Human Rights in Australian Domestic Law
Australia doesn’t have a Bill of Rights, and so human rights have multiple sources including the
Australian Constitution, common law, and statute law (of the Commonwealth, states and territories).
After they have been negotiated and formed, states indicate their agreement to international treaties
by signing them. These treaties are non-binding, but morally obliges a state to act in spirit of the
treaty, unless they are ratified (where a state formally accepts the treaty, making it legally binding).
Some countries have monist systems where ratification is unnecessary, meaning any international
agreement has a legally binding effect as if it were an Act of Parliament. France and the Netherlands
both have a monist system.
In contrast, Australia and the UK are examples of dualist systems, where international instruments
must be enacted into domestic legislation before they have legal effect. For example, when Australia
ratified the Rome Statute of the International Criminal Court in 2002, the Commonwealth Parliament
simultaneously passed the International Criminal Court Act 2002 (Cth) and the International Criminal
Court (Consequential Amendments) Act 2002 (Cth) to enact the provisions of the treaty into
Australian law.
The Role of The Australian Constitution
The Australian Constitution has 2 fundamental roles in regards to the protection of human rights:
1. It defines the australian system of government through which human rights are recognised,
including the separation of powers* and division of powers**.
2. It sources some specific human rights
The Separation of Powers
The separation of powers is crucial in preventing the abuse of power by separating the powers of the
judicature (courts that interpret and apply the law), the executive (government, including ministers
and agencies) and legislature (elected lawmakers in Parliament). The separation of powers is
governed by section I-III of the Constitution, describing each section respectively.
Australia, being a Westminster system, doesn’t have a strict separation between the executive and
legislature, as it allows ministers to sit in parliament as part of the executive when making delegated
legislation. However, maintaining a separation between the judicature and two other branches is
essential (that it be uninvolved with the ‘political’ branches). The independence of the courts allows
for:
● The rule of law: it ensures all people are subject to the law equally, including the government.
● Ensures rights and liberties are protected from abuse of power
● Enables the judiciary to strike down any legislation that it deems incompatible with the rights
and limitations of the Constitution.
The Division of Powers
Australia doesn’t have a Bill of Rights, and so human rights have multiple sources including the
Australian Constitution, common law, and statute law (of the Commonwealth, states and territories).
After they have been negotiated and formed, states indicate their agreement to international treaties
by signing them. These treaties are non-binding, but morally obliges a state to act in spirit of the
treaty, unless they are ratified (where a state formally accepts the treaty, making it legally binding).
Some countries have monist systems where ratification is unnecessary, meaning any international
agreement has a legally binding effect as if it were an Act of Parliament. France and the Netherlands
both have a monist system.
In contrast, Australia and the UK are examples of dualist systems, where international instruments
must be enacted into domestic legislation before they have legal effect. For example, when Australia
ratified the Rome Statute of the International Criminal Court in 2002, the Commonwealth Parliament
simultaneously passed the International Criminal Court Act 2002 (Cth) and the International Criminal
Court (Consequential Amendments) Act 2002 (Cth) to enact the provisions of the treaty into
Australian law.
The Role of The Australian Constitution
The Australian Constitution has 2 fundamental roles in regards to the protection of human rights:
1. It defines the australian system of government through which human rights are recognised,
including the separation of powers* and division of powers**.
2. It sources some specific human rights
The Separation of Powers
The separation of powers is crucial in preventing the abuse of power by separating the powers of the
judicature (courts that interpret and apply the law), the executive (government, including ministers
and agencies) and legislature (elected lawmakers in Parliament). The separation of powers is
governed by section I-III of the Constitution, describing each section respectively.
Australia, being a Westminster system, doesn’t have a strict separation between the executive and
legislature, as it allows ministers to sit in parliament as part of the executive when making delegated
legislation. However, maintaining a separation between the judicature and two other branches is
essential (that it be uninvolved with the ‘political’ branches). The independence of the courts allows
for:
● The rule of law: it ensures all people are subject to the law equally, including the government.
● Ensures rights and liberties are protected from abuse of power
● Enables the judiciary to strike down any legislation that it deems incompatible with the rights
and limitations of the Constitution.
The Division of Powers
