Direct implementation of the ICCPR

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not be said for the ICCPR, which requires States to take measures to respect the outlined rights and to provide individuals with ‘effective measures’ to enforce those rights. For this reason, the ICCPR and Australia’s efforts to implement it will be the main focus of this section on the domestic implementation of human rights standards.

2.2.3. Direct implementation of the ICCPR

The ICCPR was eventually ratified by Australia on 13 August 1980. Earlier attempts to implement (and ratify) the covenant had proved unsuccessful. In 1973, the previous Labor government of Whitlam had tried to pass legislation implementing the ICCPR.

Federally, this was Australia’s first government attempt at implementing a legislative bill of rights, a debate that continues to this day. Whitlam’s Attorney-General, Lionel Murphy introduced the Human Rights Bill into Parliament and argued its case. In Senate debates, he argued: “Although we believe these rights to be basic to our democratic society, they now receive remarkably little legal protection in Australia.”⁷ His proposed law would have enshrined the rights contained in the ICCPR into a domestic statute and provided for a Human Rights Commissioner to investigate infringements. This Bill, however, was never put to a final vote and lapsed before it could be passed.

One year after ratification, implementation of the ICCPR was first effected with the passage of the Human Rights Commission Act of 1981. Attaching the covenant as a schedule to the Act and including a statement as to the desirability of federal laws to conform to the ICCPR (among others), the Act established a human rights

commission to examine laws to ensure conformity to human rights standards. This control was, however, not binding and mainly involved reporting inconsistencies of already passed laws. It also must be said that mere scheduling of a treaty does not domestically incorporate it into Australian law. Attaching the ICCPR as a schedule intended to provide guidance to those enforcing the Act but did not have any legal effect. Thus from 1981, the Australian Parliament had addressed the domestic implementation of the ICCPR albeit in a minimalist manner by using it as a ‘point of reference’ for the newly formed Human Rights Commission without direct legal effect.

7 Commonwealth of Australia, 1973. Australian Parliamentary Library Records [Online]

http://www.aph.gov.au/library/intguide/law/rights19732ndR.htm [Accessed 10 April 2010]

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The next attempt to implement the ICCPR into Australia came in 1985. Bob Hawke’s Labor government had come to power and his Attorney-General Lionel Bowen introduced the Australian Bill of Rights Bill. This proposed law yet again attempted to implement the ICCPR by enshrining the human rights standards it contained in a bill of rights. This far-reaching law would have given human rights enforceability.

Specifically, statutes that breached the bill of rights could be ruled inoperative to prevent inconsistencies. Furthermore, a revised and more powerful human rights commission was proposed that would have the power to hear individual complaints of infringements. The Bill was strongly opposed and was dropped as it was considered a major constraint on Australia’s Westminster form of government.

The following year, the Hawke government succeeded in passing revised human rights legislation. In 1986, the Human Rights and Equal Opportunity Act was passed and established the Human Rights and Equal Opportunities Commission (HREOC).

This set up the body that was proposed in the previous year’s bill; however, it did not make binding ICCPR rights nor limit Parliament’s legislative authority. Similar to the 1981 Human Rights Commission Act, the 1986 Act attached the ICCPR as a schedule and defined human rights as to be those outlined in the international treaties. Those rights could not be enforced through court action against others or the government;

however, it did allow the Commission to investigate human rights infringements and to facilitate conciliation between parties as the only dispute resolution mechanism.

The legislation also provided for the commission to report its findings and conciliation results to the Attorney-General, giving further oversight to the government.

The 1986 Act has served as the basis for specific human rights protection at a federal level in Australia for over two decades and is assisted by various state

anti-discrimination laws. As a federation, which divides legislative power between the states and Canberra, the states also have a significant role in human rights protection.

Each state has adopted legislation protecting human rights and associated human rights commissions. Indeed, such state protections usually cover a wider range of rights and are more readily available to Australians. Two domestic jurisdictions have gone on to incorporate domestic bills of rights, notwithstanding a reluctance by

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successive federal governments. The Australian Capital Territory (ACT) and Victoria introduced the ACT Human Rights Act (2004) and the Victorian Charter of Rights and Responsibilities Act (2006) respectively. These two statutes, similar to the UK and Canadian human rights acts, enshrine human rights into domestic legislation and allow a court to issue a statement of incompatibility where it finds an act infringes human rights. They also provide for the enhanced scrutiny of legislation to ensure conformity to the outlined human rights standards. Therefore, we can see that human rights protections in Australia are covered to varying degrees at state and federal levels.

Without a bill of rights, Australia’s implementation of the ICCPR is unique. In areas such as privacy and protection from racial, sexual, age and disability discrimination, rights are well protected. While in other areas, legislation is lacking. Although many experts advocate a bill of rights for Australia, this is the subject of much debate and ongoing controversy. In 2008, the Federal Government commissioned a committee to conduct the National Human Rights Consultation and investigate community views on human rights and their protection in Australia. The Consultation committee’s final report recommended the government introduce a bill of rights, among others and this generated much opposition.⁸ Australia prides itself on its democracy and system of government. Indeed, human rights are fundamental to that system of government but the enshrining of human rights protections binding on Parliament are considered a limitation on popular sovereignty. Parliamentary supremacy is a cornerstone of the Westminster system and a bill of rights is seen as shifting the power to regulate human rights away from elected representatives and into the hands of judges, who are appointed and unelected. It is within this context that the debate rages on the

suitability of introducing a bill of rights in Australia. It is not generally a question of support for human rights but one of how best to protect them and who (whether the courts or legislature) should have the final say.

On 21 April 2010, the Australian Attorney-General announced changes to Australia’s human rights regime with important ramifications for the implementation of ICCPR in Australia. Significantly, the Rudd government refused to implement its

8 Commonwealth of Australia, 2009. National Human Rights Consultation. [Online]

www.humanrightsconultation.gov.au [Accessed 10 April 2010]

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commissioned committee’s recommendations and legislate a bill of rights, recognizing the lack of consensus on the issue. The Framework, however, does outline increased protections for human rights should it become law. Significant changes proposed include legislating to establish a Joint Parliamentary Committee on Human Rights, which would be charged with scrutinizing bills to ensure compliance with international obligations. Furthermore, legislation is proposed which would require every new bill before Parliament to be accompanied by a statement of compatibility with the seven core UN human rights treaties to which Australia is a party.⁹ If the framework is implemented, its effect on Australia’s ICCPR compliance would be significant, bringing in a direct parliamentary role for the first time.