Pushing to add human rights

When the Australian Capital Territory (ACT) government was considering creating its own bill of rights, it chose Professor Hilary Charlesworth from The Australian National University (ANU) to head a committee to study the idea and consider specific rights that should be included.

Charlesworth’s group returned an in-depth report that helped the ACT to become the first Australian state or territory to adopt its own human rights law in 2004. The effort also influenced the drafting of the Victorian Charter of Human Rights and Responsibilities, and Charlesworth and other ANU researchers have been consulted by several state governments considering rights legislation over the past decade.

Unlike most western democracies in Europe and North America, Australia has never adopted a general human rights law or bill of rights. Human rights laws define basic rights held by individuals and the limits of governmental power.

Politicians, legal scholars and judges have often said that robust debate in parliament was the greatest guarantor of Australian rights, Charlesworth said. But in cases involving unpopular minorities, such as refugees or terrorist suspects, human rights often get lost in the political debates.

“In Australia, constitutional law mainly is about federalism and who has powers to tax. Rights simply don’t come into it,” she said.

Prior to 2004, attempts had been made by the Commonwealth government several times to enact human rights guarantees but none were successful. In the ACT, the Labor Party attempted to enact such legislation in 1995, but a change in party control scuttled the effort.

In a subsequent pursuit, ACT officials chose Charlesworth to lead the ACT Bill of Rights Consultative Committee because of her extensive research on human rights and international and Australian law. Specifically, she spent a decade researching and writing about the idea of introducing bills of rights into established constitutions.

“This had always been dismissed as airy-fairy, pie-in-the-sky stuff,” said Charlesworth, who was surprised to be contacted by the ACT government on the topic.

Her group spent 13 months researching and writing its report, which included creating draft legislation. The committee devoted considerable energy to engaging the public on the topic, and published extensive background information on human rights, held six town meetings throughout the ACT and conducted a deliberative poll of 200 randomly selected participants.

“There was a huge amount of misconceptions,” Charlesworth said. “People thought we were bringing a US style bill of rights here. People were terribly worried about the (US) Second Amendment and saying a bill of rights will have the same impact here and people will run around with guns.”

Ultimately, the committee proposed 17 major political, economic and social rights that should be accorded to all within ACT jurisdiction. The ACT Legislative Assembly used the report to adopt the Human Rights Act 2004, which included specified rights of:

  • protection from torture and cruel treatment
  • freedom of thought, religion and belief
  • protection of the family and children
  • freedom of association and expression
  • right to a fair trial and freedom from arbitrary arrest
  • freedom from cultural or ethnic discrimination.

However, other rights endorsed by Charlesworth’s committee surrounding work conditions, adequate food and housing and education were left out.

Following enactment of the law, Charlesworth and others at ANU School of Regulation and Global Governance (RegNet) took on projects that documented the impact of the new bill of rights – especially whether it would lead to an explosion of lawsuits – and explored whether it should be amended to include explicit guarantees of economic, social and cultural rights.

RegNet established and maintained a website devoted to the ACT law that includes a database of legal cases that reference the law from 2004 to the present. While it did not lead to huge numbers of lawsuits being filed, the law led to lawmakers becoming more attentive to respecting human rights when they drafted legislation.

In subsequent research on the law, Charlesworth and colleagues submitted an additional report in 2010 that recommended several additional rights be adopted. The Attorney-General of the ACT used the document to start political debate on the topic later that year.

The recommendations were debated in 2012 and, although rejecting most of the proposed provisions, the ACT government did adopt an additional right of education – the first in Australia.

Despite the omission of some rights that Charlesworth thought important in the Human Rights Act, she is encouraged that many had been adopted and that other states are considering adopting their own rights bills. Charlesworth has been consulted by Queensland officials who were debating human rights provisions in 2018.

“This has been an interest of mine for a really long time. I feel sometimes like I’m sort of a grandmother figure making these same arguments,” she said. “It’s very rare as an academic that you are engaged directly in a law-reform activity, and I loved the experience.”

Research funded by: Australian Research Council

Related websites: ACT Economic, Social and Cultural Rights project
ACTHRA Portal database

Related research: Professor Hilary Charlesworth

Image credit: Shutterstock

Updated:  24 April, 2017/Responsible Officer:  Dean, ANU College of Asia & the Pacific/Page Contact:  CAP Web Team