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Democratic rights and freedoms

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Australia’s approach to human rights and freedoms        reflects its liberal democratic ideals and a belief in the        inherent dignity and the equal and inalienable rights of all        people, as set out in the Universal Declaration of Human        Rights. Australia played a leading role in the development of        international human rights standards, and is party to six        major UN human rights treaties. Australia also engages        actively in UN human rights mechanisms and supports        developing countries in improving human rights standards,        particularly through providing significant support for the        promotion of democratic institutions.

Promoting a strong, free democracy

Australia’s federal structure, independent judiciary,        robust representative parliamentary institutions and        independent national human rights institution (the Human Rights        and Equal Opportunity Commission) play an integral role in        protecting human rights. They also provide a bulwark        against abuses of power and denials of fundamental        freedoms.

The Australian Government encourages people to learn about        and participate in Australia’s democratic institutions.        Key democratic principles and practices include        responsible government; the separation of legislative,        executive and judicial powers; the observance of constitutional        safeguards; the rule of law; a transparent criminal justice        system; equitably resourced and respected opposition parties;        and a free media. Australia’s strong democratic        institutions are complemented by a number of specific legal        protections for human rights.

Commitment to fair treatment

Human rights are inherent, inalienable, indivisible and        universal. They are the birthright of all people and cannot be        lost or taken away. They are all of equal importance and apply        to all people whatever their race, gender, disability,        language, religion, political or other opinion, national or        social origin, age, property or other status. Observance of        human rights, in Australia and abroad, benefits the security        and prosperity of all nations and individuals. Successive        Australian governments have supported these principles and        systems.

Responsible government

The central features of Australia’s constitutional        system are the doctrines of responsible government and        separation of powers. Under responsible government, the        executive is accountable to the parliament and the parliament        to the people. The doctrine of separation of powers ensures the        separation and independence of the executive and legislative        branches of government from the judiciary. The independence of        the courts, and their separation from the legislative and        executive arms of government, is of great importance in        Australia. Judges, in interpreting and applying the law, act        independently of the government.

Laws are developed by the executive and must be approved by        both houses of parliament. Once a law is passed, the separation        of powers doctrine means parliament and the executive are bound        to accept a decision of the courts about what a particular law        means and how it is to be applied.

Legal review

In Australia, anyone, including the government, can have the        lawfulness of their actions scrutinised in a court of law and        be held accountable for any activity determined to be        inconsistent with the law.

Government policies are implemented by a professional and        apolitical public service. Citizens have the right to be given        reasons for administrative decisions made about them by        government officials, and to have those decisions independently        reviewed through the administrative tribunal system and/or the        courts. There are also ombudsmen and commissions that can        inquire into government decisions and allegations of        misconduct. In addition, a network of parliamentary committees        have mandates to review various spheres of government activity        and legislation.

Constitutional protection

As the highest law in Australia, the Constitution        specifically protects certain rights and freedoms, including        trial by jury in specified circumstances, the free exercise of        any religion, and just terms for acquisition of property. The        Constitution also gives jurisdiction to the High Court of        Australia to hear challenges to the lawfulness of government        decisions.

Australia’s rights and freedoms: legislative        framework

Commonwealth

  • Commonwealth of Australia Constitution Act 1900 (UK)
  • Freedom of Information Act 1982
  • Racial Discrimination Act 1975
  • Sex Discrimination Act 1984
  • Disability Discrimination Act 1992
  • Age Discrimination Act 2004
  • Human Rights and Equal Opportunity Act 1986
  • Human Rights (Sexual Conduct) Act 1994
  • Privacy Act 1988
  • Workplace Relations Act 1996

States and territories

  • Australian Capital Territory: Discrimination Act 1991, Disability Services Act 1991 and Human Rights Act 2004
  • New South Wales: Anti-Discrimination Act 1977 and Disability Services Act 1993 No. 3
  • Northern Territory: Northern Territory Anti-Discrimination Act 1994
  • Queensland: Anti-Discrimination Act 1991
  • South Australia: Equal Opportunity Act 1984 and Racial Vilification Act 1996
  • Tasmania: Tasmanian Anti-Discrimination Act 1998
  • Victoria: Equal Opportunity Act 1995 and Racial and Religious Intolerance Act 2001
  • Western Australia: Equal Opportunity Act 1984

A transparent criminal justice system

It is fundamental to the administration of justice in        Australia that a person accused of a criminal offence is        presumed innocent until proven guilty beyond all reasonable        doubt.

A person can only be detained by police for a limited period        before being either released or charged with an offence and        presented to an independent judicial officer (judge or        magistrate) who decides whether the person may be detained in        custody pending trial. In some cases an initial assessment may        be made by police, with provision for judicial review. The        question of whether to initiate criminal proceedings on serious        charges is determined by an independent office, for example the        Commonwealth Director of Public Prosecutions in the case of        federal offences.

An accused person has the right to a fair trial, including        the right to be informed of the charges laid against them. A        trial must take place before a judicial officer who is        independent of the executive government and legislature.        Generally, a person who is placed on trial for a serious        offence that is punishable by a significant term of        imprisonment has the right to be tried before a jury drawn from        the community. With some exceptions, an individual also cannot        be compelled to provide self-incriminating testimony in        court.

Legal aid services provide assistance and representation to        accused people, subject to a financial means test and other        conditions. A further fundamental principle of the        Australian common law system is the availability of        legal professional privilege.

A right of appeal is available against conviction and        sentence on specified grounds, including that there has been        a miscarriage of justice.

Independent human rights institutions

Human Rights and Equal Opportunity Commission (the        Commission)

The Commission is Australia’s most important        independent national human rights institution. It handles        discrimination and human rights complaints from individuals.        The Commission educates the public on human rights and has the        power to investigate and resolve individual complaints.

As an independent statutory body, the Commission controls        the expenditure of its own budget. It can investigate        complaints against the federal government and its agencies        where there is an alleged breach of federal human rights        legislation or international human rights obligations.

The Commission also investigates and resolves complaints of        unlawful discrimination. Where a complaint cannot be resolved,        the Commission may terminate the complaint and the complainant        may institute proceedings alleging unlawful discrimination in        the Federal Court or the Federal Magistrates Court.

Other institutions

Other institutions that promote and protect human rights in        Australia include anti‑discrimination or equal        opportunity commissions in each state and territory and the        Office of the Federal Privacy Commissioner, which investigates        complaints about interference with an individual’s        privacy under the Privacy Act and related legislation. Some        states and territories also have privacy commissioners. The        federal, state and territory ombudsmen investigate complaints        about the actions and decisions of government departments        and authorities in their jurisdiction.

There are many non-government organisations (NGOs) in        Australia that help promote and protect human rights standards        in public life. The Australian Government pursues positive and        constructive relationships with human rights NGOs,        and consults with them on a regular basis.

Discrimination on grounds of race, gender, disability or        age

Race

Federal, state and territory anti-discrimination laws        provide legal recourse to the victims of racial hatred. The        relevant federal legislation is the Racial Discrimination        Act 1975. Under this legislation, it is unlawful to        discriminate against any person by reason of that        person’s race, colour, descent, or national or ethnic        origin. Such discrimination is prohibited in a number of areas        including access to places and facilities, the provision of        goods and services, employment and advertising.

The Racial Discrimination Act also prohibits racial        vilification on the basis of race, colour, or national or        ethnic origin. ‘Racial vilification’ covers acts        that offend, insult, humiliate or intimidate a person or group        of people. The prohibition is subject to a number of exemptions        that are intended to permit free debate on matters of        legitimate public interest. This helps ensure an appropriate        balance between freedom of expression and protection from        racially offensive behaviour.

Gender

Australia’s Sex Discrimination Act 1984 aims to        eliminate discrimination and sexual harassment on the basis of        gender and aims to promote greater equality in all aspects of        the Australian community.

Disability

The Disability Discrimination Act 1992 makes        disability discrimination unlawful and promotes equal        opportunity for people with disabilities in many aspects of        public life such as employment, education and access to        premises. The Act also protects relatives, friends and others        from discrimination because of their connection to someone with        a disability.

Age

Australia’s Age Discrimination Act 2004 protects individuals from discrimination on the basis of age in        many parts of public life including employment, education,        accommodation and the provision of goods and services.

Freedom of expression, association, assembly, communication        and religion

The rights to freedom of expression, association and        assembly are enshrined in the International Covenant on Civil        and Political Rights, to which Australia is a party. These        rights are subject to limitations that are reasonable and        necessary in a free and democratic society to achieve an        appropriate balance between freedom of expression and        protection of groups and individuals from offensive        behaviour.

The Australian Constitution contains an implied guarantee of        freedom of communication in relation to political matters,        which the High Court has determined is essential to the proper        functioning of Australia’s system of democratic and        representative government. The Freedom of Information Act        1982 gives every person the right to access information in        the possession of the federal government and its authorities,        with exemptions such as Cabinet papers.

Australia’s Constitution prohibits the Australian        Parliament from making any law for establishing any religion,        imposing any religious observance, or prohibiting the free        exercise of any religion. From the earliest days of European        settlement, religious diversity has been a fact, and religious        freedom has been a part, of Australian life. While Australia is        predominantly a Christian country, there are large communities        that practise Islam, Buddhism, Judaism and Hinduism. Australia        also has a rich history of Indigenous traditions and beliefs,        as well as a diversity of other faiths. Australia is a liberal,        multicultural society, and the Australian Government practises        constant vigilance, through the rigorous investigation of        complaints by statutory bodies, to ensure the human right to        free religious expression is protected for all community        members.

Pursuing Australia’s human rights objectives        internationally

Australia is fully committed to promoting international        human rights standards. The Australian Government considers        human rights to be a subject of legitimate international        concern and rejects attempts to portray this concern as        interference in the internal affairs of other nations.        Australia’s formal bilateral Human Rights Dialogues with        countries such as China, Vietnam and Laos enable it to raise        human rights issues with their senior government officials.        Associated technical cooperation initiatives, which are also        pursued in other countries (especially Indonesia and numerous        countries in the South Pacific), allow Australia to provide        practical human rights training to judges, lawyers and prison        and government officials. Australia supports developing country        NGOs, as well as national and regional human rights        institutions, such as the Asia–Pacific Forum of National        Human Rights Institutions, that promote and protect human        rights in developing countries.

Australia actively engages in human rights issues within the        United Nations system, including at the Human Rights Council        and the UN General Assembly Third Committee. As a party to six        of the major multilateral human rights instruments, Australia        regularly reports to the United Nations on its compliance with        international human rights obligations (see fact sheet Australia and the United Nations).

Key facts

  • Australia played a leading role in the development of the international human rights system and is a party to six major UN human rights treaties. Australia is currently proceeding with ratification of the UN Convention on the Rights of Persons with Disabilities.
  • Australia’s international human rights obligations are implemented in state, territory and federal legislation.
  • Australia’s Constitution protects certain democratic rights and freedoms.
  • Australia has formal and informal mechanisms to address alleged human rights breaches. For example, the Human Rights and Equal Opportunity Commission administers a statutory system for dealing with discrimination and human rights complaints from individuals.

Further information

Attorney-General’s Department

  • Australian values and law
  • Centre for Democratic Institutions
  • Department of Foreign Affairs and Trade
  • Human Rights and Equal Opportunity Commission