Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1998-1999-2000-2001
ISBN: 0642 468893
The purpose of the Bill is to give effect to certain provisions of the
International Covenant on Civil and Political Rights, the International Covenant
on Economic, Social and Cultural Rights, and other such international treaties
to which Australia is a signatory, by enacting an Australian Bill of Rights,
intended to protect all persons in Australia against infringements of their
fundamental civil and political rights and freedoms.
The Bill has several
salient features as follows:
(a) It is intended to bind the Crown in right of
the Commonwealth States and Territories but not so as to make the Crown liable
for an offence
(b) It will apply to the acts done by or on behalf of the
Commonwealth, a State or a Territory
(c) An authority of a Commonwealth State
or Territory includes a body established for the purpose of the Commonwealth
State or Territory
(d) The objects clause is a broad ranging statement for
the purposes of interpreting the purposes and intention of the
bill.
(e) Inconsistent Acts whether made before or after the passing of the
Bill will have no force or effect to the extent of any inconsistency unless
there is an express declaration to that effect
(f) Any declaration that an
Act is to have effect despite the Bill of Rights Bill can only be in force for 2
years or earlier if specified.
(g) Individual causes of action against other
individuals are not possible nor is any person liable in any criminal
proceedings.
(h) The Human Rights and Equal Opportunity Commission (HREOC)
has powers and functions in relation to any act or practice that may infringe a
right or freedom set out in the Bill of Rights to inquires and where appropriate
to endeavour by conciliation, to effect a settlement.
(i) The powers and
duties of HREOC set out in Part II, Division 3 of the Human Rights and Equal
Opportunity Commission Act 1986 (HREOC Act) are extended to the
rights and freedoms set out in the Bill of Rights. Part II Division 3 allows
HREOC to perform functions when requested by the Minister, when a complaint has
been made and when it appears to HREOC to be desirable to do so. These functions
include a power to inquire, to obtain information and documents, to examine
witnesses and make reports with recommendations.
(j) Proposed section 13
allows for written complaints to be lodged with HREOC. Any person may apply for
an interim injunction after a complaint has been lodged.
(k) Part IIB of the
HREOC Act applies to a complaint that has been lodged. Part IIB, Divisions 1 and
2, set out the processes and procedures of a complaint whereby the President can
attempt to conciliate. In the event that this process is not successful,
applications can be made to court.
(l) For the purposes of lodging a
compliant, ‘unlawful discrimination’ under the HREOC Act is taken to
include infringement of a right or freedom as set out in the Bill of
Rights.
(m) The Federal Court and the Federal Magistrates Court have
concurrent jurisdiction in respect of matters arising under that Part of this
Bill (Part 3).
The objects are a clear statement of the intention of the Bill. Subclause
3(b) specifically refers to certain Covenants, Conventions and Declarations from
which the Bill attempts to give effect to certain provisions. The Bill also
attempts to ensure that persons whose rights and freedoms are infringed by law
have an effective remedy (that is to ensure an effective remedy to any person
whose rights or freedoms as set out in the Bill of Rights are infringed by or
under any law to which the Bill of Rights applies). The international
instruments referred to are in the main attached in the Schedules to the
Human Rights and Equal Opportunity Act 1986 and the Industrial
Relations Act 1988. Others are instruments that have been signed or ratified
by Australia.
“enactment” is defined in respect of the Commonwealth, State
and all Territory jurisdictions to include instruments, which are in turn
defined to include rules, regulations and by-laws. Those definitions are
intended to cover, in particular, local government rules and by-laws.
“act” extends to acts by the Commonwealth, a State or a
Territory, or by an authority of the Commonwealth, a State or a Territory. The
effect, consistent with the concept that a Bill of Rights governs relations
between the individual and the State, is that only governmental acts are covered
by the Bill, not acts by private individuals or corporations. As far as
Australian citizens are concerned, the acts may be done anywhere by Australian
Governments, but in the case of non-citizens they must be done in Australia.
“practice” is defined similarly to “act” such
that it includes only governmental practices and, in respect of Australian
citizens, includes practices engaged in anywhere but, in respect of
non-citizens, includes only practices engaged in
Australia.
“person” is defined in respect of
the Acts Interpretation Act 1901, which establishes that
“expressions used to denote persons generally
(such as “person”, “party”, “someone”,
“anyone”, “no-one”, “one”,
“another” and “whoever”), include a body politic or
corporate as well as an individual”. This is separate to
“individual”, which is defined as
“a natural person”.
Sub-clause 4(4) sets out the
circumstances in which a law shall be taken to be in inconsistent with the Bill
of Rights.
Sub-clause 4(5) makes special provision for cases of
inconsistencies between guaranteed rights (for instance, between free speech and
privacy). In such situations the operation of a law may simultaneously promote
one guarantee in the Bill of Rights while infringing or limiting another. To
determine whether such a law is inconsistent with the Bill of Rights, the courts
will sometimes find it necessary, in effect, to strike a balance between the
inconsistent rights and freedoms involved in the context of the particular law
and of the factual situation. The intended effect of sub-clause (5) is that, in
striking such a balance, the courts will be guided by the objects set out in
clause 3 of the Bill and, in particular, by the “paramount
objectives”.
Sub-clause 4(6) ensures that the rights secured are
those set out in the Bill of Rights, subject only to the limitations permitted
by Article 3 of the Bill of Rights.
Clause 5 – Interpretation of
Bill of Rights
Clause 5 requires each Article of the Bill of Rights
(set out in clause 17 of the Bill) to be treated as a section of the Australian
Bill of Rights Act.
Clause 7 – Extent to which Act binds the
Crown
Sub clause 7(1) provides that the Act binds the Crown in right
of the Commonwealth, States and the Act and the NT and of Norfolk Island.
Sub-clause 7(2) provides that nothing in the Act renders the Crown liable to be
prosecuted for an offence.
Clause 8, subject to the “sunrise” provision contained in
sub-clause 8(2), provides that where an Act enacted before, on or after the Bill
of Rights is inconsistent with the Bill of Rights, does not, to the extent of
the inconsistency, does not have any force or effect. The key to the operation
of clause 8 is inconsistency with the Bill of Rights. “Inconsistent”
is defined in sub-clauses 4(4) and (5). It should also be noted that an Act is
to be regarded as inconsistent with the Bill of Rights only after it has been
construed under sub-clause 9(1), that is, only after an attempt has been made to
construe the Act in a way that would result in the Act not being inconsistent
with the Bill of Rights.
To the extent of the Parliament's power to do
so, clause 8 is intended to prevent any violation of human rights by
Commonwealth, State and Territory laws. In order to override the Bill of Rights,
a law will have to state expressly that it is intended to do so. Thus, while a
future Parliament may derogate from the ABR, it will have to do so openly and
deliberately’. Any such derogation would have to be exposed to full
parliamentary and public scrutiny.
The fundamental idea underlying
subclauses 8 (2) and (3) is that two inconsistent enactments of the same
Parliament can both be valid but, to the extent of the inconsistency, only one
can be operative; and that Parliament may therefore give a direction as to which
of the two inconsistent provisions shall be operative in a particular case. This
is what the sub-clauses are intended to do.
Sub-clause 8(2) provides for
the case where a later law does expressly declare that its provisions, insofar
as they are inconsistent with the Bill of Rights, shall prevail. In such a case,
the intention is that both the Bill of Rights and the later law will be valid
laws of the Commonwealth, but that the later law shall be operative and the Bill
of Rights inoperative only to the extent of the inconsistency and only for so
long as the inconsistency persists.
Subclause 8(3) provides that a
declaration will cease after 2 years or such earlier date that is specified in
the declaration. However, Parliaments can choose to re-enact such a declaration
at this time under subsection 8(4).
Subclause 8(5) has the effect that
this further declaration will also cease to have effect after 2 years or earlier
if specified in the declaration. This means then that if the inconsistency has
not been remedied before this time, then the Bill of Rights Act will prevail to
the extent of the inconsistency.
Sub-clause 9(1) provides, in effect, that the Bill of Rights is to
operate in the first instance as a “rule of construction”. This
means that, in construing any Commonwealth, State or Territory law, the courts
are to seek an interpretation that does not inconsistency with a right or
freedom in the Bill of Rights.
Sub-clause 9(2) makes clear that a similar
approach is to be applied when interpreting the terms in which power is given
for the making of Commonwealth, State or Territory statutory instruments.
The Bill of Rights is intended as a shield, not a sword. Clause 10 makes
it clear that no individual be sued or found liable in respect of the doing of
an act that infringes a right of freedom set out in the Bill of Rights. Persons
can lodge a complaint in relation to the actions of government authorities as
defined, but not in relation to the actions of other individuals.
One
significant difference between 10(1) and 10(2) is the use of
“individual” for civil proceedings, and “person” for
criminal proceedings. This difference relates to definitions in the Acts
Interpretation Act 1901, and has been explained in detail in the Interpretations
section of this Explanatory Memorandum.
This clause is to be read together with the Human Rights and Equal
Opportunity Commission Act 1986. The purpose is to add to the functions of
the Commission by conferring on it functions relating to the Bill of
Rights.
Paragraph 25(a) empowers the Commission to inquire into any act
or practice of any governmental agency or authority (Commonwealth, State or
Territory) which may infringe the Bill of Rights. (See the definitions of
“act”, “practice” and “authority” in
sub-clause 4(1)). In the course of such an inquiry the Commission may endeavour,
by conciliation, to effect a settlement" if it considers such a procedure
appropriate. If not, or if an unsuccessful attempt at settlement has been made,
then in any case where the Commission concludes that the Bill of Rights has been
infringed, it must report to the Minister for the time being administering the
Australian Bill of Rights legislation.
Paragraphs 25(b) and (c) are
concerned with promotional, research and educational functions.
Paragraph
25(d) empowers the Commission to examine enactments and, when requested,
proposed enactments with a view to identifying possible inconsistencies with the
Bill of Rights, and to report to the Minister the results of any such
examination.
Paragraph 25(e) empowers the Commission to report to the
Minister on Commonwealth laws that should be passed, or Commonwealth action that
should be taken, on matters pertaining to the Bill of Rights. Such reports may
be made at the request of the Minister or on the Commission's initiative.
Subclause 12(1) extends the powers and duties of the Commission under
Part II, Division 3 of the Human Rights and Equal Opportunity Act 1986 to
apply to the rights and freedoms under the Bill of Rights. This in effect,
brings in the powers to obtain information and documents, to examine witnesses
and other procedural matters to the Bill of Rights Bill, without replicating
such functions in the Bill. Subclause 12(2) requires the Commission to tell the
relevant Minister of any proposed inquiry. This does not give the Minister any
ability to prevent such an inquiry occurring.
Subclause 13(1) specifies that a written complaint can be made to the
Commission alleging and infringement of a right or freedom set out in the Bill
of Rights.
Subclause 13(2) replicates section 46PP of the Human Rights
and Equal Opportunity Commission Act 1986 to make clear that an application
can be made in Court any time after a complaint has been lodged for an interim
injunction. This is to maintain the status quo pending further consideration of
the matter by the Commission, or future court proceedings.
By virtue of
other provisions in the HREOC ACT, the Court is also vested with a power to
grant injunctions in relation to proceedings that are already before it. This
provision sets out the basis on which the Federal Court may grant an interim
injunction after a complaint has been lodged with HREOC. Such an injunction may
be granted to maintain:
• the status quo, as it existed immediately before the complaint was lodged; or
• the rights of any complainant, respondent or affected person.
It
also sets out who may make an application for an interim injunction. It
provides that such an application may be made by HREOC, a complainant, a
respondent or an affected person.
While the decision whether or not to
apply for an interim injunction is intentionally left to the discretion of
HREOC, it is envisaged that the discretion will only be exercised in limited
circumstances, for example where a complaint raises issues of such public
importance that HREOC is justified in taking action to protect the relative
positions of the parties pending the determination of those
issues.
Subclause 13(3) expressly applies Part IIB of HREOC ACT to a
complaint made under clause 13. The intention is that all the relevant powers,
procedures and other mechanisms that apply to lodging and dealing with a
complaint both by the President, and the courts can apply here. This is achieved
by deeming ‘unlawful discrimination’ which is the expression used in
the HREOC ACT, to include ‘infringement of a right or freedom’ in
the Bill of Rights (subclause 13(4)).
So for example, the Court may make
such orders (including a declaration of right) as it thinks fit, including any
of the following orders or orders to similar effect:
• an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
• an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant. It is envisaged that this paragraph would permit the Court to order, for example, that a respondent make an apology to an applicant;
• an order requiring a respondent to employ or re-employ an applicant;
• an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
• an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
• an order declaring that it would be inappropriate for any further
action to be taken in the matter.
These are set out in section 46PO of the
HREOC ACT. This drafting mechanism of incorporating the provisions of the HREOC
ACT is a simplified measure to keep this Bill in conformity with existing
procedures and powers in the anti discrimination and human rights legal arena.
PART 5—DECLARATION OF
RIGHTS
Clause 17 – Australian Bill of Rights
The Australian Bill of Rights (ABR) is set out in clause 17 of the
Bill. In addition to its legal effects, it is intended to operate as an
inspirational charter for the Australian community. It is therefore drafted, so
far as is possible, in clear and simple language. It consists of 43 Articles
arranged in six Divisions, which are the major substantive provisions of the
Bill.
DIVISION 1 – GUARANTEE OF RIGHTS AND
FREEDOMS
Article 1—Entitlement to rights and freedoms
without distinction
Article 1 of the ABR expresses the fundamental
principle that no individual or class of persons is above or outside the
framework of the law, that everyone is entitled to its impartial application,
and that the fundamental rights and freedoms laid down in the ABR are to be
equally enjoyed by everyone. Article 1(1) is based upon the terms of Article
2(1) of the ICCPR, and on the reference to “equality before the law”
in ICCPR Article 26. Without in any way limiting Article 1(1), Article 1(2)
makes explicit the equal right of men and women to the enjoyment of human rights
and fundamental freedoms as found in Article 3 of the ICCPR.
Article
2—Effect of Bill of Rights on existing rights and
freedoms
Article 2 ensures the continuance of rights or freedoms that
exist under, or are recognised by, any other law. The Article is intended to
include statutory rights and the common law, and is so drafted to allow for
adjustment to future social developments. Article 2 implements the requirement
set out by Article 5(2) of the ICCPR which provides that a country is not
permitted to restrict or destroy existing rights and freedoms.
Article
3—Permissible limitations
Article 3 is a limitation or
“derogation” clause of general application. Some of the most
important rights set out in the ICCPR and ICESCR (“the Covenants”)
are qualified by detailed limitation provisions permitting a number of
exceptions and restrictions. The various justifications for limiting rights or
freedoms set out in the Covenants include such important matters as the
protection of national security, public safety, public order and public health.
Carrying some or all of the Covenants’ qualifications into the relevant
ABR Articles is clearly necessary. However, in order to produce an inspirational
charter of rights in a simple declaratory style, the drafting technique of
consolidating the qualifications into one Article has been used in preference to
attaching detailed qualifications to individual Articles. Many other rights in
the Covenants are stated in apparently unqualified terms. Indeed, ICCPR Article
4 provides that there should be "no derogation" from certain specified rights
and freedoms even “in time of public emergency which threatens the life of
the nation”. Whether or not all the rights which the Covenants state in
unqualified terms are regarded as morally or philosophically absolute, their
legal enforcement cannot, in the nature of legal processes, be absolute. The ABR
Bill will provide for legislative protection of human rights through the ABR
itself; for judicial enforcement through interpretation and application of the
ABR; and for administrative measures of investigation and conciliation by the
Human Rights and Equal Opportunity Commission. In all these processes a flexible
and practical approach is required.
A third group of provisions in the
Covenants contain inbuilt qualifications: for example, ICCPR Article 17 says
“no one shall be subjected to arbitrary or unlawful interference”.
Such qualifications are usually reproduced in the ABR; but because of their
generality some further guide to the kind of restrictions that are acceptable is
deemed necessary.
For all three types of provision in the Covenants,
Article 3 of the ABR adopts a similar solution to that adopted in the 1982
Canadian Charter of Rights and Freedoms. All the rights and freedoms of the ABR
are declared to be “subject only to such reasonable limitations prescribed
by law as can be demonstrably justified in a free and democratic society”.
Article 3 thus allows many of the particular rights in the ABR (which are not
themselves absolute in the Covenants) to be limited in the interests of the
community and other individuals.
It should be noted that this wording
imposes a number of restrictions on the permissible limitations of
“rights”—
• they must be “reasonable”;
• they may limit, but cannot wholly deny, the specifically guaranteed
rights (Attorney-General of Quebec v Quebec Association of Protestant School
Boards (1984) 10 D.L.R. (4th) 321 (S.C.C.));
• they must be
“prescribed by law” : a specific law is required;
• the
justification must be “demonstrable”: a court must be satisfied that
the limits are justified; and
• the justification must be compatible
with the basic values of “a free and democratic
society”.
Article 3(2) ensures that no limitation may restrict a
right or freedom set out in the Bill of Rights to a greater extent than is
permitted by the Covenants’ relevant provision. On the basis of the test
provided in Article 3(1), however, it is clear that any permissible limitation
on an ABR right need not necessarily restrict that right to the full extent
permitted by the Covenants.
Division 2 – Fundamental
Freedoms
Article 4 – Freedom of
Expression
Article 4(1) implements ICCPR Article 19(2) which is a
broad guarantee of freedom of expression and information. The ICCPR Article
clearly covers freedom of the press and the media and this has been made
explicit in Article 4(1). Certain limitations to Article 4(1) are permitted by
Article 3. Article 4(2) is derived from ICCPR Article 20(2) and serves as a
protection against any law authorising the expression of information that
advocates national, racial or religious hatred.
Article 5 –
Freedom of thought and conscience
Article 5 implements those parts of
ICCPR Articles 18 and 19 concerned with freedom of thought, conscience and
opinion.
Article 6 —Freedom to have or adopt a religion or
belief
Article 6 guarantees the right to have or to adopt a religion
or belief without coercion and to manifest that religion or belief, implementing
those parts of ICCPR Articles 18(1) and 18(2) which are concerned with freedom
of religion. ICCPR Article 18(3) permits a range of restrictions on the freedom
to manifest one's religion; limitations are permitted in the ABR by Article 3.
Article 7 – Right of peaceful assembly
Article 7
implements the guarantee in ICCPR Articles 21 and 22 of freedom of assembly.
Certain limitations are permitted by the ICCPR provision; limitations are
permitted in the ABR by Article 3.
Article 8 – Freedom of
association
Article 8 implements the guarantee in ICCPR Article 22 of
freedom of association, including the right to form and join trade unions for
the protection of one's own interests. ICCPR Article 22 and ICESCR Article 8
permit restrictions of trade union rights, but limits the permissible
restrictions by reference to International Labor Organisation Convention No. 87.
Article 8 of the ABR makes no express provision for restrictions. Restrictions
are permitted, however, by Article 3(1) and the effect of Article 3(2) is to
restrict the ability to limit Article 8 in the same way as does the ICCPR.
Following the ICCPR, trade union rights are guaranteed by the ABR only to a
“person” and “for the protection of that person's
interests”. In other jurisdictions these words have been broadly
construed. On the one hand, they ensure that workers have a right to join unions
of their choice; on the other hand, they do not invalidate registration and
deregistration provisions.
Division 3 – Equality
Rights
Article 9 —Equal Protection of the
Law
Article 9 implements the guarantee of “equal protection of
the law” contained in Article 26 of the ICCPR. The travaux preparatoires
to the ICCPR indicate that the guarantee of “equal protection of the
law” deals with the content of the law, that is, that the substance of the
law should not be discriminatory. This contrasts with the requirement that the
application of the law should not be discriminatory, which is the right to
“equality before the law” guaranteed by Article 1. By separating the
two freedoms into different Articles, it is intended to avoid the restrictive
approach taken in respect of section l(b) of the Canadian Bill of Rights and to
adopt instead the broader approach favoured in respect of the Fourteenth
Amendment to the United States Constitution.
The guarantee of equality
enshrined in the phrase “equal protection of the law” has never,
however, been regarded as absolute. The usual interpretation is that everyone
should be treated alike except where discrimination can be justified on proper
grounds. The intention of the ABR is that Article 9, when read jointly with
Article 3(1), will provide some guidance in the difficult task of determining
which discriminations are legitimate. In the United States, the courts have
adopted different degrees of scrutiny depending upon the characteristic which
forms the basis of the discrimination. For example, discrimination on the basis
of race will only be permissible in the most compelling of circumstances;
whereas, discrimination on the basis of economic status may only have to be
rationally related to a legitimate governmental purpose to be permissible. The
United States jurisprudence, it is expected, would be a guide to the courts in
their consideration of cases involving discrimination.
The effective
protection against discrimination required by ICCPR Article 26 implicitly
permits a measure of “affirmative action” or “benign
discrimination”, that is, measures that are unequal in their current
application but which are designed to redress past inequalities or ensure future
equality. Article 9(2) of the ABR makes this explicit and also ensures that
nothing else in the ABR will affect "benign discrimination" provisions.
Article 10 – Rights of indigenous peoples
Article 10 establishes specific rights and responsibilities for
Australia’s indigenous peoples. These rights include the maintenance and
development of their particular cultural identities, and the right to claim
native title. Obviously such claims would need to follow existent processes.
While the ABR does not extend to specifying broad support to any and all such
claims, it does recognise that Aboriginal and Torres Strait Islander People are
Australia’s original inhabitants, and therefore have the right to put
forward claims for native title.
Article 10(c)&(d) attempt to address the
social and structural inequities that have existed since non-indigenous
occupation of Australian lands. This would be achieved through self-management
of indigenous affairs, while giving Aboriginal and Torres Strait Islander People
the right to obtain financial and technical assistance, as prescribed in Article
9(2) of this Bill.
Article 10(e) outlines the responsibility that Aboriginal
and Torres Strait Islander People have in preserving, respecting and promoting
their unique customs and culture.
Article 11 – Rights of
minority groups
Article 11 implements the protection of cultural,
religious and linguistic rights of minorities contained in ICCPR Article 27. The
particular rights guaranteed by Article 11 are guaranteed to a person belonging
to a minority group only in community with other members of the minority group
to which that person belongs.
Division 4 –Civil and democratic
rights
Article 12 – Right to life
Article 12(1)
implements ICCPR Article 6(1) on the deprivation of life. The right is contained
in a number of human rights instruments, including Article 3 UDHR, Section 7 of
the Canadian Charter of Rights and Freedoms and Section 8 of the New Zealand
Bill of Rights Act 1990.
Paragraphs 2, 4 and 5 of ICCPR Article 6 set out
detailed regulation of the permissible use of the death penalty. However,
paragraph 6 then provides: "Nothing in this article shall be invoked to delay or
... prevent the abolition of capital punishment". In the present state of the
law in Australia, to regulate capital punishment in the ABR might appear to
condone it: hence, consistently with paragraphs 6, the ABR does not implement
paragraphs 2, 4 and 5.
ICCPR Article 6(3) preserves obligations arising
from the Convention on the Prevention and Punishment of the Crime of Genocide.
This is not an appropriate matter for inclusion in Article 12. In any event, a
statute permitting genocide would never meet the Article 3 test of being
demonstrably justified in a free and democratic society.
Article 12(2)
on the right to bodily and psychological integrity is similar to Article 12(2)
of the South African Bill of Rights. Article 12(2) is not intended to modify the
existing laws on abortion in Australia. It is a confirmation of the general
belief in the right of the individual to determine what is in the best interests
of their psychological and physiological being.
Article 13 —
Liberty and security of person
Article 13 – the right to
liberty and security of person – derives from ICCPR Article 9(1). This
Article stipulates that the establishment of a law is the only reasonable
grounds for depriving a person of their liberty. This is limited by Article
13(2), which dictates that such a law cannot authorise this arrest, detention or
imprisonment to be of an arbitrary nature. Article 13(4) implements ICCPR
Article 11, that no one shall be imprisoned merely on the ground of inability to
fulfil a contractual obligation.
Article 14 – No torture or
inhuman treatment and no experimentation without consent
Article
14(1) and 14(2) prohibits torture and inhuman treatment, and medical
experimentation without consent, and implements ICCPR Article 7. The
implementation of this prohibition is essential because it is fundamental to a
general statement of human dignity.
Article 14(3) is the right of the
individual to refuse medical treatment “for themselves”. Article
14(3) relates to Article 6 of the ABR as it is intended to take account of a
person’s choice to adopt and manifest religious beliefs or practices.
Article 14(3) does not extend to making medical choices for others.
Article 15 – Slavery and servitude
Article 15
implements the prohibitions in ICCPR Article 8 of slavery and servitude, and of
forced or compulsory labour. As to the prohibition of forced or compulsory
labour, certain limitations are permitted by the ICCPR provision. In the ABR,
limitations are permitted by Article 3.
Article 16 – Right of
participation in public life
Article 16 implements ICCPR Article 25,
which establishes certain basic rights of citizenship—to participate in
public affairs “directly or through freely chosen representatives”;
to vote and to be elected at “genuine periodic elections”, by
“universal and equal suffrage” and by secret ballot; and to have
access “on general terms of equality” to “public
service”. The term “public service” may be ambiguous in
Australia and is therefore substituted with "public employment" in Article
16(c). This is to ensure that employment at all three levels of government, and
in government authorities, is covered. Otherwise the operative words of the
ICCPR Article are transcribed without change.
The ICCPR provision is to
operate "without unreasonable restrictions". In the ABR these words are omitted,
since reasonable restrictions are permitted by Article 3. Subject to such
restrictions and the Constitution, it is intended that the words
“universal and equal suffrage” would not normally limit the choice
of electoral methods (for example, proportional representation, preferential
voting, or ‘first past the post’), but would require compliance with
the formulae ‘one person, one vote’ and ‘one vote, one
value’.
Article 17 – Right to marry and to found a
family
Article 17 begins by reciting the broad social policy that
“the family is the natural and fundamental group unit of society and is
entitled to protection by society and the Commonwealth or State
Government” as in ICCPR Article 23(1). The right secured by Article 17(a)
is the right of every person of marriageable age to marry and found a family.
The phrase “found a family” implies the progeny of the union,
natural or adopted. The rights in this Article by themselves would not, for
example, give a non-citizen the right to enter or to remain in Australia.
Article 17(b) then goes on to implement this social policy in the right to marry
and found a family, and the requirement of free and full consent to marriage.
ICCPR Article 23(4) also requires “appropriate steps” to protect the
rights of spouses and children during marriage and after divorce. These
requirements are satisfied in the detailed provisions of the Family Law Act
1975.
Article 18 – Rights of the child
ICCPR Article
24(1) has two major concerns:
• the protection of children from the
various forms of prohibited discrimination (race, colour, sex etc.); and
• the recognition that children require “measures of protection
as are required by the child’s age”.
Accordingly, Article 18
seeks to ensure that children are not precluded from enjoying the rights and
freedoms embodied in the Bill of Rights simply because they are minors, and at
the same time recognises that they require special measures of protection
because they are minors. ICCPR Articles 24(2) and 24(3) create children's rights
to a name, nationality and registration of birth. Articles 18(b) and (c)
implement these requirements. Article 18(d) applies Article 10(3) of the ICESCR,
providing that children should be “protected from economic and social
exploitation”. Article 18(e) repeats the provisions of ICCPR Article 18(4)
by affirming respect for the liberty of parents and guardians to ensure the
religious and moral education of their children according to their own
convictions. This liberty of parents and guardians is to be balanced, having
regard to the child's age, with the child's own fundamental rights, and has
permissible limitations as set out in Article 3 of the ABR.
The word
“child” is not defined, as it is expected that courts will regard
the prevailing age of majority and the flexibility given by the introductory
recital in Article 18 as sufficient to determine the precise rights of young
persons in particular circumstances.
Article 19—Rights of
movement within Australia
Article 20—Right to enter
Australia
Article 21—Right to leave
Australia
Articles 19, 20, and 21 recognise rights of freedom of
movement and choice of residence; a right of any Australian citizen to enter
Australia; and a right of any person to leave Australia. These provisions
implement ICCPR Article 12.
The citizen's right to enter Australia is
unqualified in the ICCPR. Certain limitations of the other rights are permitted
by the ICCPR provision, and the ABR limitations are permitted by Article
3.
ICCPR Article 13 requires that aliens lawfully in Australia may not be
expelled except “in accordance with law”. Article 19(2) of the ABR
implements this requirement. The ICCPR provision also provides procedural
requirements including an opportunity for review, but these requirements do not
apply to national security cases. These procedural requirements are required by
the phrase in ABR Article 19(2) “on such grounds and in accordance with
such procedures as are established by law”. It is not appropriate to the
drafting style of the ABR to spell out in detail the procedural
requirements.
Division 5 – Economic and social
rights
Article 22 – Property
Article 22 is based on the notion expressed by Article 1(2) of the ICESCR
that asserts that individuals have the right to freely dispose of their natural
wealth and resources.
Article 22(1) recognises the individual’s right
to peaceful enjoyment of his or her possessions “except in the public
interest” and “subject to the conditions provided by law”. It
is based on Article 1 of the first protocol in the UK Human Rights Act 1998.
Article 22(2) constitutes a limitation to the right of Article 22(1) with
respect to the government’s right to control the use of property or to
secure the payment of taxes or other penalties.
Article 23 –
Standard of living
Article 23(1) recognises the basic right of every
person to an adequate standard of living. This right is modelled on Articles 9
and 11(1) of the ICESCR. The right includes some of the necessities for human
existence – the need for food, shelter, health services and social
security. This is extended in Article 23(2) to include the right of all people
to emergency medical treatment. Article 23(3) provides a duty to the
Commonwealth or State governments to take measures to “provide for the
progressive realisation of each of these rights”.
Article 24
– Right to live in a safe society
Article 24 recognises the
commonly accepted belief that all Australians and people in Australia have the
right to live in a safe society, free from exposure to crime and violence.
Similarly, Article 24 imposes a collective and individual responsibility to act
in a peaceful and nonviolent way, and therefore ensure that they are not
responsible for infringing other people’s rights as established in this
Article.
Article 25 – Right to adequate child
care
Article 25 embodies the requirement of Article 18(2) and 18(3)
of the Convention of the Rights of the Child that States must ensure that those
in a position of care of a child have the right of access to appropriate
child-care resources and facilities, while also having the responsibility to
ensure the child’s level of care.
Article 26 – Right to
education
Article 26 recognises the right of all individuals to
education. Article 26 implements Article 13 of the ICESCR. Article 13(3)
expresses the requirement that governments undertake to respect the liberty of
parents to ensure the religious and moral education of their children conforms
with their own beliefs. A similar provision is in Article 2 of the first
protocol of the UK Human Rights Act 1998.
Article 27 –
Work
Article 27(1) is modelled upon the provisions of Article 6(1) of
the ICESCR. It establishes that, together with the right to work, every person
must have the opportunity to gain “reasonable payment for work the person
freely chooses or accepts”.
Article 27(2) relates to the just and
favourable conditions of work as expressed by Article 7 of the ICESCR. It
concerns the guarantee of adequate remuneration, safe and healthy working
conditions, rest and leisure, reasonable limitation of working hours, and access
to paid (public) holidays.
Article 28 – Individual and
collective development
Article 28 implements Article 15 of the ICCPR,
and affirms that “every person has the right to participate in and
contribute to individual and collective economic, social and cultural
development.
Article 29 – Environment
Article 29
affirms the need, and right of all people for, the protection, conservation and
restoration of the ecological environment. This is similar to Section 24 of the
South African Bill of Rights. Article 29(1) is an acknowledgement that the
people of Australia recognise the inherent value of the natural environment and
that they have a right to a healthful environment. Article 29(2) recognises that
the government holds the primary responsibility for protecting, conserving and
restoring the natural environment, while also promoting justifiable economic and
social development.
Division 6 – Legal
Rights
Article 30 - Right to protection from arbitrary
interference
Article 30 implements the protection from arbitrary
interference in ICCPR Article 17. This Article protects a person from
“arbitrary or unlawful interference” with “privacy, family,
home and correspondence”, and also protects a person from “unlawful
attacks on honour and reputation”. While such rights are established in
other laws, it is important for them to be reaffirmed in this
charter.
Article 31 – Right to procedural
fairness
Article 31 affirms the right of the individual to have a
decision made in a way that “observes the rules of procedural
fairness”. The rules of procedural fairness are established in Article
31(2), and include the right to be a given a “reasonable opportunity to
present a case” before an impartial tribunal or authority.
Article 32 – Right to legal assistance
Article 32
provides for reasonable access to legal aid, and thus implements the similarly
qualified right in ICCPR Article 14(3d). Access to a legal representative is a
necessary principle of the Westminster judicial system.
Article 33
– Right to be informed of reasons for arrest and of
charges
Article 33 implements ICCPR Articles 9(2) and 14(3a) and
affirms a person’s right to be informed of the reasons for an arrest, and
to be informed promptly of any charges. While this Article does not detail a set
list of ‘rights’ that must be read to any person upon arrest like
the United States Bill of Rights, it does serve to ensure a person’s
freedom from arbitrary arrest as outlined in Article 13 of the ABR.
Article 34 – Right to consult with lawyer and to remain
silent
Article 34 protects a person’s right “to
communicate with counsel” and “not to be compelled ... to confess
guilt”, accorded to accused persons by ICCPR Articles 14(3)(b) and (g).
Article 34 incorporates an element from the United States Constitution
(Amendment 5) in stipulating an individual’s “right to remain
silent”.
Article 35 – Hearings, release and
trial
Article 35 implements ICCPR Article 9(3), while also attempting
to separate the three distinct rights that are involved: a prompt initial
hearing after arrest; a right to bail on reasonable terms (except for good
reasons); and a right to be tried within a reasonable time.
Article 36
– Right to test lawfulness of detention
Article 36 implements
the right under ICCPR Article 9(4) to test the lawfulness of any detention (for
example, by habeas corpus) and, where appropriate, to be released.
ICCPR
Article 9(5) envisages “an enforceable right to compensation” in
cases of wrongful arrest, and ICCPR Article 4(6) envisages a similar right in
cases of wrongful conviction. In Australia such matters are mostly dealt with by
the payment by government of ex gratia compensation. There are, in addition,
limited common law rights to damages. To create special enforceable rights to
damages would go beyond the conception of the ABR as “a
shield, not a sword” (see clause 10 of the ABR).
Article 37
– Presumption of innocence
Article 37 implements ICCPR Article
14(2): a person charged with a criminal offence is to be presumed innocent until
proved guilty according to law. The phrase “according to law” does
not permit the Parliament to take away the ultimate burden of the prosecutor to
prove guilt beyond a reasonable doubt (R v Appleby (1971) 3
C.C.C.(2d) 354 (S.C.C.); R v Russell (1971) 15 C.R.N.S. 289
(N.S.C.A.)).
Article 38 – Right to fair
hearing
Article 38 creates, for both civil and criminal cases, a
right “to a fair and public hearing by a competent, independent and
impartial tribunal”. This implements a guarantee in ICCPR Article 14(1).
The ICCPR provision also declares that all persons “shall be equal before
the courts and tribunals”. This requirement is sufficiently implemented by
the general provisions for equality before the law in Article 1 of the ABR.
Certain limitations are permitted by the ICCPR provision. In the ABR limitations
are permitted by Article 3.
Article 39 – Right to reasonable
standard of criminal procedure
Article 39 should be read with
Articles 33 to 35 above. Together these Articles implement a series of
“due process” rights relating to the conduct of investigations into
and trial of criminal offences required by ICCPR Article 14(3). A special effort
is made in this Article not only to create specific enforceable rights but also,
so far as possible, to group within the Article the rights in the chronological
order in which they would become relevant. For example, Article 39(c) states the
right to communicate with a lawyer; but Article 39(b) first ensures that a
person charged will be informed of the right to legal assistance.
Other rights set out in Article 39 (all based on ICCPR Article
14(3)) are the rights to adequate time and facilities to prepare a defence; to
be present at any trial and to conduct a defence; to examine prosecution
witnesses and have defence witnesses called and examined; to receive the free
assistance of an interpreter when needed; and to be protected against
self-incrimination. In Article 39(k), the words “against himself”
used in ICCPR Article 14(3)(g) have been omitted because, as the right only
applies to a person in relation to the offence with which that person is
charged, they are unnecessary. Further, in relation to self-incrimination, see
also Article 34.
ICCPR Article 14(4) requires a procedure for juveniles
which takes account of their age. This requirement is implemented in Article
39(l).
ICCPR Article 14(6) requires a person “to be compensated
according to law” for a miscarriage of justice. This has not been included
in the ABR as, when ratifying the treaty in 1980, Australia made a reservation
to ICCPR Article 14(6) in the following terms — “the Provision of
compensation for miscarriage of justice in the circumstances contemplated in
paragraph 6 of Article 14 may be by administrative procedures rather than
pursuant to specific legal provision”.
Article 40 – No
retrospective criminal offences or penalties
Article 40 prohibits the
creation of retrospective criminal offences, or a retrospective increase in
penalties, as established in ICCPR Article 15(1). It should be noted that in
both the ICCPR and the ABR the ban on retrospectivity applies only to criminal
offences and penalties.
Article 41 – Right of review of
conviction and sentence
Article 41 recognises a right to judicial
review of conviction and sentence (ICCPR Article 14(5)).
Article 42
– No trial or punishment for same offence
Article 42 prevents
“double jeopardy”. This is a long standing principle of criminal law
and it provides that once an accused person has been acquitted of an offence,
they cannot be tried for it again. The right is modelled on Article 14(7) of the
ICCPR.
Article 43 – Rights when deprived of
liberty
Article 43(1) implements rights in relation to deprivation of
liberty contained in ICCPR Article 10(1). Article 43(2) implements other
sections of ICCPR Article 10 requiring segregation of prisoners: accused persons
from those already convicted, and juvenile offenders from adults (with
appropriate treatment for juveniles). In the ICCPR the first of these
requirements is to operate "save in exceptional circumstances"; the second is
absolute. In both the ABR and ICCPR, this is to be achieved “so far as is
practicable”.