Effectiveness of rights protection in Australia

Rights in Australia are protected in various ways, not simply through the Constitution. 

Constitutional Rights

Australia, uniquely amongst developed nations with liberal democracies, does not have a Bill of Rights. However, there are some legal protections of rights in the Constitution. These include:

  • The five express rights (s.51(xxxi), s.80, s.92, s.116, s.117)
  • The implied right to freedom of communication on political matters
  • The structural protections: representative government, responsible government, separation of powers

Other avenues of rights protection

Rights are also protected at federal level through:

  • Common law: laws made by judges can shape the legal rights of Australians
  • Legislation: certain parliament-made laws act to protect specific rights of Australians e.g. Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, Age Discrimination Act 1996
  • Australian Human Rights Commission: This Commission was established in 1986 and has the power to and role of monitoring, protecting and promoting human rights in Australia.1

State/territory level

Victoria and ACT are the only two states or territories to have legislative bills of rights. Victoria passed the Charter of Human Rights and Responsibilities Act in 2006, which grants Victorians twenty basic rights.2

ACT protects its citizens’ rights under the Human Rights Act 2004.3

Effectiveness of rights protection under the Australian Constitution

When examining the effectiveness of protection of human rights, students generally consider:

  1. How rights are protected
  • Some rights are entrenched (e.g. express rights)
  • Australia has no Bill of Rights
  1. Scope of rights protection
  • Only five express rights and one implied right are given
  • While some of these rights are seen as fundamental rights (e.g. freedom of religion), others are fairly narrow and obscure (e.g. acquisition of property on just terms)
  1. Power of rights protection
  • These rights are fully enforceable and can override conflicting legislation

See also:

Constitutional protection of rights

Comparison of rights protection in Australia to other countries

  1. 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  

  2. Charter of Human Rights and Responsibilities Act 2006, http://www.austlii.edu.au/au/legis/vic/consol_act/cohrara2006433/ ; Victorian Equal Opportunity & Human Rights Commission, Rights under the Charter,  http://www.humanrightscommission.vic.gov.au/index.php/the-charter/rights-under-the-charter   

  3. Human Rights Act 2004, http://www.austlii.edu.au/au/legis/act/consol_act/hra2004148/