Quotes and examples – Rights


Robert Menzies

To live in a Common Law country is the best guarantee of the rights of the individual

John Howard

Australia’s human rights reputation compared with the rest of the world is quite magnificent

I think Australia has an outstanding human rights record. I think we are an outstandingly tolerant people

Natasha Stott Despoja

As in the US, when it comes to human rights protection in Australia, it is clear that the Parliament giveth and the Parliament taketh away

Brian Burdekin, former Human Rights Commissioner

It is beyond question that our current legal system is seriously inadequate in protecting many of the rights of the most vulnerable and disadvantaged groups in our community

Harry Gibbs

If society is tolerant and rational, it does not need a Bill of Rights. If it is not, no Bill of Rights will preserve it

Mason CJ

Australia’s adoption of a Bill of Rights would bring Australia in from the cold

Janet Albrechtsen

That [Australia being the only Western democracy without a bill of rights] must make us the only remaining Western country that is a true democracy

Tim Wilson (current Human Rights Commissioner)

[By legislating to protect rights] it strips the individual of any basic rights government may choose not to recognise. Human rights are thus converted from a restraint on government power into a gift of government, revokable as it sees fit.

Bob Carr

A bill of rights is an admission of the failure of parliaments, governments and the people to behave in a reasonable , responsible and respectful manner. I do not believe that we have failed.

Express rights

51 xxxi

Telstra v the Commonwealth 2008


Cheatle v the Queen 1993


Cole v Whitfield 1988


Adelaide Company of Jehovah’s Witnesses v Commonwealth 1943


Street v Queensland Bar Association 1989

Implied rights

Freedom of political communication

Australian Capital Television v the Commonwealth 1992

ss 7 and 24

Theophanous v Herald and Weekly Times 1994

Lange v the ABC 1997

Right to legal representation (s 80)

Dietrich v the Queen 1992

 Native title (right upheld by courts)

  • R v Murrell 1834
  • Millirpum v Nabalco 1971
  • Koowarta v Bjelke Petersen 1982
  • Mabo v Queensland 1992
  • Wik peoples v Queensland 1996
  • Native Title Act 1993, amended 1998

Common law rights

Prohibition of searches/entry into private property without a warrant

Coco v the Queen 2004

Right to professional legal privilege

Baker v Campbell 1983

Right to bodily inviolability (esp. of children)

Secretary of the Health Department v JWB and SMB 1992

Statutory rights

Human Rights and Equal Opportunities Act 1986

Racial Discrimination Act 1975

  • Koowarta v Bjelke Peterson 1982
  • Eatock v. Bolt 2011 (re: s 18C/D)

Disability Discrimination Act 1992

  • Finney v. Hills Grammar School 1999
  • (1998 before the HREOC)

 International covenants

Universal Declaration of Human Rights 1948
International Covenant on Civil and Political Rights 1966/1980 Toonen v Australia 1994
International Covenant on Economic, Social and Cultural Rights 1966/1972
Convention relating to the Status of Refugees 1951 Migration Act 1958, M70 v. Immigration Minister 2011 concerning s 198A

 Australia HR issues

Asylum seekers
  • Al-Kateb v Godwin 2004 (indefinite detention)
  • M70 v Immigration Minister 2011 (Malaysian solution)
  • Migration Act 1958
  • Convention relating to the Status of Refugees 1951
  • Anti-Terrorism Act 2005:
    • Especially re. sedition and detention
  • Haneef v Immigration Minister 2004 (12 days)
  • National Security Legislation Amendment Act 2014
  • S 51 xxvi – race laws
  • S 25 – Aboriginals vote
  • S 127 – not counted in census
 Voting rights
  • Commonwealth Franchise Act 1902 – Universal suffrage for everyone over 21 except natives of Australia, Asia etc. who are not entitled to have their names placed on an Electoral roll
  • Commonwealth Electoral Wartime Act 1940 – voting extended to indigenous soldiers posted overseas
  • Commonwealth Electoral Act 1949 – voting extended to all indigenous servicemen/servicewomen. Note that this is solely for C’th Elections – they could not vote in WA, QLD or NT state elections
  • 1962 Amendment to the Electoral Act – voting rights extended to all Aborigines, but not made compulsory
  • 1971 – Neville Bonner fills casual vacancy in the Senate. Retains seat in 1972 election. (QLD)
  • 1984 – voting made compulsory for all Australians.
  • 1998 – Aden Ridgeway elected to Senate (NSW)
  • 2010 – Ken Wyatt becomes first Indigenous MP (Hasluck, WA)
  • 2013 – Nova Peris (NT) becomes first female Indigenous Senator
  • 2013 – Adam Giles becomes NT Chief Minister – first Indigenous HoG.
Stolen generations
  • Aborigines Act 1905 (WA) allowed gov’t officials to remove any half-caste child to a mission, extended to all natives under the age of 21 in 1936. All became wards of the Chief Protector, then AO Neville.
 Northern Territory Intervention
  • Was announced by John Howard in 2007 and continued by Kevin Rudd
  • Suspended the operation of the Racial Discrimination Act 1975
 Bill of Rights arguments

To define is to limit: McGinty v Western Australia 1996 regarding s 41 of Constitution.

Comparison with other countries

The United Kingdom
  • Human Rights Act 1998
    • Read-down provision: s 3
    • Declarations of incompatibility: s 4, 10.
    • 28 declarations made so far: 18 remedied, 1 ignored, 9 appealed
  • Ghaidan v Godwin Mendoza 2004 : Rent Act 1977
  • Campbell v MGN Ltd 2004: – failure of Common Law to protect right to privacy
  • R (Osborn) v Parole Board 2013 – Lord Reed stresses that Common Law can protect rights outside of the HR Act, and relies on it.
  • Constitutional Bill of Rights (1997) but abrogated in 2009
  • PM – Bainimarama, President Iloilo

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