution, 1990.

[30] Republic of Signapore, Constitution of the Republic of Singapore, 1965.

[31] Saint Vincent and the Grenadines, Constitution of Saint Vincent and the Grenadines, 1979

[32] Government of India, The Constitution of India, 1949.

[33] South African Government, Constitution of the Republic of South Africa, 1996.

[34] Federation of Saint Kitts and Nevis, The Constitution of Saint Christopher and Nevis, 1983.

[35] Government of Ireland, Constitution of Ireland, 2020.

[36] United Kingdom, Human Rights Act 1998, 1998.

[37] Republic of Trinidad and Tobago, The Constitution of the Republic of Trinidad and Tobago, 2000.

[38] Note: Israel has no constitution, instead there are a number of laws known as ‘basic laws’ which form the function of a constitution. The Basic Law: Human Dignity and Liberty provides for human rights.

[39] Note: The Northern Ireland Act 1998 devolves legislative powers to Northern Island (similar to the establishment of legislatures for Australian territories). This Act constrains the legislature from making laws contrary to human rights.

[40] Republic of Korea, Constitution of the Republic of Korea, 1987.

[41] Republic of Kenya, Constitution of Kenya, 2010.

[42] United States of America, Transcription of the 1789 Joint Resolution of Congress Proposing 12 Amendments to the U.S. Constitution, n.d.

[43] American Samoa, Revised Constitutuion of American Samoa,1960.

[44] Kingdom of Bhutan, The Constitution of The Kingdom of Bhutan, 2008.

[45] Government of the Virgin Islands, The Virgin Islands Constitution Order 2007, 2007.

[46] Cayman Islands, The Cayman Islands Constitution Order 2009, 2009.

[47] Constitute Project, Cyprus's Constitution of 1960 with Amendments through 2013, unofficial translation, 2013.

[48] Republic of Fiji, Constitution of the Republic of Fiji, n.d.

[49] Government of Gibraltar, Gibraltar Constitution Order 2006, 2006.

[50] Kiribati, The Constitution of Kiribati, Schedule to the Kiribati indepedence Order, 1979.

[51] Constitute Project, Liberia's Constitution of 1986, unofficial translation, 2013.

[52] Constitute Project, Marshall Islands's [sic] Constitution of 1979 with Amendments through 1995, unofficial translation, 2020.

[53] Nauru, Constitution of Nauru, published by the United Nations Educational, Scientific and Cultural Organization, n.d.

[54] Government of Nepal, The Constitution of Nepal, 2015.

[55] Republic of Palau, Constitution of the Republic of Palau, 1979.

[56] Tonga, Constitution of Tonga, published by the United Nations Educational, Scientific and Cultural Organization, 2016.

[57] Tuvalu, The Constitution of Tuvalu, 2008.

[58] Independent State of Papua New Guinea, Constitution of the Independent State of Papua New Guinea, 1975.

[59] Uganda, Constitution of Uganda, 1995.

[60] K Suter, Does Australia need a Bill of Rights?, Wesley Mission, 2008.

[61] Law Council of Australia, Charter or Bill of Rights: Questions & Answers, n.d.

[62] Australian Human Rights Commission, Common law rights, human rights scrutiny and the rule of lawy, n.d.

[63] N S Talib, Brunei Darussalam: Royal Absolutism and the Modern State, 2013.

[64] Malaysia, Federal Consitution, 2010, p. 52.

[65] F S Shuaib, Islamic legal system in Malaysia, Pacific Rim Law and Policy Journal, 2012, p. 103.

[66] Tasmanian Human Rights Act Campaign, Summary of the Tasmanian Human Rights Act, n.d.

[67] Tasmanian Human Rights Act Campaign, Supportive Organisations, 2021.

[68] Tasmanian Law Reform Institute, A Charter of Rights for Tasmania, 2007, p. 153.