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Parliamentary Charter of Rights and Freedoms Bill 2001 [2008]

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The purpose of the Bill is to implement the International Covenant on Civil and Political Rights (“the Covenant”). It is intended to provide protection for all persons in Australia against violations of their fundamental civil and political rights by governments. This protection is sought by three principal means:


·           The Parliamentary Charter of Rights and Freedoms (“the Charter”) is to operate as a guide to the judicial interpretation of Commonwealth, State and Territory laws, so that as far as possible laws are construed in such a way as not to conflict with the Charter.


·           The Charter will have the force of law and will prevail over any inconsistent Commonwealth, State or Territory laws. The Charter will have a delayed operation of three years with respect to existing legislation. Commonwealth, State and Territory Parliaments will retain the power to override the Charter, but only by express legislative declarations to that effect.


·           The Human Rights and Equal Opportunity Commission will be empowered to investigate complaints about governmental acts or practices which may infringe the Charter. The Commission will also be empowered to report on Commonwealth, State or Territory laws (or proposed laws) which may infringe the Charter.



Clause 2 - Commencement

All clauses except clause 8 will come into operation on Royal Assent. Clause 8 will come into operation three years after Royal Assent. Clause 8 renders laws inconsistent with the Charter inoperative. The delayed commencement of this Clause will allow governments time to examine their laws for compliance with the Charter.


Clause 5 - Interpretation of Charter


Clause 5 requires each Article of the Charter (set out in the Schedule to the Bill) to be treated as a section of the Parliamentary Charter of Rights and Freedoms Act.


Clause 6 - Extent to which Act binds the Crown


Subclause 6(1) provides that the Act binds the Crown in right of the Commonwealth, each of the States and the Territories. Subclause 6(2) provides that nothing in the Act renders the Crown liable to be prosecuted for an offence.


Clause 7 - Extension to external Territories


Clause 7 extends the Act to every external Territory.

Clause 8 - Application of Charter


Clause 8 provides that a law enacted before, on or after this Act that is inconsistent with the Charter, does not have any force or effect to the extent of the inconsistency.


Clause 8 is intended to prevent any violation of human rights by Commonwealth, State and Territory laws. In order to override the Charter, a law will have to state expressly that it is intended to do so. Thus, while a future Parliament may derogate from the Charter, 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 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 subclauses are intended to do.


Subclause 8(2) provides for the case where a later law does expressly declare that its provisions, insofar as they are inconsistent with the Charter, shall prevail. In such a case, the intention is that both the Charter and the later law will be valid laws, but that the later law shall be operative and the Charter 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 Charter Act will prevail to the extent of the inconsistency.


Subclause 8(6) provides that the rights and freedoms set out in this Act are in addition to other existing rights. They do not derogate from or replace existing rights.

Clause 9 — Interpretation of legislation


Clause 9 provides, in effect, that the Charter 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 result in inconsistency with a right or freedom in the Charter.

Clause 10 — No rights of action or criminal liability under Charter


The Charter is intended as a shield, not a sword. Clause 10 makes it clear that no individual may be sued or prosecuted on the basis of an infringement of the Charter. However, while an infringement of the Charter cannot itself give rise to an action, existing remedies (for example, actions for false imprisonment) will continue to be available.


Clause 11 - Powers of courts in criminal proceedings


Subclause 11(1) provides that where, in criminal proceedings, the court is satisfied that evidence was obtained in a manner which infringed Charter rights, the party tendering that evidence must satisfy the court that the admission of the evidence would substantially benefit the public interest in the administration of criminal justice, and that that benefit would outweigh any prejudice to the rights and freedoms of any person, including the defendant, that would flow from the infringement or the admission of the evidence.


Subclause 11(2), in circumstances where those rights have been infringed, confers a broad judicial discretion to make such order as the court considers “appropriate and just in all the circumstances” for the purpose of ensuring “that the administration of justice is not brought into disrepute”.


This approach is considered preferable to the approach under the United States Bill of Rights where there is blanket inadmissibility in relation to evidence obtained in contravention of the Bill of Rights.

Clause 13 — 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 Charter.


Paragraph 13(1)(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 Charter. 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 Charter has been infringed, it must report to the Minister for the time being administering this Act.


Paragraphs 13(1)(b) and (c) are concerned with promotional, research and educational functions.


Paragraph 13(1)(d) empowers the Commission to examine enactments and, when requested, proposed enactments with a view to identifying possible inconsistencies with the Charter, and to report to the Minister the results of any such examination.


Paragraph 13(1)(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 Charter. Such reports may be made at the request of the Minister or on the Commission's initiative.


Paragraph 13(1)(f) permits the Commission to seek leave of the court to intervene in proceedings relating to a matter arising under this Act.


Paragraph 13(1)(g) confers the usual incidental powers.

Clause 14 - Performance of the Commission in relation to Charter


Subclause 14(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 Charter. This in effect, brings in the powers to obtain information and documents, to examine witnesses and other procedural matters to the Charter Bill, without replicating such functions in the Bill. Subclause 14(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.




The Parliamentary Charter of Rights and Freedoms is set out in Schedule 1. 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 32 Articles arranged in six Divisions, which are the major substantive provisions of the Bill.


Article 1—Entitlement to rights and freedoms without distinction


Article 1 of the Charter expresses the basic principle that no one is above or outside the law, that everyone is entitled to its impartial application, and that, in particular, the fundamental rights and freedoms laid down in the Charter are to be equally enjoyed by everyone.


The substance of the right of equality before the law is the important, but limited, principle that there should be no class of persons which is above or outside the framework of the law, or denied access to the law, whatever the law may be. This right does not of itself guarantee that access to the courts might not in fact be qualified on financial or other grounds.


Article 1:1 is based upon the terms of Article 2:1 of the Covenant, and on the reference to “equality before the law” in Covenant Article 26. To implement Covenant Article 3, and 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 in the Charter.

Article 2—Effect of Bill of Rights on existing rights and freedoms


Article 2 (by ensuring that existing rights and freedoms continue) implements the requirement in Covenant Article 5:2 that a country is not permitted, on the pretext of implementing the Covenant, to restrict existing rights and freedoms.


Preserving rights or freedoms under, or recognised by, any other law includes common law as well as statutory rights. The Article is also intended to introduce an element of flexibility which will permit adjustment to future social developments.

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 Covenant are qualified by detailed limitation provisions permitting a number of exceptions and restrictions: see, for example, Covenant Articles 12 (freedom of movement), 14 (public hearings), 18 (free exercise of religion), 19 (freedom of speech), 21 (freedom of assembly), and 22 (freedom of association). The various justifications for limiting rights or freedoms set out in the Covenant include such important matters as the protection of national security, public safety, public order ( ordre public ) and public health. Carrying some or all of the Covenant qualifications into the relevant Charter 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 Covenant are stated in apparently unqualified terms. Indeed, Covenant 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 Covenant states in unqualified terms are regarded as morally or philosophically absolute, their legal enforcement cannot, in the nature of legal processes, be absolute. The Bill will provide for legislative protection of human rights through the Charter itself; for judicial enforcement through interpretation and application of the Charter; 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 Covenant contains inbuilt qualifications: for example, Covenant Article 17 says “no one shall be subjected to arbitrary or unlawful interference”. Such qualifications are usually reproduced in the Charter; 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 Covenant, Article 3 of the Charter adopts a similar solution to that adopted in the 1982 Canadian Charter of Rights and Freedoms. All the rights and freedoms of the Charter 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 Charter (which are not themselves absolute in the Covenant) 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 relevant Covenant provision. On the basis of the test provided in Article 3:1, however, it is clear that any permissible limitation on an Charter right need not necessarily restrict that right to the full extent permitted by the Covenant.

Article 4—Equal Protection of the Law


Article 4 implements the guarantee of “equal protection of the law” contained in Article 26 of the Covenant. The travaux preparatoires to the International Covenant 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 paragraph 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 Charter is that Article 4, 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 Covenant 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 4:2 of the Charter makes this explicit and also ensures that nothing else in the Charter will affect “benign discrimination” provisions.

Article 5—Rights of minority groups


Article 5 implements the protection of cultural, religious and linguistic rights of minorities contained in Covenant Article 27. The particular rights guaranteed by Article 5 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.


Article 6—Right of participation in public life


Article 6 implements Covenant 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 words “public service” may be ambiguous in Australia. Article 6, therefore, substitutes “public employment” to ensure that employment at all three levels of government, and in government authorities, is covered. Otherwise the operative words of the Covenant Article are transcribed without change.


The Covenant provision is to operate “without unreasonable restrictions”. In the Charter 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 7—Freedom of Expression


Article 7 implements Covenant Article 19:2, a broad guarantee of freedom of expression and information. The Covenant Article clearly covers freedom of the press and the media and this has been made explicit in Article 7. Certain limitations are permitted by the Covenant Article; limitations are permitted in the Charter by Article 3.


A provision not included in the Charter is Covenant Article 20. It states that propaganda for war and incitement of national, racial or religious hatred shall be prohibited by law. As the Charter is designed to prevent government infringement of individuals’ rights, rather than to stop certain behaviour of individuals, these prohibitions are more appropriately implemented by separate and specific legislative measures. Such legislation would then be measured against Article 3 if challenged as contrary to the freedom of expression guaranteed by Article 7.


Article 8—Freedom of thought and conscience


Article 8 implements those parts of Covenant Articles 18 and 19 concerned with freedom of thought, conscience and opinion.






Article 9—Freedom of religion or belief


Article 9 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 Covenant Articles 18:1 and 18:2 which are concerned with freedom of religion. Covenant Article 18:3 permits a range of restrictions on the freedom to manifest one’s religion; limitations are permitted in the Charter by Article 3. Covenant Article 18:4 is dealt with in Article 14(d)—see below.


Article 9:2 confers on every person the right not to adopt a religion or belief and, subject to Article 14(d) below, prohibits compelling any person to participate in religious worship or ceremony.


Article 10—Right of peaceful assembly


Article 10 implements the guarantee in Covenant Articles 21 and 22 of freedom of assembly. Certain limitations are permitted by the Covenant provision; limitations are permitted in the Charter by Article 3.

Article 11—Freedom of association


Article 11 implements the guarantee in Covenant Article 22 of freedom of association, including the right to form and join trade unions for the protection of one’s own interests. Covenant Article 22 permits restrictions of trade union rights, but limits the permissible restrictions by reference to ILO Convention No. 87. Article 11 of the Charter 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 11 in the same way as does the Covenant. Following the Covenant, trade union rights are guaranteed by the Charter 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.

Article 12—Right to protection from arbitrary interference


Article 12 implements the protection from arbitrary interference in Covenant Article 17. It provides that a search, entry or seizure is unlawful unless certain minimum conditions are met.

Article 13—Right to marry and found a family


Article 13 recognises the importance of the family in its many forms and provides that every person of marriageable age has the right to marry and to found a family. It further provides that no marriage shall be entered into without the free and full consent of the intending spouses.

Article 14—Rights of the child


Covenant Article 24:1 appears to have two concerns—

·                      the protection of children from the various forms of prohibited discrimination (race, colour, sex etc.); and

·          the recognition that children require special measures of protection.

Accordingly, Article 14 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. Covenant Articles 24:2 and 24:3 create children’s rights to a name, nationality and registration of birth. Articles 14(b) and (c) implement these requirements.


Article 14(d) (affirming respect for the liberty of parents and guardians to ensure the religious and moral education of their children according to their own convictions) repeats the provisions of Covenant Article 18:4. This liberty of parents and guardians is to be balanced, having regard to the child’s age, with the child’s own fundamental rights.


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 14 as sufficient to determine the precise rights of young persons in particular circumstances.

Article 15—Rights of persons in Australia
Article 16—Right to enter Australia
Article 17—Right to leave Australia


Articles 15, 16 and 17 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 Covenant Article 12.


The citizen’s right to enter Australia is unqualified in the Covenant. Certain limitations of the other rights are permitted by the Covenant provision; in the Charter limitations are permitted by Article 3.


Covenant Article 13 requires that aliens lawfully in Australia may not be expelled except “in accordance with law”. Article 15:2 of the Charter implements this requirement. The Covenant 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 Charter Article 15:2 “on such grounds and in accordance with such procedures as are established by law”. It is not appropriate to the drafting style of the Charter to spell out in detail the procedural requirements.


Article 18—Right to Life


Article 18 implements Covenant Article 6:1 on the deprivation of life.


Paragraphs 2, 4 and 5 of Covenant 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 Charter might appear to condone it: hence, consistently with paragraphs 6, the Charter does not implement paragraphs 2, 4 and 5.


Article 18 follows as closely as practicable, consistent with the drafting style adopted in the Charter, the wording of Covenant Article 6:1 and is not intended to modify the existing laws on abortion in Australia.


Article 19—Liberty and security of person


Article 19—the right to liberty and security of person—derives from Covenant Article 9:1. The Covenant Article also prohibits arbitrary arrest or detention, and this prohibition is implemented in Article 19:2.


Article 19:4 implements Covenant Article 11, that no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

Article 20—Slavery and servitude


Article 20 implements the prohibitions in Covenant 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 Covenant provision. In the Charter, limitations are permitted by Article 3.

Article 21—Right to be informed of reasons for arrest and of charges


Article 21 (the right to be informed of the reasons for arrest, and to be informed promptly of any charges) implements Covenant Articles 9:2 and 14:3(a).



Article 22—Right to remain silent and to have access to lawyer


Article 22 protects the rights to remain silent and to have access to a lawyer before and during questioning.  In order to ensure the effective protection of these important rights, it picks them up at an earlier stage of the criminal process than the Covenant. Generally, throughout this part of the Charter, an effort is made to state the rights in the chronological order in which they would become relevant to an arrested person.

Article 23—Hearings, release and trial


Article 23 implements Covenant Article 9:3, but attempts to separate the three distinct rights that appear to be 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 24—Right to test lawfulness of detention


Article 24 implements the right under Covenant Article 9:4 to test the lawfulness of any detention (for example, by habeas corpus) and, where appropriate, to be released.


Article 25—Presumption of innocence


Article 25 implements Covenant 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.


Article 26—Right to fair hearing


Article 26 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 Covenant Article 14:1. The Covenant 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 Charter. Certain limitations are permitted by the Covenant provision. In the Charter limitations are permitted by Article 3.

Article 27—Rights of accused relating to trial


Article 27 should be read with Articles 21 to 23 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 Covenant Article 14:3. An 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 27(b) states the right to communicate with a lawyer; but Article 27(a) first ensures that a person charged will be informed of the right to legal assistance.


Article 27(c) provides for free legal aid “if the interests of justice so require and the person lacks sufficient means to pay for the assistance”. This implements the similarly qualified right in Covenant Article 14:3(d). The reference to “the interests of justice” is understood as permitting reasonable discretions in the granting of legal aid, based on the merits of the case and on the seriousness of the offence.


Other rights set out in Article 27 (all based on Covenant 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 27(i), the words “against himself” used in Covenant 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 22.


Covenant Article 14:4 requires a procedure for juveniles which takes account of their age. This requirement is implemented in Article 27(j).


Article 28—No retrospective criminal offences or penalties


Article 28 prohibits the creation of retrospective criminal offences, or a retrospective increase in penalties (Covenant Article 15:1). It should be noted that in both the Covenant and the Charter the ban on retrospectivity applies only to criminal offences and penalties.

Article 29—Right of review of conviction and sentence


Article 29 recognises a right to review of conviction and sentence (Covenant Article 14:5).

Article 30—No trial or punishment for same offence


Article 30 prevents “double jeopardy” (Covenant Article 14:7).


Article 31—Rights when deprived of liberty


Article 31 implements rights in relation to deprivation of liberty contained in Covenant Article 10. Article 31:1 (all persons deprived of liberty to be treated with humanity and respect to human dignity) implements Covenant Article 10:1.


Other paragraphs of Covenant Article 10 require segregation of prisoners: accused persons from those already convicted, and juvenile offenders from adults (with appropriate treatment for juveniles). In the Covenant the first of these requirements is to operate “save in exceptional circumstances”; the second is absolute. Both requirements are implemented by Article 31:2, but in both cases only “so far as is practicable”.


This limitation is a recognition that in the short term, strict compliance with the Covenant may be difficult for state administrations. Some leeway is allowed to take into account what is practicable. However, in the long term strict compliance should not normally be impracticable.


Article 32—No torture or inhuman treatment and no experimentation without consent


Article 32 prohibits torture and inhuman treatment, and medical experimentation without consent, and implements Covenant Article 7. The implementation of this prohibition is essential because it is fundamental to a general statement of human dignity.