Symposium: Protecting Human Rights in Australia: Challenges and Strategies

The Australian human rights debate: Where to from here?

Louise Chappell, The University of Sydney

In 2002 I wrote an article for the Australian Review of Public Affairs arguing that the proponents of a Bill of Rights for Australia had their priorities the wrong way around: they put too much emphasis on defining an appropriate model but did not pay enough attention to assessing either public or political support for such a measure. These three elements, I argued, were crucial to the adoption of any bill of rights in Australia. Seven years on, the debate has progressed somewhat thanks to the work of the National Human Rights Consultation Committee (NHRCC), established by the federal government in late 2008. The Committee handed its report to Attorney-General Robert McClelland on 30 September 2009 and we now await the Rudd Government’s response.

Unlike much debate on this topic, what follows does not rehearse the pros and cons of the adoption of a human rights act. (I will declare my own view, though: I do support this model as a way to enhance protection of citizens’ civil and political rights (see Chappell et al. 2009, chapter 3).) Rather, the purpose of this article is to consider the extent to which the Committee has ‘rebalanced’ the debate on the matter of engaging politicians and the public in deliberations on rights and where the Committee’s report leaves us on the question of extending the protection of human rights in Australia.

received over
35,000 submissions.

Chaired by Frank Brennan, Catholic priest and long time rights commentator and lawyer, the Committee included broadcaster Mary Kostakidis, former Federal Police Commissioner Mick Palmer, Indigenous lawyer Tammy Williams, and former diplomat Philip Flood. The Committee’s terms of reference covered three areas: the nature of the rights that need to be protected; the effectiveness of current rights protection arrangements; and options for non-constitutional models for rights implementation.

A changed political context helps explain the timing of the Committee and its brief. The election of the Rudd Government in late 2007 saw Robert McClelland—someone with a long time interest in and stated commitment to strengthening rights protection—take on the role of Attorney-General. McClelland and the Rudd Government more generally, were keen to distance themselves from the former government’s implacable opposition to a bill of rights and its poor record on human rights protection in general. Australia’s re-engagement with the United Nations stood alongside the appointment of the Brennan Committee as a sign that the federal government would once again take human rights seriously. Further, the fact that two sub-national governments—the ACT and Victoria—had decided to ‘go it alone’ and enact human rights acts (in 2004 and 2006 respectively) after extensive consultation, was evidence that human rights legislation could be a well-supported and workable option for Australia’s Westminster-style parliaments.


In taking up its brief, the Committee made an important contribution to the public debate on rights by integrating extensive community consultation into its work. Although the public has been given the opportunity in the past to voice its concerns on rights issues outside general elections—most notably during the constitutional referendum of 1988—never before has federal-level consultation on human rights issues been so widespread and comprehensive. The NHRCC received over 35,000 submissions, the largest number ever for a national consultation, and engaged over 6,000 individuals at public forums throughout the country. Additional surveys and focus groups of over 1,200 randomly selected participants as well as expert testimony added further weight to the public opinion that the Committee had to consider in making its recommendations.

The NHRCC has drawn on this consultation in making its recommendations in each of the three areas under review. On the question of which rights should be protected, there appeared little community controversy. The Committee noted the general community concern for the need to protect social, economic and cultural rights; education, housing and health rights were identified as being particularly important to the well being of all Australians. Both the general public and the Committee highlighted Indigenous disadvantage in each of these areas as particular concerns. On the question of civil and political rights, the HRCC, reflecting many submissions, focused on the need to protect those rights contained in the International Covenant for Civil and Political Rights (ICCPR) and stressed the importance of some form of official acknowledgment of those rights that are non-derogable under the ICCPR—including the right to life and to be free from torture and slavery—as well as other rights related to rights to privacy, freedom of speech, free movement and so on (pp. 368–369). Consultation suggested that community concerns have grown about the protection of these rights with the introduction of domestic anti-terror laws in the Post-September 11 environment; these laws are viewed as curtailing certain civil and political rights, including freedoms of speech and assembly and rights to a fair trial (see National Human Rights Consultation Committee Report 2009, p. 345; Gelber 2009; Chappell et al. 2009).

No one element in the current human rights framework works well on its own.

When it came to the issue of the adequacy of current rights protection, the NHRCC found a mixed community response. According to the report ‘most of the people who attended the community roundtables and presented written submissions to the Committee wanted to see greater protection and promotion of human rights and responsibilities. Only a minority believed our current protections was adequate’. This view is not, however, reflected in the results of the commissioned research involving 1,200 randomly selected respondents ‘[where] it was found that most participants gave little thought to their human rights because they believed those rights to be adequately secured’ (p. 15).

In its report, the Committee aligns with the former group, arguing that the current system was inadequate. In framing its findings, it makes much of the ‘patchwork quilt’ analogy often used to describe the imperfect and often ad hoc arrangements by which rights protection takes place in Australia. In the Committee’s view:

Australia has a patchwork quilt of protection for human rights. We have made commitments to a range of obligations under international human rights law, but these obligations are enforceable in Australia only if implemented in domestic legislation. Although there are numerous mechanisms for holding Australia accountable at the international level, they are not legally binding and their recommendations can be, and have been, ignored by Australian governments. We also have strong democratic institutions, but they do not always ensure that human rights—and in particular minority rights—receive sufficient consideration (p. 349).

The report suggests that no one element in the current human rights framework works well on its own and nor does the interaction between political institutions combine in such a way as to provide an adequate safety net for Australian’s human rights.

Of most interest to the public and commentators have been the Committee’s recommendations on how best to repair some of the ‘holes’ in this patchwork quilt. The report urges the adoption of a range of measures, each of which had received public support during the consultation process including: increased rights education; strengthening the commitment to international human rights treaties to which Australia is a signatory; and adopting better processes for implementing human rights concerns at the point of legislative and policy development. The most contentious matter, and the one that most exercised the public’s mind during the consultation, concerns the issue of the implementation of a human rights act (HRA)—what could be considered as a ‘soft’ version of a bill of rights. Both the ‘interested public’ who engaged directly with the NHRCC and the survey group demonstrated strong support for such a proposal. A total of 87.4 per cent of those who presented submissions to the Committee and expressed a view on the question supported such an Act while 57 per cent of the national telephone survey sample supported this proposal (p. 362).

The model favoured by the NHRCC is a minimalist one.

In raising the issue of a federal human rights act, the NHRCC prompted extensive commentary by long-term advocates and opponents of such a reform. Although both sides argue they are concerned about the better protection of Australian’s human rights, their suggested methods for doing so are diametrically opposed. One the one hand, opponents such as legal academics Helen Irving and Tom Campbell and politicians across the political divide, including Bob Carr and George Brandis, fear any act would lead to the ‘judicialisation of politics’, result in a ‘lawyers picnic’ and upset the separation of powers in the current system (see, for example, Carr 2009; Kelly & Merritt 2009). Such commentators argue in favour of enhancing parliamentary scrutiny of rights issues but decry any move to involve the courts in adjudicating rights. On the other hand, advocates of a rights act argue that parliamentary scrutiny will never afford enough protection because of the self-interested nature of politicians whose desire for re-election will inevitably predispose them to ignore the rights of minorities (see, for example, Williams, 2009). The treatment of Indigenous Australians, asylum seekers and homosexuals is invoked as evidence for this position.

According to the Brennan Committee, there is a tendency for supporters and detractors of a human rights act to overstate their achievements and their shortcomings (p. 377). As for its own view, the NHRCC found merit in the idea of a HRA. It argued that rights in Australia would be better protected were the government to introduce a ‘Human Rights Act that recognises and fully protects non-derogable civil and political rights and that offers a process for engagement by all three branches in government when parliament legislates to set limits on other civil and political rights’ (p. 377).

The model favoured by the NHRCC is, on the spectrum of bill of rights models, a minimalist one. This was inevitable given the terms of reference that directed the Committee to identify options that would ‘preserve the sovereignty of the parliament and not include a constitutionally entrenched bill of rights’ (p. 382). The recommended model is what is known as a ‘dialogic’ model, one which is designed not to give an over-bearing role to the courts but is framed so as to promote increased ‘dialogue’ between the branches of government while leaving parliamentary supremacy intact (for a full outline of debates on different models see Chapter 3, Chappell et al 2009). In the proposed version—which is very similar to the Victorian and ACT models—citizens are able to challenge existing legislation in the courts on rights grounds. If the legislation is found to infringe rights, the HRA would enable courts to issue a ‘statement of incompatibility’, triggering a reassessment of the legislation by parliament (see more below). The proposed model is further limited by its reference only to civil and political rights; social, economic and cultural rights are not considered by the NHRCC to be amenable to decisions by courts. Further, due to constitutional limitations, the HRA would only apply to federal law, leaving citizens in states without a bill of rights (that is, everyone outside the ACT and Victoria) without access to a rights remedy for state-based matters. As the Committee noted, in relation to rights regulated by the states, ‘the Commonwealth can do little but put its own house in order and lead by example’ (p. 378).

It is far from certain that the Rudd Government will adopt a human rights act.

During its deliberations on an appropriate model for the Australian context, the Committee unwittingly sparked an entirely new debate among proponents and resistors of a bill of rights about the constitutionality of any ‘dialogic’ model of human rights protection. This debate arose after former High Court Justice Michael McHugh, himself an in-principle supporter of a bill of rights, questioned the ability of the High Court to declare any act of parliament as incompatible with the HRA on the grounds it would breach the doctrine of the separation of powers (see Human Rights Commission 2009). Not surprisingly, McHugh’s intervention in the debate resulted in a flurry of media commentary from those for and against a HRA, with critics making much of the seeming unworkability of any federal HRA in the Australian constitutional context (for a discussion, see Ackland 2009).

In its report, the NHRCC noted that it had received legal advice to the effect that its proposed model, (allowing the High Court to trigger parliamentary review of legislation through a statement of incompatibility), was not unconstitutional. However, should the government be reluctant to test the constitutional waters in this area, it also suggested an alternative approach. That is, ‘consideration could be given to allowing members of parliament, rather than the courts, to trigger the legislative review process’ (p. 374). After the release of the report, Brennan reiterated this point in his initial media interviews in an effort to overcome criticism of the model (Kelly & Merritt 2009). Whether this suggestion is an adequate compromise is yet to be seen. There is no doubt that, should this recommendation be adopted, it would lead to a significant weakening of the dialogic model and also come with its own set of political problems. It is unlikely to please either the advocates of a HRA, who would view it as leaving too much authority with parliament, or the opponents, who would still reject any judicial intervention in the area. It is now up to the government to decide in which direction, if any, it should advance a human rights act.

After all the years of debate about the appropriate model for an HRA in Australia, the Committee appears not to have resolved the issue completely. Important questions about the role of parliament vis-à-vis the courts are still hanging. Putting the model aside, the Committee has nevertheless made an important contribution through its engagement with the public on rights issues, which has demonstrated significant public support for furthering human rights protection in general, and the adoption of a HRA in particular. The supporters of a bill of rights have inferred such support in the past, but never before have they had access to such detailed and favourable public opinion research; this material will be crucial to its future lobbying efforts.


A crucial element required for change is missing: political leadership.

Despite evidence of public support, it is far from certain that the Rudd Government will adopt a human rights act. As noted, Robert McClelland, prior to coming to office had been an advocate for such legislation. However, since assuming his role as Attorney-General, McClelland’s rhetoric has softened and he has been much more circumspect in his support for legislative rights protection. Most notably, in a speech to mark his acceptance of the Committee’s report, he omitted any reference to a HRA. He stated:

The report shows that there are many views on how human rights and responsibilities should be protected, promoted and realised. Unsurprisingly, there are strong views firmly held on the merits or otherwise of a Human Rights Act. However, as the report clearly shows there are many ways to protect and promote human rights including through enhanced education and improved parliamentary scrutiny (Attorney-General, 2009).

McClelland’s caution, combined with the absence of overt support from Prime Minster Rudd for major reform in this area, suggests that a crucial element required for change is missing: political leadership. As policy studies tell us, without a ‘policy entrepreneur’ operating at the highest political level, able to wield influence and override extensive political opposition, it is difficult to maintain an issue on the policy agenda. There are at least two political calculations the government will need to make in deciding how to proceed. First, is it worth entering into to such an exercise when the government is still able to act on a range of other recommendations and, by so doing, both reiterate Australia’s acknowledgement of rights and tighten parliamentary overview of rights issues? Second, should the government expend political capital on an issue that will provoke a serious and sustained political attack—including from the opposition and its own side of politics (through the likes of former NSW Premier, Bob Carr and former Federal Minister, Michael Tate (Tate, 2009)—and that may well face a ‘death by a thousand amendments’ in the Senate, when it can gain credibility in the rights area by implementing less controversial measures?

There are sound reasons for the Australian parliament to introduce a HRA. As the National Human Rights Consultation Committee noted: ‘[a] Human Rights Act on its own will not mend the largest holes in the quilt of Australian rights protection’ (p. 377), especially for social, economic and cultural rights. Nevertheless it could make an important difference to citizens’ ability to hold government accountable for protection of their civil and political rights. However, for such a proposal to be taken up, three elements must be in place: a sound model, strong public support and political leadership. Formerly, it seemed the choice of model—legislative rather than constitutional—was settled. The NHRCC has demonstrated that the devil is in the detail on this question and that this aspect of the reform agenda still needs finessing. Public support for a HRA has been demonstrated more clearly than ever before. However, the final piece in the puzzle—political support—remains equivocal. The NHRCC has contributed to tightening human rights protection in Australia through its articulation of public support, but it has not been able to perfectly align the three elements necessary for human rights protection reform.


Ackland, R. 2009, ‘Human rights dialogue develops a stutter’, The Sydney Morning Herald, 13 March [Online], Available: [2009, Nov 6].

Attorney-General, 2009, The protection and promotion of human rights in Australia, Speech, Parliament House, Melbourne, Thursday, 8 October [Online], Available: [2009, Nov 9].

Carr, B. 2009, ‘Bill of rights is the wrong call’, The Australian, 9 May [Online], Available: [2009, Nov 9].

Chappell, L. 2002, ‘The Australian bill of rights debate’, Australian Review of Public Affairs, August [Online], Available: [2009, Nov 20].

Chappell, L., Chesterman, J. & Hill, L. 2009, The Politics of Human Rights in Australia, Melbourne, Cambridge University Press.

Gelber, K. 2009, ‘Freedom of speech and a bill of rights’, Australian Review of Public Affairs, November [Online], Available: [2009, Nov 20].

Human Rights Commission 2009, ‘Constitutional validity of an Australian Human Rights Act’, Statement of meeting of Australian constitutional and human rights lawyers to discuss the constitutional implications of an Australian Human Rights Act, 22 April [Online], Available: [2009, Nov 6].

Kelly, P. & Merritt, C. 2009, ‘Human rights charter a recipe for chaos as Frank Brennan cites “enormous problems”’, The Australian, 10 October [Online], Available: [2009, Nov 1].

National Human Rights Consultation Committee 2009, National Human Rights Consultation Committee Report [Online], Available: [2009, Nov 1].

Tate, M. 2009, ‘Dangerous charter’, The Australian, 16 June [Online], Available: [2009, Nov 8].

Williams, G. 2009, ‘Wisdom of politicians is frail shield for our rights’, The Sydney Morning Herald, 2 June [Online], Available: [2009, Nov 5].

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