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I’ve heard that Australia (or it’s Constitution) rejects the idea of human rights entirely. Instead it focuses on good government and democratic accountability

I’ve heard that Australia (or it’s Constitution) rejects the idea of human rights entirely. Instead it focuses on good government and democratic accountability. No bill of rights, but mandatory elections. Is that true? Does that distinction have much meaning?

skissane 3y ago
Australia's constitution doesn't have a Bill of Rights, yes. They tried to introduce one in 1988, but it failed in a referendum [0] However, it isn't true that it contains no individual rights. Expressly, it grants three federal rights (meaning they don't bind the states, only the federal government): religious freedom, trial by jury, and compensation on just terms in cases of expropriation / eminent domain. It also expressly grants two rights which do bind both state and federally: right to interstate free trade, and prohibition of discrimination based on state of residence. Furthermore, the High Court of Australia has read certain rights as "implicit" in its text, most famously the "implied right to political communication", which is a weaker version of the US First Amendment (since it only applies in political matters, not purely artistic expression). It also ruled that bills of attainder are unconstitutional – not on the grounds of individual rights, rather because they violate the separation of powers doctrine (determining the guilt of individuals is the exclusive competence of the judiciary, not the legislature). So it isn't true that the Australian constitution has zero protection for individual rights. It is true that those protections are much weaker than under the US federal constitution. However, there are also non-constitutional protections for human rights. For example, Australia has banned the death penalty nationwide. States cannot legally reintroduce it even if they wanted to. This is because Australia ratified an international treaty banning the death penalty (Second Optional Protocol to the ICCPR). And then there is a provision in the Australian constitution which permits federal legislation to enforce a treaty, and so the Australian Parliament used that to ban the states from having a death penalty–at the time of the federal ban, they'd all already repealed it anyway. It isn't constitutionally entrenched – there is nothing legally stopping a future federal Parliament from repealing that law - although in practice that seems very unlikely. So one could argue this is a case in which Australian law gives people more rights than US law does (the right not to be executed). Another example is when, in 1994, the federal Parliament legalised homosexuality nationwide, overturning the state of Tasmania's criminalisation of it. This was also done under the treaty / external relations power, in response to a UN Human Rights Committee decision that Tasmania's criminalisation of it violated the ICCPR [1]. The same procedure means the federal Parliament can enforce any other future decisions by human rights treaty bodies against the states – if there is political will to do so. Also, just like the US, state laws and constitutions can grant you additional rights on top of the federal ones. For example, the state of Victoria has a human rights charter [2] although that is not part of the state constitution, just ordinary legislation; and it does not grant courts power to strike down legislation, but it does say courts must interpret other legislation (wherever possible) to make it compatible with the charter. [0] https://en.wikipedia.org/wiki/1988_Australian_referendum_(Rights_and_Freedoms) https://en.wikipedia.org/wiki/1988_Australian_referendum_(Ri... [1] https://en.wikipedia.org/wiki/Toonen_v._Australia https://en.wikipedia.org/wiki/Toonen_v._Australia [2] https://en.wikipedia.org/wiki/Charter_of_Human_Rights_and_Responsibilities_Act_2006 https://en.wikipedia.org/wiki/Charter_of_Human_Rights_and_Re...
- pyuser583 3y ago
  Thank you!

skissane 3y ago

Australia's constitution doesn't have a Bill of Rights, yes. They tried to introduce one in 1988, but it failed in a referendum [0] However, it isn't true that it contains no individual rights. Expressly, it grants three federal rights (meaning they don't bind the states, only the federal government): religious freedom, trial by jury, and compensation on just terms in cases of expropriation / eminent domain. It also expressly grants two rights which do bind both state and federally: right to interstate free trade, and prohibition of discrimination based on state of residence. Furthermore, the High Court of Australia has read certain rights as "implicit" in its text, most famously the "implied right to political communication", which is a weaker version of the US First Amendment (since it only applies in political matters, not purely artistic expression). It also ruled that bills of attainder are unconstitutional – not on the grounds of individual rights, rather because they violate the separation of powers doctrine (determining the guilt of individuals is the exclusive competence of the judiciary, not the legislature). So it isn't true that the Australian constitution has zero protection for individual rights. It is true that those protections are much weaker than under the US federal constitution. However, there are also non-constitutional protections for human rights. For example, Australia has banned the death penalty nationwide. States cannot legally reintroduce it even if they wanted to. This is because Australia ratified an international treaty banning the death penalty (Second Optional Protocol to the ICCPR). And then there is a provision in the Australian constitution which permits federal legislation to enforce a treaty, and so the Australian Parliament used that to ban the states from having a death penalty–at the time of the federal ban, they'd all already repealed it anyway. It isn't constitutionally entrenched – there is nothing legally stopping a future federal Parliament from repealing that law - although in practice that seems very unlikely. So one could argue this is a case in which Australian law gives people more rights than US law does (the right not to be executed). Another example is when, in 1994, the federal Parliament legalised homosexuality nationwide, overturning the state of Tasmania's criminalisation of it. This was also done under the treaty / external relations power, in response to a UN Human Rights Committee decision that Tasmania's criminalisation of it violated the ICCPR [1]. The same procedure means the federal Parliament can enforce any other future decisions by human rights treaty bodies against the states – if there is political will to do so. Also, just like the US, state laws and constitutions can grant you additional rights on top of the federal ones. For example, the state of Victoria has a human rights charter [2] although that is not part of the state constitution, just ordinary legislation; and it does not grant courts power to strike down legislation, but it does say courts must interpret other legislation (wherever possible) to make it compatible with the charter. [0] https://en.wikipedia.org/wiki/1988_Australian_referendum_(Rights_and_Freedoms) https://en.wikipedia.org/wiki/1988_Australian_referendum_(Ri... [1] https://en.wikipedia.org/wiki/Toonen_v._Australia https://en.wikipedia.org/wiki/Toonen_v._Australia [2] https://en.wikipedia.org/wiki/Charter_of_Human_Rights_and_Responsibilities_Act_2006 https://en.wikipedia.org/wiki/Charter_of_Human_Rights_and_Re...

pyuser583 3y ago
Thank you!