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  • Print publication year: 2009
  • Online publication date: June 2012

2 - Protecting Human Rights


Without a bill of rights, Australians are required to look to other institutions for their human rights protection. The Constitution, parliament and the courts each play a role in this process. The Constitution includes some limited rights provisions, the legislature has passed laws to protect rights in certain areas and the courts have upheld some rights under the common law. However, the idea advanced at the time of federation that these institutions would combine to provide an adequate safeguard against the infringement of human rights by government is now seriously under question. The limitations that exist within and among these institutional arenas mean that they provide, at best, a patchy net of protection through which many minorities slip. Australia's existing human rights framework has not come to terms with important developments of the past 50 years: changing community expectations about the importance of human rights, the dominance of the executive over parliament and the rise of larger and more powerful government. Attempts by each institution, especially the High Court, to interpret the Constitution and the common law to reflect these changes, has led to controversy and conflict between the different branches of Australian government. The effort to bring the international human rights regime to bear in national human rights debates has further complicated the scene and resulted in rights seekers becoming even more confused about where to look for protection.

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Attorney-General, , 2008a. ‘Human Rights and Equal Opportunity Commission Australia and International Human Rights: Coming in from the Cold’. Ministerial Speech. Accessed online at, 6 June 2008.
Attorney-General, 2008b. ‘Rudd Government Proposes Ratification of UN Disabilities Convention’. Media release. Accessed online at, 6 June 2008.
Attorney-General, 2007. Acting on Conscience: How can we responsibly mix law, religion and politics?St Lucia, Queensland University Press.
Attorney-General, 1998. Legislating Liberty: A bill of rights for Australia?St Lucia, Queensland University Press.
Brown, A. J., 2006. ‘The Constitution We Were Meant to Have: Re-examining the origins and strength of Australia's unitary political traditions.’ Paper in Democratic Experiments: Lectures in the Senate Occasional Lecture Series 2004–2005'. Papers on Parliament, 44, January 2006: 41–65.
Callinan, I., 2005. ‘International Law and Australian Sovereignty.’ Quadrant. July–August: 9–17.
Campbell, T., 2001. ‘Democratising Human Rights.’ In Human Rights in Philosophy and Practice, eds Burton, M. Leisnet and Campbell, Tom D.. Dartmouth: Ashgate.
Charlesworth, H., 2002. Writing in Rights: Australia and the Protection of Human Rights. Sydney: UNSW Press.
Charlesworth, H. 2006. Human Rights: Australia versus the UN, Democratic Audit of Australia, Discussion Paper 22/06.
Charlesworth, H.Chiam, Madeleine, Hovell, Devika and Williams, George. 2006. No Country is an Island: Australian and international law. Sydney: UNSW Press.
Chesterman, John and Galligan, Brian, 1997. Citizens Without Rights: Aborigines and Australian Citizenship. Cambridge: Cambridge University Press.
Chiam, Madelaine, 2004. ‘Evaluating Australia's Treaty Making Process.’ Public Law Review, 15: 265–9.
Doyle, John and Wells, Belinda, 1999. ‘How Far Can the Common Law Go Towards Protecting Human Rights?’ In Promoting Human Rights Through Bills of Rights: Comparative Perspectives, ed. Alston, Phillip. Oxford: Oxford University Press.
Evans, Simon and Evans, Carolyn, 2007. ‘Australian Parliaments and the Protection of Human Rights’. Papers on Parliament 47, July. Canberra: Department of the Senate.
Evatt, Elizabeth, 2001. ‘Australia's Performance in Human Rights’. Alternative Law Journal, 26(1): 11–16.
Galligan, Brian, 1995. ‘Parliamentary Responsible Government and the Protection of Rights.’ In The Australian Political System, eds Lovell, David W., McAllister, Ian, Mayley, William and Kukathas, Chandran. Melbourne: Longman.
Gelber, Katharine, 2005. ‘High Court Review 2004: Limits on the Judicial Protection of Rights.’ Australian Journal of Political Science, 40(2): 307–22.
Goot, Murray and Rowse, Tim, 2007. Divided Nation? Indigenous Affairs and the Imagined Public. Melbourne: Melbourne University Publishing.
Haller, Rochelle L., 2001. ‘Australia's Cold-Shoulder: Setting a Dangerous Precedent for Human Rights Violators.’ New York Law School Journal of Human Rights, 17: 937–41.
Hamilton, Clive and Maddison, Sarah, 2007. ‘Dissent in Australia’ In Silencing Dissent: How the Australian Government is Controlling Public Opinion and Stifling Debate, eds Hamilton, Clive and Maddison, Sarah. Sydney: Allen & Unwin.
Hill, Lisa, 2002. ‘On the Reasonableness of Compelling Citizens to Vote: The Australian Case.’ Political Studies, 50(1): 80–101.
Hill, Lisa 2004. ‘Compulsory Voting in Australia: A Basis for a “Best Practice” Regime’, Federal Law Review, 32(3): 479–97.
Hill, Lisa and Jonathon, Louth, 2005. ‘Compulsory Voting in Australia: Turnout With and Without It.’ Australian Review of Public Affairs, 6(1): 25–37.
Horrigan, Bryan, 2006. ‘Improving Legislative Scrutiny of Proposed Laws to Enhance basic Rights, Parliamentary Democracy, and the Quality of Law Making.’ In Protecting Rights Without a Bill of Rights, eds Campbell, Tom, Goldsworthy, Jeffrey and Stone, Adrienne. Aldershot: Ashgate.
Hovell, Devika, 2003. ‘The Sovereignty Stratagem: Australia's response to UN human rights treaty bodies.’ Alternative Law Review, 28(6): 297–301.
,Human Rights and Equal Opportunity Commission (HREOC), 2007. Social Justice Report. Accessed online at, 26 August 2008.
,Human Rights and Equal Opportunity Commission (HREOC) 2008. Reports to the Minister under the HREOCA. Accessed online at, 15 May 2008.
Kildea, Paul and Gelber, Katharine, 2007. ‘High Court Review 2006: Australian Federalism-Implications of the WorkChoices Decision.’ Australian Journal of Political Science, 42(4): 649–64.
Kinley, David, 1998. Human Rights in Australian Law: Principles, practice and potential. Sydney: Federation Press.
Kirby, Michael, 1999. ‘Domestic Implementation of Human Rights Norms.’ Australian Journal of Human Rights, 27: 1–13.
Lacey, Wendy, 2001. ‘In the Wake of Teoh: Finding an Appropriate Government Response.’ Federal Law Review, 29(3): 219–40.
Lynch, Andrew, 2006. ‘Legislating with Urgency – The Enactment of the Anti-Terrorism Act [No. 1] 2005’. Melbourne University Law Review, 31: 747–81.
Maddox, Graham, 1996. Australian Democracy in Theory and Practice. 3rd edn. Melbourne: Longman.
Malbon, Justin, 2002. ‘Avoiding the Hindmarsh Island Bridge Disaster: Interpreting the race power.’ Flinders Journal of Law Reform, 6(1): 44–60.
Mason, Anthony, The Honourable Justice, 1998. ‘The Role of the Judiciary in Developing Human Rights Law in Australia.’ In Human Rights In Australian Law, ed. Kinley, David. Sydney: Federation Press.
Meagher, Roderick, The Honourable Justice, 1999. ‘Civil Rights and Other Impediments to Democracy.’ Eleventh Conference of the Samuel Griffith Society. Melbourne, 9–11 July.
,New South Wales Council for Civil Liberties, 2008. Does Australia violate Human Rights?. Accessed online at, 2 June 2008.
Omar, Imtiaz, 1995. ‘Darkness On The Edge Of Town: The High Court and Human Rights in the Brandy Case.’ Australian Journal of Human Rights, 8: 115–26.
O'Neil, Nick, Rice, Simon and Douglas, Roger, 2004. Retreat from Injustice: Human Rights Law in Australia. 2nd edn. Sydney: Federation Press.
Orr, Graeme, Mercurio, Bryan and Williams, George, 2002. ‘Australian Electoral Law: A Stocktake.’ Election Law Journal, 2(3): 383–402.
Otto, Diane, 2001. ‘From reluctance to exceptionalism: The Australian Approach to Domestic Implementation of Human Rights.’ Alternative Law Review, 26(5): 219–22.
Patapan, Haig, 2000. Judging Democracy: The New Politics of the High Court of Australia. Cambridge: Cambridge University Press.
Patapan, Haig 2003. ‘High Court Review 2002: The Least Dangerous Branch.’ Australian Journal of Political Science, 38(2): 299–311.
,Public Interest Advocacy Centre, 2008. ‘Landmark Cases.’ Accessed online at, 20 October.
Saunders, Cheryl, 2002. ‘Protecting Rights in Common Law Constitutional Systems: A framework for a comparative study.’ Victoria University Wellington Law Review, 33: 83–112.
Sidoti, Chris and Wilke, Meredith, 2000. ‘Human Rights in Australia: The Role and Perspective of the Human Rights and Equal Opportunity Commission.’ In The Politics of Australian Society: Political Issues for the New Century, eds Boreham, Paul, Geoffrey, PaulRichard Hall, Stokes. Melbourne: Longman.
Smith, Stephen, The Honourable and McClelland, Robert, The Honourable, 2008. ‘Re-engagement with United Nations on Torture.’ Media release. Office of the Attorney-General for Australia. Accessed online at, 6 June 2008.
Solomon, David, 1999. The Political High Court: How the High Court Shapes Politics. Sydney: Allen & Unwin.
Solomon, David 1995. ‘What's Wrong With the High Court Playing a Significant Political Role.’ In The Australian Political System, eds Lovell, David W., McAllister, Ian, Mayley, William and Kukathas, Chandran. Melbourne: Longman.
‘Status of Ratifications of the Principal International Human Rights Treaties,’ 2004. Office of the United Nations High Commissioner for Human Rights. Accessed online at, 18 June 2008.
Tucker, D. F. B., 1997. ‘Natural Law or Common Law?: Human Rights in Australia.’ In Rethinking Human Rights, eds Galligan, Brian and Sampford, Charles. Sydney: Federation Press.
Uhr, John, 2006. ‘The Performance of Australian Legislatures in Protecting Rights.’ In Protecting Rights Without a Bill of Rights, eds Campbell, Tom, Goldsworthy, Jeffrey and Stone, Adrienne. Aldershot: Ashgate.
Williams, George, 2002. Human Rights Under the Australian Constitution. Melbourne: Oxford University Press.
Winterton, George, 2006. ‘An Australian Rights Council.’ In Protecting Rights Without a Bill of Rights, eds Campbell, Tom, Goldsworthy, Jeffrey and Stone, Adrienne. Aldershot: Ashgate.
Al-Kateb v Godwin [2004] HCA 37.
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
Dietrich v R (1992) 177 CLR 292.
Kruger v Commonwealth (1997) 190 CLR 1.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
Levy v Victoria (1997) 189 CLR 579.
Mabo v Queensland (No. 2) [1992] HCA 23.
McGinty v Western Australia (1996) 186 CLR 140.
Minister for Immigration v Teoh [1995] HCA 20.
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.
Re Woolleys [2004] HCA 49.
Wik Peoples v Queensland [1996] HCA 40.