Australian Bill of rights Collated by Mark M Aldridge
"Australia is the only Western country with neither a constitutional nor legislative bill of rights"
We do not have much in the way of any written rights, the constitution does provide entitlements, but even those get a hammering by our political representatives, we do have common law rights, but who knows exactly what they are, and the truth is, it is more about the best lawyer wins rather than the Innocent party, and as for the constitution, who can afford a trip to the High court, let alone battle in such an arena?
Although the Australian Constitution does not contain a Bill of Rights, it does guarantee some important freedoms. Most significantly.
- section 80 guarantees the right to trial by jury (although the High Court has severely limited the protection offered by this provision(5))
- section 116 provides for a range of religious freedoms, including the right to engage in the free exercise of any religion
- section 117 prohibits the imposition of 'any disability or discrimination' on account of State residence
- section 92 provides that 'trade, commerce and intercourse among the States ... shall be absolutely free', and
- as a consequence of section 51(xxxi), the Commonwealth may only acquire property on 'just terms'.
It is apparent from this list that the few rights that are listed in the Constitution are scattered about the text and are ad hoc rather than comprehensive.
The result is that many basic rights receive no constitutional protection.
This is obvious from a quick cross-reference between the Australian Constitution and other instruments, such as the Canadian Charter of Rights and Freedoms 1982. For example, the text of the Australian Constitution does not include anything amounting to a freedom from discrimination on the basis of sex(6) or race, and, while the Constitution has been interpreted to protect freedom of political communication,(7) it lacks a more general right of free speech.
"The Constitution does not even contain an express guarantee of the right to vote", In 2010 while I was in the CODR to defend your right to a free and informed vote, the Labor party barristers and the crown solicitors for the electoral commission, argued the people have no common-law right to vote, as it had been taken by parliament, I say they were wrong, but that is for the high court, anyone have a spare $500,000?
Legislation continues to be written that takes away the rights we assume we had, I say give all Australians a bill of rights, and teach it in the schools, while we are at it make it retrospective, so here is my "bill of rights collation for Australia" doubt I have it spot on, but lets debate what change is necessary.
This Bill of Rights is the cornerstone of democracy in Australia.
It enshrines the rights of all people in our country and affirms the democratic
values of human dignity, equality and freedoms.
2. The Commonwealth and States must respect, protect, promote and fulfil the rights in the Bill of Rights.
3. The rights in the Bill of Rights are subject to the limitations
contained or referred to in section 36, or elsewhere in the Bill.
All Acts of Parliament and supporting legislation must respect the
rights of all Australian citizens and comply with this bill of rights, all past
Acts of parliament will be deemed invalid where a conflict with this bill
The Bill of Rights applies to all law, and binds the legislature, the executive,
the judiciary and all organs of state.
A provision of the Bill of Rights binds a natural or a juristic
person if, and to the extent that, it is applicable, taking into account the
nature of the right and the nature of any duty imposed by the right.
3. When applying a
provision of the Bill of Rights to a natural or juristic person in terms of
subsection (2), a court
a. in order to give
effect to a right in the Bill, must apply, or if necessary develop, the common
law to the extent that legislation does not give effect to that right; and
b. may develop rules of
the common law to limit the right, provided that the limitation is in
accordance with section 30(1).
4. A juristic person is
entitled to the rights in the Bill of Rights to the extent required by the
nature of the rights and the nature of that natural/juristic person.
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative and other
measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth.
No person may unfairly
discriminate directly or indirectly against anyone on one or more grounds in
terms of subsection (3). National legislation must be enacted to prevent or
prohibit unfair discrimination.
Discrimination on one or more of the grounds listed in subsection
(3) is unfair unless it is established that the discrimination is fair.
4. Human dignity
Everyone has inherent dignity and the right to
have their dignity respected and protected.
Everyone has the right to life.
6. Freedom and security of the person
1. Everyone has the right
to freedom and security of the person, which includes the right
a. not to be deprived of
freedom arbitrarily or without just cause;
b. not to be detained
c. to be free from all
forms of violence from either public or private sources;
d. not to be tortured in
any way; and
not to be treated or punished in a cruel, inhuman or degrading
2. Everyone has the right
to bodily and psychological integrity, which includes the right
a. to make decisions
b. to security in and
control over their body; and
c. not to be subjected to
medical or scientific experiments without their informed consent.
7. Slavery, servitude and forced labour
No one may be subjected to slavery, servitude
or forced labour.
8. Privacy Everyone has the right to privacy, which
includes the right not to have
a. their person or home
b. their property
c. their possessions
d. the privacy of their
9. Freedom of religion, belief and opinion
Everyone has the right to freedom of conscience, religion,
thought, belief and opinion.
2. Religious observances
may be conducted at state or state-aided institutions, provided that
a. those observances
follow rules made by the appropriate public authorities;
b. they are conducted on
an equitable basis; and
attendance at them is free and voluntary.
a. This section does not
prevent legislation recognising
i. marriages concluded under any tradition, or a system of religious,
personal or family law; or
ii. systems of personal and family law under any tradition, or adhered
to by persons professing a particular religion.
b. Recognition in terms
of paragraph (a) must be consistent with this section and the other provisions
of the Constitution.
10. Freedom of expression
1. Everyone has the right
to freedom of expression, which includes
a. freedom of the press
and other media;
b. freedom to receive or
impart information or ideas;
c. freedom of artistic
academic freedom and freedom of scientific research.
Freedom to impart information of public interest.
2. The right in
subsection (1) does not extend to
a. propaganda for war;
b. incitement of imminent
c. advocacy of hatred
that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.
11. Assembly, demonstration, picket and
Everyone has the right, peacefully and
unarmed, to assemble, to demonstrate, to picket and to present petitions.
12. Freedom of association
Everyone has the right to freedom of
13. Political rights
1. Every citizen is free
to make political choices, which includes the right
a. to form a political
b. to participate in the
activities of, or recruit members for, a political party; and
to campaign for a political party or cause.
2. Every citizen has the right to free, fair and regular elections
for any legislative body established in terms of the Constitution.
3. Every adult citizen
has the right
a. to vote in elections
for any legislative body established in terms of the Constitution, and to do so
in secret; and
b. to stand for public
office and, if elected, to hold office.
c. to have the free
choice to cast a vote for those candidates they so choose.
d. to fair and free
information so as to cast an informed vote.
No citizen may be deprived of citizenship.
15. Freedom of movement and residence
Everyone has the right to freedom of movement.
Everyone has the right to leave the Republic.
Every citizen has the right to enter, to remain in and to reside
anywhere in, the Republic.
Every citizen has the right to a passport.
16. Freedom of trade, occupation and
Every citizen has the right to choose their
trade, occupation or profession freely. The practice of a trade, occupation or
profession may be regulated by law.
17. Labour relations
1. Everyone has the right to fair labour practices.
2. Every worker has the
a. to form and join a
b. to participate in the
activities and programmes of a trade union; and
3. Every employer has the
a. to form and join an
employers' organisation; and
to participate in the activities and programmes of an employers'
4. Every trade union and
every employers' organisation has the right
a. to determine its own
administration, programmes and activities;
b. to organise; and
to form and join a federation.
5. Every trade union, employers' organisation and employer has the
right to engage in collective bargaining. National legislation may be enacted
to regulate collective bargaining. To the extent that the legislation may limit
a right in this Chapter, the limitation must comply with section 30(1).
6. National legislation may recognise union security arrangements
contained in collective agreements. To the extent that the legislation may
limit a right in this Chapter, the limitation must comply with section 30(1).
Everyone has the right
a. to an environment that
is not harmful to their health or well-being; and
b. to have the
environment protected, for the benefit of present and future generations,
through reasonable legislative and other measures that
i. prevent pollution and ecological degradation;
ii. promote conservation; and
iii. secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social development.
1. No one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation of property.
2. Property may be
expropriated only in terms of law of general application
a. for a public purpose or in the public interest; and
subject to compensation, the amount of which and the time and
manner of payment of which have either been agreed to by those affected or
decided or approved by a court.
3. The amount of the
compensation and the time and manner of payment must be just and equitable,
reflecting an equitable balance between the public interest and the interests
of those affected, having regard to all relevant circumstances, including
a. the current use of the
b. the history of the
acquisition and use of the property;
c. the market value of
d. the extent of direct
state investment and subsidy in the acquisition and beneficial capital
improvement of the property; and
the purpose of the expropriation.
4. For the purposes of
a. the public interest
includes the nation's commitment to land reform, and to reforms to bring about
equitable access to all Australias natural resources; and
property is not limited to land.
5. The state must take reasonable legislative and other measures,
within its available resources, to foster conditions which enable citizens to
gain access to land on an equitable basis.
6. A person or community whose tenure of land is legally insecure as
a result of past discriminatory laws or practices is entitled, to the extent
provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
7. Parliament must enact
the legislation referred to in subsection (6).
Everyone has the right to have access to adequate housing.
The state must take reasonable legislative and other measures, within
its available resources, to achieve the progressive realisation of this right.
No one may be evicted from their home, or have their home
demolished, without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.
Any Australian citizen has the right to a jury of their peers
regarding dispute of property.
21. Health care, food, water and social
1. Everyone has the right
to have access to
a. health care services,
including reproductive health care;
b. sufficient safe food
and water; and
social security, including, if they are unable to support
themselves and their dependants, appropriate social assistance.
2. The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive realisation of each
of these rights.
No one may be refused emergency medical treatment.
1. Every child has the
a. to a name and a
nationality from birth;
b. to family care or
parental care, or to appropriate alternative care when removed from the family
c. to basic nutrition,
shelter, basic health care services and social services;
d. to be protected from
maltreatment, neglect, abuse or degradation;
e. to be protected from
exploitative labour practices;
f. not to be required or
permitted to perform work or provide services that
i. are inappropriate for a person of that child's age; or
ii. place at risk the child's well-being, education, physical or
mental health or spiritual, moral or social development;
g. not to be detained
except as a measure of last resort, in which case, in addition to the rights a
child enjoys under sections 12 and 35, the child may be detained only for the
shortest appropriate period of time, and has the right to be
i. kept separately from detained persons over the age of 18 years;
ii. treated in a manner, and kept in conditions, that take account of
the child's age;
h. to have a legal
practitioner assigned to the child by the state, and at state expense, in civil
proceedings affecting the child, if substantial injustice would otherwise
i. not to be used directly in armed conflict, and to be protected in
times of armed conflict.
j. When in State or Commonwealth care, such care is to be guaranteed
and said carer to be liable for the child’s well being
A child's best interests are of paramount importance in every
matter concerning the child.
In this section "child" means a person under the age of
1. Everyone has the right
a. to a basic education,
including adult basic education; and
to further education, which the state, through reasonable
measures, must make progressively available and accessible.
2. Everyone has the right
to receive education in the official language in public educational
institutions where that education is reasonably practicable. In order to ensure
the effective access to, and implementation of, this right, the state must
consider all reasonable educational alternatives, including single medium
institutions, taking into account
b. practicability; and
c. the need to redress the results of past racially discriminatory
laws and practices.
3. Everyone has the right
to establish and maintain, at their own expense, independent educational
a. do not discriminate on
the basis of race;
b. are registered with
the state; and
c. maintain standards that are not inferior to standards at
comparable public educational institutions.
4. Subsection (3) does
not preclude state subsidies for independent educational institutions.
24. Language and culture
Everyone has the right to use the language and
to participate in the cultural life of their choice, but no one exercising
these rights may do so in a manner inconsistent with any provision of the Bill
25. Cultural, religious and linguistic
1. Persons belonging to a
cultural, religious or linguistic community may not be denied the right, with
other members of that community
a. to enjoy their
culture, practise their religion and use their language; and
to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.
2. The rights in
subsection (1) may not be exercised in a manner inconsistent with any provision
of the Bill of Rights.
26. Access to information
1. Everyone has the right
of access to
a. any information held
by the state; and
any information that is held by another person and that is
required for the exercise or protection of any rights.
2. National legislation
must be enacted to give effect to this right, and may provide for reasonable
measures to alleviate the administrative and financial burden on the state.
27. Just administrative action
1. Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
2. Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
3. National legislation
must be enacted to give effect to these rights, and must
a. provide for the review
of administrative action by a court or, where appropriate, an independent and
b. impose a duty on the
state to give effect to the rights in subsections (1) and (2); and
c. promote an efficient
28. Access to courts
Everyone has the right to have any dispute
that can be resolved by the application of law decided in a fair public hearing
before a court or, where appropriate, another independent and impartial
tribunal or forum including the right to a jury of their peers.
29. Arrested, detained and accused persons
1. Everyone who is
arrested for allegedly committing an offence has the right
a. to remain silent;
b. to be informed
i. of the right to remain silent; and
ii of the consequences of not remaining silent;
c. not to be compelled to
make any confession or admission that could be used in evidence against that
d. to be brought before a
court as soon as reasonably possible, but not later than i. 48 hours after the arrest; or
ii. the end of the first court day after the expiry of the 48 hours,
if the 48 hours expire outside ordinary court hours or on a day which is not an
ordinary court day;
e. at the first court
appearance after being arrested, to be charged or to be informed of the reason
for the detention to continue, or to be released; and
f. to be released from detention if the interests of justice permit,
subject to reasonable conditions.
2. Everyone who is
detained, including every sentenced prisoner, has the right
a. to be informed
promptly of the reason for being detained;
b. to choose, and to
consult with, a legal practitioner, and to be informed of this right promptly;
c. to have a legal
practitioner assigned to the detained person by the state and at state expense,
if substantial injustice would otherwise result, and to be informed of this
d. to challenge the
lawfulness of the detention in person before a court and, if the detention is
unlawful, to be released;
e. to conditions of
detention that are consistent with human dignity, including at least exercise
and the provision, at state expense, of adequate accommodation, nutrition,
reading material and medical treatment; and
f. to communicate with, and
be visited by, that person's
i. spouse or partner;
ii. next of kin;
iii. chosen religious counsellor; and
i chosen medical practitioner.
3. Every accused person
has a right to a fair trial, which includes the right
a. to be informed of the
charge with sufficient detail to answer it;
b. to have adequate time
and facilities to prepare a defence;
c. to a public trial
before an ordinary court;
d. to have their trial
begin and conclude without unreasonable delay;
e. to be present when
f. to choose, and be
represented by, a legal practitioner, and to be informed of this right
g. to have a legal
practitioner assigned to the accused person by the state and at state expense,
if substantial injustice would otherwise result, and to be informed of this
h. to be presumed
innocent, to remain silent, and not to testify during the proceedings;
i. to adduce and challenge evidence;
j. not to be compelled to
give self-incriminating evidence;
k. to be tried in a
language that the accused person understands or, if that is not practicable, to
have the proceedings interpreted in that language;
l. not to be convicted for an act or omission that was not an offence
under either national or international law at the time it was committed or
m. not to be tried for an
offence in respect of an act or omission for which that person has previously
been either acquitted or convicted;
n. to the benefit of the
least severe of the prescribed punishments if the prescribed punishment for the
offence has been changed between the time that the offence was committed and
the time of sentencing; and
of appeal to, or review by, a higher court.
To be aware of any laws said to breached, prior to an offence
Whenever this section requires information to be given to a
person, that information must be given in a language that the person
Evidence obtained in a manner that violates any right in the Bill
of Rights must be excluded if the admission of that evidence would render the
trial unfair or otherwise be detrimental to the administration of justice.
30. Limitation of rights
1. The rights in the Bill
of Rights may be limited only in terms of law of general application to the
extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including
a. the nature of the
b. the importance of the
purpose of the limitation;
c. the nature and extent
of the limitation;
d. the relation between
the limitation and its purpose; and
less restrictive means to achieve the purpose.
2. Except as provided in
subsection (1) or in any other provision of the Constitution, no law may limit
any right entrenched in the Bill of Rights.
3. Any previous
legislation or law that effects a limit on this bill of rights will be invalid
to the extent of such effects applied.
31. States of emergency
1. A state of emergency
may be declared only in terms of an Act of Parliament, and only when
a. the life of the nation
is threatened by war, invasion, general insurrection, disorder, natural
disaster or other public emergency; and
the declaration is necessary to restore peace and order.
2. A declaration of a
state of emergency, and any legislation enacted or other action taken in
consequence of that declaration, may be effective only
a. prospectively; and
for no more than 21 days from the date of the declaration, unless
the Commonwealth resolves to extend the Declaration. The Parliament may extend
a declaration of a state of emergency for no more than three months at a time.
The first extension of the state of emergency must be by a resolution adopted
with a supporting vote of a majority of the members of the House declaring said
state of emergency. Any subsequent extension must be by a resolution adopted
with a supporting vote of at least 60 per cent of the members of the House. A
resolution in terms of this paragraph may be adopted only following a public
debate in the Assembly.
3. Any competent court
may decide on the validity of
a. a declaration of a
state of emergency;
b. any extension of a declaration
of a state of emergency; or
any legislation enacted, or other action taken, in consequence of
a declaration of a state of emergency.
4. Any legislation
enacted in consequence of a declaration of a state of emergency may derogate
from the Bill of Rights only to the extent that
a. the derogation is
strictly required by the emergency; and
b. the legislation
i. is consistent with the Australia’s obligations under international
law applicable to states of emergency; ii. conforms to subsection (5); and
iii. is published in the national Government Gazette as soon as
reasonably possible after being enacted.
5. No Act of Parliament
that authorises a declaration of a state of emergency, and no legislation
enacted or other action taken in consequence of a declaration, may permit or
a. indemnifying the
state, or any person, in respect of any unlawful act;
b. any derogation from
this section; or
c. any derogation from a
section mentioned in column 1 of the Table of Non-Derogable Rights, to the
extent indicated opposite that section in column 3 of the Table.
Table of Non-Derogable
1 Section Number
Extent to which the right is protected
With respect to unfair discrimination solely on the grounds of
race, colour, ethnic or social origin, sex religion or language
Freedom and Security of the person
With respect to subsections (1)(d) and (e) and (2)(c).
Slavery, servitude and forced labour
With respect to slavery and servitude
With respect to:
- subsection (1)(d) and (e);
- the rights in subparagraphs (i) and (ii) of subsection (1)(g); and
- subsection 1(i) in respect of children of 15 years and younger
Arrested, detained and accused persons
With respect to:
- subsections (1)(a), (b) and (c) and (2)(d);
- the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph
- subsection (4); and
- subsection (5) with respect to the exclusion of evidence if the admission
of that evidence would render the trial unfair.
6. Whenever anyone is
detained without trial in consequence of a derogation of rights resulting from
a declaration of a state of emergency, the following conditions must be
a. An adult family member
or friend of the detainee must be contacted as soon as reasonably possible, and
informed that the person has been detained.
b. A notice must be
published in the national Government Gazette within five days of the person
being detained, stating the detainee's name and place of detention and
referring to the emergency measure in terms of which that person has been
c. The detainee must be
allowed to choose, and be visited at any reasonable time by, a medical
d. The detainee must be
allowed to choose, and be visited at any reasonable time by, a legal representative.
e. A court must review
the detention as soon as reasonably possible, but no later than 10 days after
the date the person was detained, and the court must release the detainee
unless it is necessary to continue the detention to restore peace and order.
f. A detainee who is not
released in terms of a review under paragraph (e), or who is not released in
terms of a review under this paragraph, may apply to a court for a further
review of the detention at any time after 10 days have passed since the previous
review, and the court must release the detainee unless it is still necessary to
continue the detention to restore peace and order.
g. The detainee must be
allowed to appear in person before any court considering the detention, to be
represented by a legal practitioner at those hearings, and to make
representations against continued detention.
The state must present written reasons to the court to justify the
continued detention of the detainee, and must give a copy of those reasons to
the detainee at least two days before the court reviews the detention.
If a court releases a detainee, that person may not be detained
again on the same grounds unless the state first shows a court good cause for
re-detaining that person.
8. Subsections (6) and
(7) do not apply to persons who are not Australian citizens and who are
detained in consequence of an international armed conflict. Instead, the state
must comply with the standards binding on Australia under international
humanitarian law in respect of the detention of such persons.
32. Enforcement of rights
Anyone listed in this section has the right to
approach a competent court, alleging that a right in the Bill of Rights has
been infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights. The persons who may approach a court are -
a. anyone acting in their
b. anyone acting on
behalf of another person who cannot act in their own name;
c. anyone acting as a
member of, or in the interest of, a group or class of persons;
d. anyone acting in the
public interest; and
e. an association acting
in the interest of its members.
33. Interpretation of Bill of Rights
1. When interpreting the
Bill of Rights, a court, tribunal or forum
a. must promote the
values that underlie an open and democratic society based on human dignity,
equality and freedom;
b. must consider
international law; and
may consider foreign law including the UN declaration of human
2. When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must promote the spirit,
purport and objects of the Bill of Rights.
3. The Bill of Rights
does not deny the existence of any other rights or freedoms that are recognised
or conferred by common law, customary law or legislation, to the extent that
they are consistent with the Bill.
introduced at either State or Commonwealth level will be deemed invalid to the
extent that it restricts any rights contained in this bill.
Now lets hope for some debate, this is a collation of several bills around the world with a little Australia added, and I am sure more change is necessary, in fact like our constitution it must be the result of Australians working together through worthy representatives from a grass roots level.
Mark Aldridge Independent Candidate
bill of rights Australia, Bill of Rights Mark Aldridge, BILL OF RIGHTS DEBATE, What are our rights
The 2014 South Australian state election
will elect members to the 53rd Parliament of South Australia
on 15 March 2014. All seats in the House of Assembly
or lower house, whose current members were elected at the 2010 election
, and half the seats in the Legislative Council
or upper house, last filled at the 2006 election
, will become vacant. The 12-year incumbent Australian Labor Party
, currently led by Premier Jay Weatherill
, will be challenged by the opposition Liberal Party of Australia
, currently led by Opposition Leader Isobel Redmond
. The ramsay electorates main contender will be Mark Aldridge Independent
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