Human rights are not protected in Australia
We assume our basic human rights are protected by law - but Australia is the only Western country on earth which doesn't.
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By Jens Korff | 14 min read
Last updated: 13 August 2020
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Contents:
Scattered rights, but no human rights bill
Are our human rights protected?
What if you need to complain?
UN periodically reviews Australia's human rights
Aboriginal people and human rights
How Australia fares with respect to Aboriginal human rights
Video: Should Australia have a Human Rights Act (Bill of Rights)?
What can I do next?
#Scattered rights, but no human rights bill
Did you know:
Australia remains the only Western democratic country with neither a constitutional nor federal legislative bill of rights to protect its citizens.
What is a 'Bill of Rights'? A bill of rights is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and private citizens.[1]
When Australian politicians had to decide whether to adopt a bill of rights they decided against it. Politicians were fearful that a bill of rights would undermine some of the discriminatory provisions of the law at that time, for example those which disadvantaged Aboriginal people and the Chinese.[2]
Rather human rights may be found scattered in the Constitution, common law and legislation - Acts passed by the Commonwealth Parliament or State or Territory Parliaments.
There are 5 explicit individual rights in the Constitution. These are
the right to vote (Section 41),
protection against acquisition of property on unjust terms (Section 51 (xxxi)),
the right to a trial by jury (Section 80),
freedom of religion (Section 116), and
prohibition of discrimination on the basis of state of residency (Section 117).
Australia's common law was inherited from the United Kingdom and includes the Magna Carta of 1215 which was probably the first human rights treaty. Common law is made by judges on a case-by-case basis. It can be expanded or reduced by legislation passed by Parliament.[3]
Since Federation, many attempts were made to introduce a bill of rights – 1929, 1959, 1942, 1973, 1983, 1985, 1988 and 2009, and probably more. So far, all failed.
#Are our human rights protected?
No. Fundamental freedoms and rights of Australian citizens are not protected by national law.
While Australia is a signatory on all five treaties that make up the UN International Bill Of Human Rights, there is no provision to check if the government is actually following its obligations. A lot of times it doesn't.
However, there are also people who see advantages in a lack of human rights protection. They argue that it allows for "genuine debates" about rights and the "tweaking, updating, and refining" of them to shape Australian society to present needs. "The best rights protection," so the argument goes, "will always be an engaged and critical electorate." [4]
#What if you need to complain?
If you believe your human rights have been violated in Australia you are very much on your own.
Australia as a whole doesn't have legislation that comprehensively brings the human rights from the international system into a domestic enforceable document.[5]
Other than Victoria and the Australian Capital Territory there is no state or territory with human rights legislation.[3] Even if the Commonwealth is found to be in violation of human rights, no Australian court can award a remedy.
Some decisions of the High Court of Australia show how necessary bill of rights protections are, for example when prisoners lose civil rights or legal representation.[2]
#UN periodically reviews Australia's human rights
In 2011 the United Nations introduced a new scheme called Universal Periodic Reviews (UPR). Every four years each of the 193 UN member countries undergoes a peer review and assessment of their human rights record.
It is a rigorous process. The nation reviewed is invited to respond in detail, and a forum is held at the UN during which any other member may make criticisms and suggestions for improvement.
At its first UPR in January 2011, Australia received 53 red cards and 145 recommendations to clean up its act from fellow UN member countries.
While more than 90% of the recommendations from 2011 were accepted in whole or in part by the Australian government, only 10% of those were implemented by 2015.[6]
After the UPR process for Australia in 2011, four nations recommended Australia introduce a Human Rights Act, but the government rejected. It argued that "existing mechanisms, together with new requirements under Australia’s Human Rights Framework, provide for the protection and promotion of human rights" and that it had no intention to introduce a Human Rights Act.[7]
Other recommendations rejected include prohibiting corporal punishment of children, repealing mandatory detention and lawful protection of irregular migrants.
During the second UPR then-Prime Minister Tony Abbott, after renewed criticism of Australia's human rights record, was quoted as saying that Australia was "sick of being lectured by the United Nations" [8] — as if the recommendations were items to be adopted when it suited a government, and discarded when they didn't fit the domestic agenda.
The UPR criticised the treatment of Aboriginal people: the disproportionately high imprisonment rates; the gaps in education, employment, health and social function outcomes; the inequities that persist along racial lines because governments of any colour did not consult, have been apathetic, or hapless when they did bother.
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Average number of Aboriginal and Torres Strait Islanders in prison (June quarter). Source: Australian Bureau of Statistics#Aboriginal people and human rights
The human rights and freedoms particularly relevant to Aboriginal people include the right to:
an adequate standard of living, including adequate food, clothing and housing (Article 25 of the UN's Universal Declaration of Human Rights),
the highest attainable standard of physical and mental health (Article 25),
be free and safe from violence (Article 3),
self-determination which can include a guarantee of full, free and effective participation in all aspects of public life, particularly government decision-making (Article 27),
recognition and protection of traditional lands, territories and resources (Article 17),
enjoyment of culture and use and preservation of languages, and to not be subjected to forced assimilation or destruction of culture (Articles 12 & 18),
be treated equally under the law (Articles 7 & 9).
Aboriginal people have to live with the consequences of Australia’s failure to protect their basic human rights every day, and continue to experience racial discrimination in many areas of life.
There are clear differences between the experiences of Aboriginal and non-Aboriginal people in Australia across all indicators of quality of life. Aboriginal people generally experience lower standards of health, education, employment and housing. They are over-represented in the criminal justice system and the care and protection systems nationally compared to non-Aboriginal people.
Aboriginal people also suffer from the limited recognition and protection of their cultures, languages and rights and ownership of land and resources.
#How Australia fares with respect to Aboriginal human rights
In 2011, with the Northern Territory intervention in full swing, Australia appeared before the United Nations Human Rights Council’s Working Group on the Universal Periodic Review (UPR).
53 countries asked Australia about its human rights record and made 145 recommendations. These covered a wide range of human rights issues including the treatment of Aboriginal peoples, asylum seekers, multiculturalism and racism, and the status of Australia’s obligations under international human rights law.[9]
Over 90% of recommendations were "accepted" in full or in part by the Australian government. Implementation, however, is a different story.
The Human Rights Commission's 2014 UPR Progress Report complains that "at the present time [December 2014] only 11% of recommendations that Australia accepted (in whole or in part) have been fully implemented since 2012.".[10]
The information in the table below is taken from the report and shows the recommendations which relate to Aboriginal people in Australia.
Human rights recommendations to Australia related to Aboriginal peopleRecTextGovernment responseProgress*24 Fully implement the Racial Discrimination Act and the revision of federal laws to be compatible with the United Nations Declaration on the Rights of Indigenous Peoples (Norway) Accepted in part Partly implemented
25 Consider reinstating, without qualification, the Racial Discrimination Act into the arrangements under the Northern Territory Emergency Response and any subsequent arrangement (Canada) Accepted Partly implemented
26 Consult with Aboriginal and Torres Strait Islander people, and take into consideration the guidelines proposed by the Australian Human Rights Commission before considering suspension of the Racial Discrimination Act for any future intervention affecting the Aboriginal and Torres Strait Islander people (Slovenia) Accepted Not implemented
36 Consider implementing the recommendations of human rights treaty bodies and special procedures concerning indigenous people (Jordan) Accepted Partly implemented
37 Implement the recommendations made by the United Nations Special Rapporteur on the rights of indigenous people after his visit in 2009 (Norway) Accepted in part Partly implemented
95 Enhance the contacts and communication between Aboriginal and Torres Strait Islander communities and representatives of the law enforcement officials and enhance the training of those officials with respect to cultural specificities of the above communities (Austria) Accepted Partly implemented
97 Establish a National Compensation Tribunal, as recommended in the “Bringing Them Home” report, to provide compensation to Aboriginal and Torres Strait Islander people that are negatively affected by the assimilation policy, particularly as it applies to children unfairly removed from their families and the parents of those children (Slovenia) Rejected –
101 Step up efforts to ensure that people living in the remote and rural areas, in particular the indigenous peoples, receive adequate support services relating to accommodation and all aspects of health and education (Malaysia) Accepted Partly implemented
102 Reform the Native Title Act 1993, amending strict requirements which can prevent the Aboriginal and Torres Strait Islander peoples from exercising the right to access and control their traditional lands and take part in cultural life (United Kingdom) Accepted in part
"The Australian Government continually reviews the operation of the native title system through practical, considered and targeted reforms. Legislation provides for Indigenous Australians to access, and to perform cultural activities on, their traditional lands through statutory regimes and cultural heritage laws." Partly implemented
103 Institute a formal reconciliation process leading to an agreement with Aboriginal and Torres Strait Islander people (Slovenia) Accepted in part
"The Australian Government is committed to the process of reconciliation between Indigenous and other Australians, but does not intend to enter into a formal agreement. See recommendation 110." Partly implemented
104 Continue in particular the process of constitutional reform in order to better recognise the rights of indigenous peoples (France) Accepted
"The Australian Government is committed to pursuing recognition of Indigenous peoples in the Australian Constitution and has appointed an Expert Panel to develop options and lead a wide-ranging national public consultation and engagement program." Partly implemented
105 Continue to implement its efforts to attain the constitutional recognition of indigenous peoples (Colombia) Accepted
"The Australian Government is committed to pursuing recognition of Indigenous peoples in the Australian Constitution and has appointed an Expert Panel to develop options and lead a wide-ranging national public consultation and engagement program." Partly implemented
106 Revise its Constitution, legislation, public policies and programmes for the full implementation of the United Nations Declaration of the Rights of Indigenous Peoples (Bolivia); ensure effective implementation of the Declaration on the Rights of Indigenous People, including in the Northern Territory, and provide adequate support to the National Congress of Australia’s First Peoples to enable it to address the needs of indigenous people (Ghana); develop a detailed framework to implement and raise awareness about the Declaration in consultation with indigenous peoples (Hungary); take further steps to ensure the implementation of the Declaration on the Rights of Indigenous Peoples (Denmark) Accepted in part
"The Australian Government supports promotion of and respect for the principles in the Declaration. The Australian Government has committed funding in support of the establishment and early operation of the National Congress of Australia’s First Peoples." Partly implemented
107 Launch a constitutional reform process to better recognise and protect the rights of the Aboriginals and Torres Strait Islanders which would include a framework covering the principles and objectives of the United Nations Declaration on the Rights of Indigenous Peoples and would take into account the opinions and contributions of indigenous peoples (Guatemala) Accepted
"The Australian Government is committed to pursuing recognition of Indigenous peoples in the Australian Constitution and has appointed an Expert Panel to develop options and lead a wide-ranging national public consultation and engagement program." Partly implemented
108 Include in its national norms recognition and adequate protection of the culture, values and spiritual and religious practices of indigenous peoples (Bolivia) Accepted
"Where appropriate in law and in policy, the Australian Government will continue to recognise and protect the culture and heritage of Indigenous peoples." Partly implemented
109 Promote the inclusion and participation of indigenous peoples and Torres Strait Islanders in any process or decision-making that may affect their interests (Bolivia) Accepted
"The Australian Government recognises the importance of engaging in good faith consultation with Indigenous peoples in relation to decisions that affect them. See recommendation 110." Not implemented
110 Strengthen efforts and take effective measures with the aim of ensuring enjoyment of all rights for indigenous people, including participation in decision-making bodies at all levels (Bosnia and Herzegovina) Accepted
"The National Congress of Australia’s First Peoples will provide a central mechanism with which government, the corporate and community sectors can engage and partner on reform initiatives." Not implemented
111 Ensure that its legislation allows for processes of consultations in all actions affecting indigenous peoples (Mexico) Accepted
"The Australian Government recognises the importance of engaging in good faith consultation with Indigenous peoples in relation to decisions that affect them. No legislative barriers to consultation have been identified." Not implemented
112 Continue to engage with the Aboriginal population and Torres Strait Islanders and ensure the equal protection of their fundamental rights (Indonesia) Accepted Not implemented
113 Increase the participation of the Aboriginal and Torres Strait Islander communities in the process of closing the gap in opportunities and life outcomes (Austria) Accepted Not implemented
114 Continue the implementation of policies aimed at improving the living standards of indigenous peoples and take all the necessary measures to eradicate discrimination against them (France) Accepted Partly implemented
115 Continue its efforts to narrow the gap in opportunities and life outcomes between indigenous and non-indigenous Australians (Singapore) Accepted Partly implemented
116 Intensify its on-going efforts to close the gap in opportunities and life outcomes between Indigenous and non-Indigenous peoples, especially in the areas of housing, land title, health care, education and employment (Thailand) Accepted Partly implemented
117 Continue addressing effectively the socio-economic inequalities faced by indigenous people (Jordan) Accepted Partly implemented
118 Carry out, in consultation with the communities concerned, a comprehensive assessment of the effectiveness of actions and strategies aimed at improving socio-economic conditions of indigenous peoples and if necessary correct these actions (Belgium) Accepted
"The Council of Australian Governments Reform Council will provide a comprehensive report each year on progress against relevant targets." Partly implemented
119 Take immediate legal measures to remove restrictions against access of indigenous women and children to appropriate health and education services and employment opportunities (Islamic Republic of Iran) Accepted Partly implemented
120 Continue efforts to increase the representation of indigenous women in decision-making posts (Morocco) Accepted Partly implemented
* As reported in the 2014 UPR Progress Report. [10]
#Video: Should Australia have a Human Rights Act (Bill of Rights)?
The Chair of the National Human Rights Consultation Committee Father Frank Brennan leads the discussion at the University of NSW.
#What can I do next?
International Human Rights Day is on December 10 each year and celebrates the adoption of the Universal Declaration of Human Rights by the UN in 1948.
Read more resources
Australia's Universal Periodic Review on human rights (Australian Human Rights Commission)
Read the annual Social Justice Report which examines the key human rights issues facing Aboriginal people and makes recommendations about changes to government policies, programs and laws. It covers issues ranging from self-determination to criminal justice and an annual report card on the reconciliation process.
The UN's Universal Declaration of Human Rights
ReferencesView article sources (10)
Harvard citation
Korff, J 2020, Human rights are not protected in Australia, <https://www.creativespirits.info/aboriginalculture/law/human-rights-are-not-protected-in-australia?fbclid=IwAR0xVuBP-mbLf0A0---fJZlq-WbbVj0GE5Sd6iUMHJ7yyulnAv6p3w0R5tI>, retrieved 24 October 2020
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Source: Human rights are not protected in Australia - Creative Spirits, retrieved from https://www.creativespirits.info/aboriginalculture/law/human-rights-are-not-protected-in-australia?fbclid=IwAR0xVuBP-mbLf0A0---fJZlq-WbbVj0GE5Sd6iUMHJ7yyulnAv6p3w0R5tI
