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Part 1—Preliminary

Part 1 Preliminary

   

1   Short title

                   This Act is the Australian Bill of Rights Act 2019 .

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3   Objects

                   The objects of this Act are:

                     (a)  to promote universal respect for, and observance of, human rights and fundamental freedoms for all persons without discrimination; and

                     (b)  to that end, to enact an Australian Bill of Rights giving effect to certain provisions of:

                              (i)  the International Covenant on Civil and Political Rights done at New York on 16 December 1966; and

                             (ii)  the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966; and

                            (iii)  the Convention on the Rights of the Child done at New York on 20 November 1989; and

                            (iv)  the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment done at New York on 10 December 1984;

                            being guided by:

                             (v)  the Declaration on the Rights of Mentally Retarded Persons; and

                            (vi)  the Declaration on the Rights of Disabled Persons; and

                           (vii)  the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief; and

                     (c)  to ensure that any person whose rights or freedoms as set out in the Australian Bill of Rights are infringed by or under any law in relation to which that Bill of Rights operates has an effective remedy; and

                     (d)  to promote, enhance and secure, as paramount objectives, the freedom and dignity of the human person, equality of opportunity for all persons and full and free participation by all Australians in public affairs and public debate.

Note 1:       The International Covenant on Civil and Political Rights is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

Note 2:       The International Covenant on Economic, Social and Cultural Rights is in Australian Treaty Series 1976 No. 5 ([1976] ATS 5) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

Note 3:       The Convention on the Rights of the Child is in Australian Treaty Series 1991 No. 4 ([1991] ATS 4) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

Note 4:       The Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ([1989] ATS 21) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

4   Definitions

             (1)  In this Act:

act means an act done:

                     (a)  by or on behalf of the Commonwealth, a State or a Territory; or

                     (b)  by or on behalf of an authority of the Commonwealth, of a State or of a Territory;

being an act done:

                     (c)  in relation to an Australian citizen—within or outside Australia; or

                     (d)  in any other case—within Australia.

Australia , when used in a geographical sense, includes the external Territories.

Australian Capital Territory enactment means an enactment of the Australian Capital Territory, within the meaning of the Australian Capital Territory (Self-Government) Act 1988 , or an instrument made under such an enactment.

authority means:

                     (a)  in relation to the Commonwealth:

                              (i)  a body (whether incorporated or unincorporated) established for a purpose of the Commonwealth by or under a Commonwealth enactment; or

                             (ii)  an incorporated company over which the Commonwealth is in a position to exercise control; or

                            (iii)  a person holding or performing the duties of an office or appointment established or made under a Commonwealth enactment or by the Governor-General or a Minister of State of the Commonwealth (not being an office or appointment referred to in subparagraph (c) (iii)); or

                            (iv)  a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the Commonwealth for the purposes of this Act; or

                     (b)  in relation to a State:

                              (i)  a body (whether incorporated or unincorporated) established for a purpose of the State by or under an enactment of the State; or

                             (ii)  an incorporated company over which the State is in a position to exercise control; or

                            (iii)  a person holding or performing the duties of an office or appointment established or made under an enactment, or by the Governor or a Minister, of the State; or

                            (iv)  a local government body in the State; or

                             (v)  a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the State for the purposes of this Act; or

                     (c)  in relation to a Territory:

                              (i)  a body (whether incorporated or unincorporated) established for a purpose of the Territory by or under a Commonwealth enactment or an enactment of the Territory; or

                             (ii)  an incorporated company over which the Administration of the Territory is in a position to exercise control; or

                            (iii)  a person holding or performing the duties of an office or appointment established or made under an enactment of the Territory or by the Administrator of a Territory; or

                            (iv)  a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the Territory for the purposes of this Act.

Bill of Rights means the Australian Bill of Rights set out in section 19.

Commission means the Australian Human Rights Commission established by the Australian Human Rights Commission Act 1986 .

Commonwealth enactment means an Act or an instrument (other than a Territory enactment) made under an Act, and includes any other legislation or rule of the common law applied (otherwise than by virtue of the Commonwealth Places (Application of Laws) Act 1970 ) as a law of the Commonwealth, to the extent that it operates as such a law.

enactment means a Commonwealth enactment, a State enactment or a Territory enactment.

infringe includes abrogate and abridge.

instrument includes a rule, regulation or by-law.

law means a law of the Commonwealth, a law of a Territory or a law of a State.

law of a State means any law in force in a State, including a rule of the common law but not including a law of the Commonwealth.

law of a Territory means any law in force in a Territory, including a rule of the common law but not including a law of the Commonwealth.

law of the Commonwealth means:

                     (a)  a Commonwealth enactment; or

                     (b)  any other law (other than a rule of the common law) in force throughout Australia; or

                     (c)  any rule of the common law as it has effect in relation to or for the purposes of the operation of a Commonwealth enactment or a law referred to in paragraph (b).

Minister means:

                     (a)  in relation to a State—a Minister of the Crown of the State; or

                     (b)  in relation to the Australian Capital Territory and the Northern Territory—a Minister of that Territory.

Northern Territory enactment means an enactment of the Northern Territory within the meaning of the Northern Territory (Self-Government) Act 1978 or an instrument made under such an enactment.

Parliament , in relation to the Australian Capital Territory, means the Legislative Assembly of the Australian Capital Territory, and in relation to the Northern Territory, means the Legislative Assembly of the Northern Territory.

person includes an individual or group of persons, depending on the context.

practice means a practice engaged in:

                     (a)  by or on behalf of the Commonwealth, a State or a Territory; or

                     (b)  by or on behalf of an authority of the Commonwealth, of a State or of a Territory;

being a practice engaged in:

                     (c)  in relation to an Australian citizen—within or outside Australia; or

                     (d)  in any other case—within Australia.

President means the President of the Commission.

proposed enactment means:

                     (a)  a proposed law introduced into the Parliament of the Commonwealth or the legislature of a Territory; or

                     (b)  a proposed law prepared on behalf of:

                              (i)  the Government of the Commonwealth or the Administration of a Territory; or

                             (ii)  a Minister of State of the Commonwealth; or

                            (iii)  a body established by law that has the function of recommending proposed laws of the Commonwealth or of a Territory; or

                     (c)  a proposed State enactment; or

                     (d)  an instrument proposed to be made under a Commonwealth enactment or under a Territory enactment.

proposed State enactment means:

                     (a)  a proposed law introduced into the Parliament of a State; or

                     (b)  a proposed law prepared on behalf of:

                              (i)  the Government of a State; or

                             (ii)  a Minister of the State; or

                            (iii)  a body established by law that has the function of recommending proposed laws of a State; or

                     (c)  an instrument proposed to be made under a State enactment.

responsible Minister means:

                     (a)  in relation to a Commonwealth enactment, a Territory enactment or a proposed enactment (other than a proposed State enactment)—the Minister of State of the Commonwealth responsible for the administration of the matter to which the enactment or proposed enactment relates; or

                     (b)  in relation to a State enactment or a proposed State enactment—the Minister of the State responsible for the administration of the matter to which the enactment or proposed enactment relates; or

                     (c)  in relation to an act done or practice engaged in by or on behalf of the Commonwealth or a Territory or by or on behalf of an authority of the Commonwealth or of a Territory—the Minister of State of the Commonwealth responsible for the administration of the matter in connection with which the act was done or the practice was engaged in; or

                     (d)  in relation to an act done or practice engaged in by or on behalf of a State or by or on behalf of an authority of a State—the Minister of the State responsible for the administration of the matter in connection with which the act was done or the practice was engaged in.

State includes the Australian Capital Territory and the Northern Territory.

State enactment means a State Act or an instrument made under a State Act and includes an Australian Capital Territory enactment and a Northern Territory enactment.

suit includes any action or original proceeding between parties.

Territory does not include the Australian Capital Territory or the Northern Territory.

Territory Act means an Act passed by a legislature of a Territory and duly assented to.

Territory enactment means:

                     (a)  a Territory Act; or

                     (b)  an Ordinance of a Territory; or

                     (c)  an instrument made under such an Act or Ordinance; or

                     (d)  any other legislation or rule of the common law applied as a law of a Territory, to the extent that it operates as such a law; or

                     (e)  an instrument made under legislation referred to in paragraph (d).

             (2)  In this Act, a reference to the Governor of a State, in relation to the Northern Territory, means a reference to the Administrator of the Northern Territory.

             (3)  In this Act:

                     (a)  a reference to, or to the doing of, an act includes a reference to a refusal or failure to do an act; and

                     (b)  a reference, in relation to the doing of an act or the engaging in of a practice, to the person who did the act or engaged in the practice will, in the case of an act done or practice engaged in by an unincorporated body of persons, be read as a reference to that body.

             (4)  Subject to subsection (5), a law will, for the purposes of this Act, be taken to be inconsistent with the Bill of Rights if it:

                     (a)  infringes, or authorises the infringement of, a right or freedom set out in the Bill of Rights; or

                     (b)  makes, or authorises the making of, a provision that according to the Bill of Rights, is not to be made by any law.

             (5)  Where a law:

                     (a)  promotes, enhances or secures a right or freedom set out in the Bill of Rights, but infringes, or authorises the infringement of, another right or freedom set out in the Bill of Rights; or

                     (b)  promotes, enhances or secures for a person a right or freedom set out in the Bill of Rights, but, in relation to another person, infringes, or authorises the infringement of, a right or freedom set out in the Bill of Rights;

it is the intention of the Parliament that the law will not be determined to be inconsistent with the Bill of Rights unless such a determination would further the objects of this Act, and in particular the paramount objectives referred to in paragraph 3(d), to a greater extent than a determination that the law is not inconsistent with the Bill of Rights.

             (6)  A reference in this Act to a right or freedom set out in the Bill of Rights is a reference to such a right or freedom limited only as permitted by Article 3 of the Bill of Rights.

             (7)  A reference in this Act to the date on which an enactment other than this Act came into force will, in the case of an enactment different provisions of which came into force on different dates, be read as a reference to the date on which the provision concerned came into force.

             (8)  For the purposes of this Act, an Act will be taken to have been enacted at the time when it receives the Royal Assent.

             (9)  A reference in this Act to prejudice to the security, defence or international relations of Australia includes a reference to any such prejudice that might result from the divulging of information or matters communicated in confidence by or on behalf of the government of a foreign country, an authority of a government of a foreign country or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

5   Interpretation of Bill of Rights

             (1)  For the purposes of the interpretation of the Bill of Rights, each Article of the Bill of Rights is taken to be a section of this Act.

             (2)  Except as expressly provided in this Act, the Bill of Rights may not be interpreted so as to limit or adversely affect the rights of any person.

             (3)  The Bill of Rights may not be interpreted so as to adversely affect the rights particular to Aboriginal and Torres Strait Islander people.

6   Extension to external Territories

                   The Act extends to every external Territory.

7   Extent to which Act binds the Crown

             (1)  This Act binds the Crown in each of its capacities.

             (2)  This Act does not make the Crown liable to be prosecuted for an offence.

8   Act not to apply so as to exceed Commonwealth power

             (1)  Unless the contrary intention appears, if a provision of this Act:

                     (a)  would, apart from this section, have an application (an invalid application ) in relation to:

                              (i)  one or more particular persons, things, matters, places, circumstances or cases; or

                             (ii)  one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

                            because of which the provision exceeds the Commonwealth’s legislative power; and

                     (b)  also has at least one application (a valid application ) in relation to:

                              (i)  one or more particular persons, things, matters, places, circumstances or cases; or

                             (ii)  one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

                            that, if it were the provision’s only application, would be within the Commonwealth’s legislative power;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

             (2)  Despite subsection (1), the provision is not to have a particular valid application if:

                     (a)  apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

                     (b)  the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

             (3)  Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

             (4)  This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

9   Acquisition of property

                   This Act, or any instrument made under this Act, does not apply to the extent (if any) that the operation of this Act or the instrument would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).