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Australian Bill of Rights Bill 2001
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OF THE COMMONWEALTH OF AUSTRALIA
Bill home page
OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN BILL OF RIGHTS BILL 2001
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).
Specific Explanation of certain provisions of the Bill
Clause 3 - Objects
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.
Clause 4 - Interpretation
Some of note are:
“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 - Application of Bill of Rights
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.
Clause 9 — Interpretation of legislation
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.
Clause 10 — No rights of action or criminal liability under Bill of Rights
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.
Clause 11 — Functions of Human Rights and Equal Opportunity Commission
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.
Clause 12 - Performance of the Commission in relation to Bill of Rights
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.
Clause 13 - Complaints and redress for infringement of rights or freedoms
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:
â¢ the status quo, as it existed immediately before the complaint was lodged; or
â¢ 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:
â¢ an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
â¢ 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;
â¢ an order requiring a respondent to employ or re-employ an applicant;
â¢ 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;
â¢ an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
â¢ 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”.