Australia is the only Western democracy not to have a Human Rights Act in its legal system or constitution. Instead, Australia has a patchwork of rights, leaning on individual legislation, such as the Anti-Discrimination Act of 1977, implied rights, common law, and state-by-state legislation. As noted by the Australian Human Rights Commission,  “There are five explicit individual rights in the Constitution. These are the right to vote (Section 41), protection against acquisition of property on unjust terms (Section 51 (xxxi)), the right to a trial by jury (Section 80), freedom of religion (Section 116) and prohibition of discrimination on the basis of State of residency (Section 117).” In addition, the High Court has found that more rights for individuals may be implied by the language and structure of the Constitution. For example, in 1992 the High Court decided that Australia’s form of parliamentary democracy requires a degree of freedom for individuals to discuss and debate political issues. Nonetheless, Australia is left with what has been described as a “patchy” system of rights protection.

Australia’s human rights protection has led to several alleged human rights breaches, including those exposed by Royal Commissions into the following subject areas:  Aged Care Quality and Safety; Violence, Abuse, Neglect and Exploitation of People with Disability; the Protection and Detention of Children in the Northern Territory; and Aboriginal Deaths in Custody. As recently as this year, the Banksia Hill Detention Centre was reported to have treated youth offenders with “discrimination, physical assault, unlawful imprisonment, and excessive use of force.” The reports from Banksia Hill follow other recorded instances of abuse in Australian youth detention centres. The National Children’s Commissioner has described the problem as “a national systematic failure to protect children.”

This year, there have also been calls for a Royal Commission into the treatment of asylum seekers on Nauru and Papua New Guinea. Since 2013, the Australian government has forcibly transferred more than 3,000 asylum seekers who sought to reach Australia by boat to offshore processing camps in Papua New Guinea and Nauru. These calls have been led by Behrouz Boochani, a Kurdish-Iranian refugee who was detained in an Australian-run detention centre. Boochani said, “Forty people have been killed on Manus Island and Nauru, hundreds of people have been damaged.” Boochani’s two books, No Friend But the Mountains and Freedom, Only Freedom, chronicle his experiences as a detainee. As Human Rights Watch reported, “Under international human rights law, immigration detention should not be used as punishment, but rather should be an exceptional measure of last resort.”

Australia’s lack of strong human rights protection has also impacted the Indigenous community. The Indigenous community comprises only 3% of the population, but comprises 32% of the average daily Australian prisoner population. Indigenous people are not only incarcerated at disproportionate rates but also die as a result of their incarceration. The Royal Commission into Aboriginal Death in Custody investigated the 99 deaths that occurred in custody between 1987 and 1991. The Guardian reported that at least 474 Indigenous people have died in custody since the end of the Royal Commission into Aboriginal Deaths in Custody in 1991. As the Indigenous Australians Minister stated, “For far too long there has been a lack of trusted information available when a death in custody occurs. . . . Having more timely data is a key step towards better-informed early intervention and prevention strategies to reduce First Nations deaths in custody and improve justice outcomes.”

Australia’s current reliance on Royal Commissions to deal with human rights breaches has limited effect, with recommendations often hard to adopt and change slow to occur. The flaws in the current system have led to recent calls for a national Human Rights Act, by bodies such as the Australian Human Rights Commission, Law Council of Australia, and the Human Rights Law Centre. As CEO of the Human Rights Law Centre Caitlin Reiger stated: “For too long, people in Australia whose human rights have been violated have been unable to take effective action. Numerous Royal Commissions have highlighted repeated and widespread examples of human rights breaches particularly in the aged care sector and for people with disability. The Charter will give people power to take action if their rights are breached.”

The Australian Human Rights Commission released a report on A Human Rights Act for Australia. That report noted that Australia is a signatory to major international human rights treaties: the International Convention on the Elimination of All Forms of Racial Discrimination of 1965; the International Covenant on Economic, Social and Cultural Rights of 1966; the  International Covenant on Civil and Political Rights of 1966; the Convention on the Elimination of All Forms of Discrimination against Women of 1979; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984; the Convention on the Rights of the Child of 1989; and the Convention on the Rights of Persons with Disabilities of 2008. The Australian Human Rights Commission report explained that a national Human Rights Act would implement Australia’s obligations in these treaties “in a straightforward manner with a less cumbersome enforcement mechanism” than what currently exists in Australia’s patchwork approach.

The report continued: “The key function of the Human Rights Act will be to coherently implement Australia’s international obligations domestically, and to reflect and codify fundamental common law rights. It would provide the ‘bedrock of rights’ in Australian law.” This includes rights derived from the aforementioned major international human rights treaties.

The Law Council’s National Human Rights Committee proposed that a human rights act should address the following: (1) the rights to be protected; (2) who should receive protection; (3) the importance of an interpretive clause; (4) statements of compatibility; (5) duties on public authorities; (6) an independent direct right of action; (7) remedies; and (8) procedural matters, especially costs provisions. The Law Council of Australia also noted the difficulty in achieving widespread change.

“We are not suggesting that a Human Rights Act is an instant cure to all social ills; however, a human rights ethos – established across the public and private sectors, across aged care, disability services, childcare, education, health and detention facilities – may curb the systemic need for what can seem like almost rolling Royal Commissions, investigating complex, wide-ranging social justice failures in Australia,” the president of The Law Council of Australia said.

On the local level, two states and one territory have now enacted a Human Rights Act. The Australian Capital Territory, Victorian and new Queensland charters protect civil, political, and cultural rights. Although action has been taken on the local level, coherence and coverage of all of Australia’s international obligations under treaties is yet to be achieved.

The vision for Australia to protect human rights, as detailed by the Law Council of Australia and Australian Human Rights Commission, is one of unity, international law integration, and guidance from neighbouring international jurisdictions and jurisprudence. The vision seeks to change Australia’s narrative whereby human right breaches like those found in offshore asylum seeker processing, mistreatment within youth detention centres, and indigenous deaths in custody may end in this generation.