Australia is the only western liberal democracy without some form of federal charter of human rights. That may soon change, with a recent parliamentary inquiry recommending a federal Human Rights Act. Before delivering its landmark report on 30 May 2024, the Parliamentary Joint Committee on Human Rights spent more than a year considering over 300 public submissions, 4000 campaign letters, and the evidence of over 130 people at public hearings held throughout the country.

What is the current state of human rights protection in Australia?

Current human rights protection in Australia is piecemeal. Few rights are in the Constitution, with fundamental rights such as the right to vote and the right to freedom of political communication merely implied. Other rights are found in the common law, while others still are in various, sometimes inconsistent, anti-discrimination laws. Some states and territories have existing Human Rights Acts (Queensland, Victoria and the Australian Capital Territory), while the rest do not. As the Australian Human Rights Commission noted in its submission to the inquiry, ‘the current rights framework is not easily explainable, or readily comprehensible, to all people in Australia…[It] is difficult to explain to everyday Australians, whose rights are meant to be protected’.

While Australia is party to an abundance of international treaties and protocols (including the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)), its legislative implementation of these obligations has been sporadic. Various UN bodies and avenues, from the Committees to Special Rapporteurs to the Universal Periodic Review, have frequently recommended that Australia adopt a federal Human Rights Act to address this shortcoming.

What does the proposed Human Rights Act encompass?

The report puts forward a largely progressive and comprehensive Human Rights Act model. The draft bill includes an array of fundamental rights not currently adequately protected, from the right to health, the right to a healthy environment and rights to culture, both generally and in relation to First Nations Peoples. Of note, the bill includes an obligation on public authorities to act and make decisions in a way that is compatible with human rights (s 47). That obligation includes an additional requirement – a ‘participation duty’ – to ensure the participation of Aboriginal and Torres Strait Islander people, people with disability, and children, in decisions that disproportionately affect them (s 47(4)). However, the draft bill explicitly shies away from the progressive realisation of economic, social and cultural rights, instead favouring a no ‘retrogressive measures’ approach (s 14).

The additional comments of Committee member Senator Lydia Thorpe – a Gunnai Gunditjmara and Djab Wurrung woman – provide a stark reminder of Australia’s poor track record upholding the human rights of First Nations Peoples. Broadly, she recommends the proposed Act more closely align with UNDRIP. In particular, she recommends that the right to self-determination be included as an inherent and justiciable right for Sovereign First Nations Peoples, and that the right to free, prior and informed consent (FPIC) be a stand-alone right in the Act. While not in the bill, the report does recommend that the government seek legal advice as to whether the collective right to self-determination could be recognised as a stand-alone right in the Act.

Beyond recommending a Human Rights Act, the report makes wide-ranging recommendations to strengthen Australia’s national human rights framework, from mandatory human rights training for all public service employees, to human rights education in schools and the wider community, and enhancements to human rights parliamentary scrutiny.

What next?

With a federal election to be held next year, it is not yet clear if and how the government will adopt the Inquiry’s central recommendation, still reeling from its 2023 failed referendum on an Indigenous Voice to Parliament. What is clear is that there is a strong civil society push calling on the federal government to introduce the Act, coupled with broad public support for the Act. The report offers a thoughtful approach to implementing human rights protections and aligning Australia closer to international best practice, while navigating its unique constitutional landscape. Whether the current government embraces this unique opportunity remains to be seen.

Want to learn more?

• Silencing the Indigenous Voice: How Australians Have Failed Their Own People – Part I and Part II
• Queensland’s Suspension of Human Rights Act for Youth Detention
• Meeting Australian Human Rights Priorities Before Implementing a Charter of Rights
• A Human Rights Act for Queensland