Some rights, some of the time The state of human rights across Australia

These mechanisms can be sorely tested in extraordinary times, including during a pandemic. Such a time raises questions about how well governments can protect the community from infection while simultaneously respecting individual rights.

In this article, we set out the state of human rights law in Australia. We also examine two issues related to the COVID-19 pandemic: the provisions of the Biosecurity Act and First Nations responses to the pandemic. We then ask whether Australian law needs reform.

Australia does not have a national Charter or Bill of human rights… the only other countries in the world without a Charter are the Vatican City and Brunei.

Human rights protection in Australia

People are often surprised to learn that Australia does not have a national Charter or Bill of human rights. This surprise is understandable: Australia is the only democratic country in the world without such a national law. Indeed, the only other countries in the world without a Charter are the Vatican City and Brunei.

In addition, Australia has very limited rights protection in the Constitution. The free exercise of religion in section 116 of the Constitution is a notable example, as is the ‘freedom of political communication’ that the High Court has said is implied in the Constitution. Other rights are protected in legislation, such as the Commonwealth Racial Discrimination Act, or legislation at the level of the states and territories. Additional rights are protected by the common law. However, without a comprehensive and federal Charter of rights, rights protection in Australia is scarce and patchy.

This national gap is particularly unusual because Australia is generally seen to be a proponent of human rights (with some important exceptions, such as the treatment of asylum seekers). Australia is a party to the major international conventions on human rights – including the Universal Declaration of Human Rights (1948), adopted by the United Nations after the atrocities of the Second World War