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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Parliamentary
Charter of Rights and Freedoms Bill 2001
No.
, 2001
(Senator
Lees)
A Bill for an Act relating to the
human rights and fundamental freedoms of all Australians and all people in
Australia, and for related purposes
Contents
A Bill for an Act relating to the human rights and
fundamental freedoms of all Australians and all people in Australia, and for
related purposes
The Parliament of Australia enacts:
This Act may be cited as the Parliamentary Charter of Rights and
Freedoms Act 2001.
(1) Subject to subsection (2), this Act commences on the day on which it
receives the Royal Assent.
(2) Section 8 commences on the third anniversary of the day on which this
Act receives the Royal Assent.
The objects of this Act are:
(a) to promote universal respect for, and observance of, human rights and
fundamental freedoms for all persons without discrimination; and
(b) to that end, to affirm Australia’s commitment to the
International Covenant on Civil and Political Rights by enacting a Parliamentary
Charter of Rights and Freedoms; and
(c) to ensure that any person whose rights or freedoms as set out in the
Parliamentary Charter of Rights and Freedoms are infringed by or under any law
in relation to which that Charter operates has an effective remedy; and
(d) to promote, enhance and secure, as paramount objectives, the freedom
and dignity of the human person, equality of opportunity for all persons and
full and free participation by all Australians in public affairs and public
debate.
(1) In this Act, unless the contrary intention appears:
act means an act done:
(a) by or on behalf of the Commonwealth or of a State or a Territory;
or
(b) by or on behalf of an authority of the Commonwealth or of a State or a
Territory;
being an act done:
(c) in relation to an Australian citizen—within or outside
Australia; or
(d) in any other case—within Australia;
Australia includes the external Territories.
authority means:
(a) in relation to the Commonwealth:
(i) a body (whether incorporated or unincorporated) established for a
purpose of the Commonwealth by or under a Commonwealth law; or
(ii) an incorporated company over which the Commonwealth is in a position
to exercise control; or
(iii) a person holding or performing the duties of an office or
appointment established or made under a Commonwealth law or by the
Governor-General or a Minister of State of the Commonwealth; or
(iv) a body, or a person holding or performing the duties of an office or
appointment, that is declared by the regulations to be an authority of the
Commonwealth for the purposes of this Act;
(b) in relation to a State:
(i) a body (whether incorporated or unincorporated) established for a
purpose of the State by or under a law of the State; or
(ii) an incorporated company over which the State is in a position to
exercise control; or
(iii) a person holding or performing the duties of an office or
appointment established or made under a law, or by the Governor or a Minister,
of the State; or
(iv) a local government body in the State; or
(v) a body, or a person holding or performing the duties of an office or
appointment, that is declared by the regulations to be an authority of the State
for the purposes of this Act; and
(c) in relation to a Territory:
(i) a body (whether incorporated or unincorporated) established for a
purpose of the Territory by or under a Territory law; or
(ii) an incorporated company over which the Territory is in a position to
exercise control; or
(iii) a person holding or performing the duties of an office or
appointment established or made under a law, or by an administrator or a
Minister, of the Territory; or
(iv) a body, or a person holding or performing the duties of an office or
appointment, that is declared by the regulations to be an authority of the
Territory for the purposes of this Act.
Charter or Charter of Rights and Freedoms means
the Parliamentary Charter of Rights and Freedoms set out in
Schedule
1.
Commission means the Human Rights and Equal Opportunity
Commission established by the Human Rights and Equal Opportunity Commission
Act 1986.
Covenant means the International Covenant on Civil and
Political Rights, a copy of the English text of which is set out in Schedule 1
of the Human Rights and Equal Opportunity Commission Act 1986, as that
International Covenant applies in relation to Australia.
law means a law of the Commonwealth, a law of a State or a
law of a Territory.
practice means a practice engaged in:
(a) by or on behalf of the Commonwealth or of a State or a Territory;
or
(b) by or on behalf of an authority of the Commonwealth or of a State or a
Territory;
being a practice engaged:
(c) in relation to an Australian citizen—within or outside
Australia; or
(d) in any other case—within Australia.
proposed law means:
(a) a proposed law introduced into the Parliament of the Commonwealth or
of a State or a Territory; or
(b) a proposed law prepared on behalf of:
(i) the Government of the Commonwealth or of a State or a Territory;
or
(ii) a Minister of State of the Commonwealth or of a State or a Territory;
or
(iii) a body established by law that has the function of recommending
proposed laws of the Commonwealth or of a State or a Territory.
responsible Minister means the Commonwealth, State or
Territory Minister responsible for the administration of the matter to which the
law, proposed law, act or practice relates.
(2) A reference in this Act to a law or a proposed law includes a reference
to any instrument or proposed instrument (including a rule, regulation, by-law,
award, determination, order or direction) made, granted or issued under a power
conferred by such a law or proposed law.
(3) In this Act:
(a) a reference to, or to the doing of, an act includes a reference to a
refusal or failure to do an act; and
(b) a reference, in relation to the doing of an act or the engaging in of
a practice, to the person who did the act or engaged in the practice shall, in
the case of an act done or practice engaged in by an unincorporated body of
persons, be read as a reference to that body.
For the purposes of the interpretation of the Charter of Rights and
Freedoms, each Article of the Charter shall be taken to be a section of this
Act.
(1) This Act binds the Crown in right of the Commonwealth, each of the
States and the Territories.
(2) Nothing in this Act renders the Crown in right of the Commonwealth or
of a State or a Territory liable to be prosecuted for an offence.
This Act extends to every external Territory.
(1) Subject to subsection (2), any provision of a law, whether passed or
made before, on or after the commencing day of this Act, that is inconsistent
with a provision of this Act does not, to the extent of the inconsistency, have
any force or effect.
(2) Subsection (1) does not apply in relation to a provision of a
Commonwealth, State or Territory law if an Act expressly declares that provision
shall operate notwithstanding this Act.
(3) A declaration made under subsection (2) ceases to have effect two
years after it comes into force or on such earlier date as may be specified in
the declaration.
(4) The Parliament of the Commonwealth or of a State or a Territory may
re-enact a declaration made under subsection (2).
(5) Subsection (3) applies in respect of a re-enactment made under
subsection (4).
(6) The rights and freedoms set out in this Act are in addition to, and
not in derogation of, any other rights and freedoms of the individual under the
laws of the Commonwealth or of a State or a Territory and this Act is not
intended to exclude or limit the operation of any of those laws in so far as
they can operate concurrently with the provisions of this Act.
(7) Nothing in this Act may be interpreted as implying any right to engage
in any activity or perform any act that is restrictive of any of the rights and
freedoms recognised in this Act or limits any of those rights and freedoms to a
greater extent than is provided in this Act.
Notwithstanding anything in any other law relating to the construction or
interpretation of legislation, in the interpretation of a provision of a
Commonwealth or of a State or a Territory law a construction of the provision
that would result in the law not being in conflict with the Charter of Rights
and Freedoms, or that would further the objects of this Act, shall be preferred
to any other construction.
(1) Nothing in the Charter of Rights and Freedoms confers on a person any
right of action in respect of the doing of an act that infringes a right or
freedom set out in the Charter.
(2) Nothing in this Act renders any person liable to any criminal
proceedings in respect of the doing of an act that infringes a right or freedom
set out in the Charter.
(1) Where, in proceedings against a person for a criminal offence, the
court is satisfied that evidence tendered to the court was obtained in a manner
that infringed a right or freedom set out in the Charter, the court shall refuse
to admit that evidence in the proceedings unless it is satisfied that:
(a) admission of the evidence would substantially benefit the public
interest in the administration of criminal justice; and
(b) that benefit would outweigh any prejudice to the rights and freedoms
of any person, including the defendant, that has occurred or is likely to occur
as a result of the infringement or the admission of the evidence.
(2) Where, in proceedings against a person for a criminal offence, the
court is satisfied that a right or freedom of that person set out in the Charter
has been infringed, the court may, subject to subsection (1), make such order as
it considers appropriate and just in all the circumstances to ensure that the
administration of justice is not brought into disrepute by reason of that
infringement.
(3) In this section, proceedings means proceedings under a
law of the Commonwealth or of a State or a Territory.
The Parliamentary Charter of Rights and Freedoms is set out in Schedule 1
which has effect according to its terms.
(1) In addition to the functions of the Commission under the Human
Rights and Equal Opportunity Commission Act 1986, the Commission has the
following functions:
(a) to inquire into any act or practice that may infringe a right or
freedom set out in the Charter, and:
(i) where the Commission considers it appropriate to do so—to
endeavour, by conciliation, to effect a settlement of the matters that gave rise
to the inquiry; and
(ii) where the Commission is of the opinion that the act or practice
infringes a right or freedom set out in the Charter, and the Commission has not
considered it appropriate to endeavour to effect a settlement of the matters
that gave rise to the inquiry or has endeavoured without success to effect such
a settlement—to report to the Minister in relation to the inquiry;
and
(b) to promote an understanding and acceptance in Australia of the rights
and freedoms set out in the Charter and of the objects of this Act, and to
promote the protection of those rights and freedoms in Australia; and
(c) to undertake research and educational programs, and other programs, on
behalf of the Commonwealth for the purpose of promoting the rights and freedoms
set out in the Charter and the objects of this Act; and
(d) to examine laws and, when requested by the Minister, proposed laws for
the purpose of ascertaining whether the laws or proposed laws are, or would be,
in conflict with the Charter, and to report to the Minister the results of any
such examination; and
(e) on its own initiative or when requested by the Minister, to report to
the Minister as to the laws that should be made by the Parliament, or action
that should be taken by the Commonwealth, on matters relating to the rights and
freedoms set out in the Charter; and
(f) where the Commission considers it appropriate to do so, with the leave
of the court hearing the proceedings and subject to any conditions imposed by
the court, to intervene in proceedings relating to a matter arising under this
Act; and
(g) to do anything incidental or conducive to the performance of any of
the preceding functions.
(1) Subject to subsection (2), the powers and duties of the Commission in
relation to the Charter of Rights and Freedoms are the same as those set out in
Part 2, Division 3 of the Human Rights and Equal Opportunity Commission Act
1986.
(2) Before commencing to inquire, under this Act, into an act or practice,
the Commission shall inform the person who appears to the Commission to be the
responsible Minister in relation to the act or practice that the Commission
proposes to inquire into the act or practice.
(1) The Minister shall cause a copy of every report furnished to the
Minister by the Commission under paragraph 13(a), (d) or (e) to be laid before
each House of the Parliament within 15 sitting days of that House after the
report is received by the Minister.
(2) Where the Commission furnishes to the Minister under paragraph 13(a),
(d) or (e) a report that relates to:
(a) a State or Territory law, or a proposed State or Territory law;
or
(b) an act done or practice engaged in:
(i) by or on behalf of a State or Territory; or
(ii) by or on behalf of an authority of a State or a Territory;
the Minister shall immediately furnish a copy of the report to the
Attorney-General of that State or Territory.
(3) The Minister:
(a) shall not cause a copy of a report of the kind referred to in
subsection (2) to be laid before either House of the Parliament until:
(i) the expiration of 30 days after a copy of the report was furnished to
the Attorney-General of the State or Territory concerned under subsection (2);
or
(ii) the Minister receives from the Attorney-General of the State or
Territory concerned a statement relating to the law, act or practice to which
the report related;
whichever happens first; and
(b) shall cause a copy of the report to be laid before each House of the
Parliament within 15 sitting days after the occurrence of the earlier of the
events referred to in subparagraphs (a)(i) and (ii); and
(c) if the event referred to in subparagraph (a)(ii) is the first to
occur, or if, before the report is laid before either House of the Parliament
pursuant to paragraph (b), the Minister receives from the Attorney-General
concerned a statement of the kind referred to in subparagraph
(a)(ii)—shall cause a copy of the statement to be attached to each copy of
the report that is laid before a House of the Parliament pursuant to paragraph
(b).
(1) The Governor-General may make regulations, not inconsistent with this
Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(1) Every person is entitled to equality before the law and to the human
rights and fundamental freedoms set out in this Charter without discrimination
and, in particular, without discrimination based on age, race, colour, sex,
sexuality, transgender identity, language, religion, political or other opinion,
national or social origin, property, birth, mental or physical disability or
other status.
(2) Men and women have the equal right to the enjoyment of the human
rights and fundamental freedoms set out in this Charter.
A right or freedom existing under, or recognised by, any other law shall
not be taken to have been diminished or derogated from by reason only that the
right or freedom is not set out in this Charter.
(1) The rights and freedoms set out in this Charter are subject only to
such reasonable limitations prescribed by law as can be demonstrably justified
in a free and democratic society.
(2) A right or freedom set out in this Charter shall not be limited by any
law to any greater extent than is permitted by the Covenant.
(1) Every person has the right without any discrimination to the equal
protection of the law.
(2) Nothing in this Charter affects the operation of any earlier or later
law by reason only of the fact that the law discriminates in favour of a class
of persons for the purpose of redressing any disabilities particularly suffered
by that class or arising from discrimination against that class.
Persons who belong to an ethnic, religious or linguistic minority have
the right, in community with other members of their own group, to enjoy their
own culture, to profess and practise their own religion, or to use their own
language.
Every Australian citizen has the right and shall have the
opportunity:
(a) to take part in the conduct of public affairs, directly or through
freely chosen representatives; and
(b) to vote and to be elected at genuine periodic elections, which shall
be by universal and equal suffrage and by secret ballot, guaranteeing the free
expression of the will of the electors; and
(c) to have access on general terms of equality to public
employment.
Every person has the right to freedom of expression, including the
freedom of the press and other media of communication, and the freedom to seek,
receive and impart ideas or information of any kind in any form, without
interference and regardless of frontiers.
Every person has the right to freedom of thought and conscience,
including the right to hold opinions without interference.
(1) Every person has the right to have or adopt a religion or belief of
that person’s choice without coercion of any kind, and to manifest that
religion or belief in worship, observance, practice and teaching, whether
individually or in community with others and whether in public or in
private.
(2) Every person has the right not to adopt a religion or belief and,
subject to Article 14(d), no person shall be compelled to participate in worship
or religious ceremony.
Every person has the right of peaceful assembly.
Every person has the right to freedom of association with others,
including the right to form and join trade unions for the protection of that
person’s interests.
Every person has the fundamental right to the protection from arbitrary
or unlawful interference with their dignity, their privacy, the integrity of
their person, their reputation and the security of their residence and any other
premises. This fundamental right exists throughout Australia in all
jurisdictions. For the purposes of giving effect to this right, a search, entry
or seizure is unlawful unless:
(a) made pursuant to a warrant issued by a judicial officer upon
reasonable grounds, supported by oath or affirmation, particularly describing
the purpose of the search, who or what is to be searched and what is to be
seized; or
(b) made pursuant to a law authorising search, entry or seizure, where
search, entry or seizure so authorised is:
(i) necessary to protect life or public safety; or
(ii) justified by some compelling need for immediate action; or
(c) full and free consent is given to the search or entry, provided that
the consent is ongoing and a warning was given as to the consequences of the
giving of consent; or
(d) made pursuant to a grant of power of search or entry to determine
whether a person has complied with legislation which imposes a commercial levy
in relation to a serious matter, in circumstances where the legislation provides
for this in specific terms and there is no other reasonably practicable means of
assessing compliance; or
(e) made pursuant to a grant of power of entry and search to determine
whether a person has complied with legislation under which that person has
accepted a commercial benefit, subject to being monitored by entry and
search.
Recognising the importance of the family in its many forms:
(a) every person of marriageable age has the right to marry and to found a
family; and
(b) no marriage shall be entered into without the free and full consent of
the intending spouses.
Recognising that every child has the right to such measures of protection
as are required by the child’s age:
(a) every child is entitled to the fundamental rights and freedoms set out
in this Charter to the greatest extent compatible with the age of the individual
child; and
(b) every child shall be registered immediately after birth and shall have
a name; and
(c) every child has the right to acquire a nationality; and
(d) the liberty of parents and legal guardians to ensure the religious and
moral education of their children in conformity with their own convictions is to
be respected.
(1) Every person lawfully in Australia has the right to freedom of
movement and choice of residence.
(2) A person who is lawfully in Australia but is not an Australian citizen
shall not be required to leave Australia except on such grounds and in
accordance with such procedures as are established by law.
Every Australian citizen has the right to enter Australia.
Every person has the right to leave Australia.
Every human being has the inherent right to life and no person shall be
arbitrarily deprived of life.
(1) Every person has the right to liberty and security of
person.
(2) No law shall authorise the arbitrary arrest, detention or imprisonment
of any person.
(3) No person shall be deprived of liberty except on such grounds, and in
accordance with such procedures, as are established by law.
(4) No person shall be imprisoned merely on the ground of inability to
fulfil a contractual obligation.
No person shall be held in slavery or servitude or be required to perform
forced or compulsory labour.
Any person who is arrested or detained shall be informed at the time of
the arrest or detention of the reasons for it, and shall be informed promptly
and in detail of any charges in a language which that person
understands.
Any person detained in custody has the right to remain silent and the
right to have access to a lawyer before and during questioning.
(1) Any person arrested or detained on a criminal charge shall be brought
promptly before a judge, magistrate or justice of the peace.
(2) No person awaiting trial shall be unreasonably deprived of the right
to release on giving a guarantee to appear for trial.
(3) Any person arrested or detained on a criminal charge has the right to
be tried within a reasonable time.
Any person deprived of liberty has the right to take proceedings before a
court for the determination of the lawfulness of the detention and to be
released if the court finds that the detention is not lawful.
Any person charged with a criminal offence shall be presumed innocent
until proved guilty according to law.
In the determination of any criminal charge, or of any rights or
obligations in a suit at law, every person has the right to a fair and public
hearing by a competent, independent and impartial tribunal.
Every person who is charged with a criminal offence has the
right:
(a) to be informed of the right to obtain legal assistance; and
(b) to communicate with a lawyer; and
(c) to receive legal assistance without cost if the interests of justice
so require and the person lacks sufficient means to pay for the assistance;
and
(d) to have adequate time and facilities to prepare a defence;
and
(e) to be present at any trial relating to the offence and to present a
defence; and
(f) to examine the witnesses against the person; and
(g) to obtain the attendance of, and to examine, witnesses for the person;
and
(h) to have the free assistance of an interpreter if the person cannot
understand or speak the language used in court; and
(i) not to be compelled to testify or confess guilt; and
(j) in the case of a child, to be dealt with in a manner which takes
account of the child’s age.
(1) No person shall be convicted of any criminal offence on account of any
act or omission which did not constitute a criminal offence at the time when it
occurred.
(2) No person convicted of any criminal offence shall be liable to a
heavier penalty than was applicable at the time the offence was
committed.
Every person convicted of a criminal offence has the right to have the
conviction or sentence reviewed by a higher tribunal according to law.
No person finally convicted or acquitted of a criminal offence shall be
tried or punished again for the same offence or for substantially the same
offence arising out of the same facts.
(1) Every person deprived of liberty has the right to be treated with
humanity and with respect for the inherent dignity of the human
person.
(2) So far as is practicable:
(a) accused persons shall be segregated from convicted persons, and shall
be treated in a manner appropriate to their status as unconvicted persons;
and
(b) accused children shall be segregated from accused adults;
and
(c) convicted children shall be segregated from convicted adults, and
shall be treated in a manner appropriate to their age and legal
status.
(1) No person shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.
(2) No person shall be subjected to medical or scientific experimentation
without that person’s free consent.