Australia and the Protection of Fundamental Rights
Photo source: Thinklink, The Bill of Rights <https://www.thinglink.com/scene/733045095539933186>.
Often times in popular culture, reference is made to enforceable individual rights. For example, in America, reference is often made to various amendments within the American Constitution such as their right to freedom of speech provided under the first amendment and their controversial second amendment, which provides the right to bear arms. However, it may come to a surprise to some individuals that Australia does not have a bill of rights and only a small number of fundamental human rights are expressed, or implied, within our constitution. The aim of this article is to explore the way in which some of the fundamental rights provided in the Universal Declaration of Human Rights (UDHR) are protected in Australia.
Fundamental rights under the UDHR
The UDHR provides a list of internationally accepted fundamental human rights, which should be enforced by all nations around the world. Such rights include, the right to be free from discrimination, slavery and torture, the right to a fair trial, to be treated equally before the law and to be protected from unfair imprisonment. Australia played a significant role in the development of the UDHR, however a strong debate has developed in Australia regarding whether or not such fundamental rights should be implemented in a constitutional bill of rights.
Rights Expressed/Implied in the Australian Constitution
The Australia Constitution provides five explicit individual rights. This includes the right to vote (section 41), the right to be provided with protection against acquisition of property on unjust terms (section 51 (xxxi)), the right to trial by jury (section 80), the right of religious freedom (section 116) and the right to be free from discrimination, however this last individual right is limited to discrimination on the basis of state residency (section 117). Additionally, in recent years, the High Court of Australia has also come to recognise an implied freedom of political communication within the Australian Constitution.
Protecting Other Fundamental Rights through Statute and Common Law
It is important to note that despite the limited number of rights provided within the Australian Constitution, this does not mean that fundamental rights are completely unprotected. Australia provides statutory protection to a number of fundamental rights. For example, the Commonwealth and New South Wales Parliaments have both introduced laws against discrimination, such as the Anti-Discrimination Act 1977 (NSW). Additionally, fundamental rights are protected through the Common Law, specifically through the process of statutory interpretation in which judges presume that, in the absence of clearly expressed words, parliament does not intent to abrogate fundamental human rights and freedoms.
However, there are various limitations associated with these two methods of protecting fundamental human rights. For instance, the Anti-Discrimination Act 1977 (NSW) provides a list of various forms of discrimination that is against the law in NSW including, racial discrimination, sex discrimination, discrimination of the grounds of disability, discrimination on the grounds of homosexuality and age discrimination. However, this Act also provides a list of exceptions, such as section 38, which provides exceptions to sex discrimination in relation to sport. Additionally, it should be noted that Common Law presumptions are always effective in protecting individual rights because they can be easily overridden by Parliament.
In conclusion, this article has briefly identified the various rights promoted by the UDHR, listed the limited rights provided within the Australian Constitution and considered the manner in which certain rights, such as the right to freedom from discrimination, can be protected by statute and the common law and some of the limitations associated with these forms of protection. Whether or not a bill of rights should be adopted in Australia is still the topic of much debate, but it is nonetheless important for us as citizens to be aware and to consider the manner in which some of our fundamental rights are protected.
References
[1] The White House, The Constitution <https://www.whitehouse.gov/1600/constitution>.
[2] Australian Human Rights Commission, What is the Universal Declaration of Human Rights? <https://www.humanrights.gov.au/publications/what-universal-declaration-human-rights>.
[3] Universal Declaration on Human Rights, GA Res 217A(III), UN GAOR, 3rd Sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).
[4] Australian Human Rights Commission, Australia and the Universal Declaration on Human Rights <https://www.humanrights.gov.au/publications/australia-and-universal-declaration-human-rights>.
[5] Raylene D’Cruz, ‘Assessing the Need for a Constitutionally Entrenched Bill of Rights in Australia’ (2007) 3(1) Bond University Student Law Review, 1.
[6] Commonwealth of Australian Constitution Act 1900 (Imp).
[7] Australian Human Rights Commission, How are human rights protected in Australian law? (2006) <https://www.humanrights.gov.au/how-are-human-rights-protected-australian-law>.
[8] Chief Justice Robert French, ‘The Constitution and the Protection of Human Rights’ (Speech delivered at the Edith Cowan University Vice-Chancellor’s Oration, Perth, 20 November 2009).
[9] Bernice Carrick, ‘Freedom of the Wallaby: A Comparison of Arguments in the Australian Bill of Rights Debate (2010) 1 The Western Australian Jurist, 68.
[10] Anti-Discrimination Act 1977 (NSW).
[11] Anti-Discrimination Act 1977 (NSW) s 38.
[12] Above n 9.
