Frequently Asked Questions

During its community consultations the Committee is asked a wide range of questions. Many of these raise policy issues which the Committee will ultimately have to address in its report to the Government. Other questions relate primarily to factual issues concerning the Government's proposal, the draft WA Human Rights Bill and the Committee's own process.

The Committee provides the following information in the form of questions and answers to help promote community understanding of some of these factual issues. The information does not deal with any policy issues as the Committee has no pre-determined views about these and reserves its judgment until its consultation process is complete.

1. Don't existing laws cover all of our main rights?
2. Why is there a proposal for a WA Human Rights Act? Shouldn't this be federal legislation?
3. Is the draft WA Human Rights Bill similar to the US Bill of Rights?
4. How does the draft WA Human Rights Bill work?
5. What is the International Covenant on Civil and Political Rights? Which countries support it?
6. What is the effect of making the rights in the draft WA Human Rights Bill subject to "reasonable limits"?
7. If a WA Human Rights Act is introduced, will we be able to change it in the future?
8. The Statement of Intent sets out the Government’s preferred position from the beginning. Isn’t the consultation just a tokenistic exercise?
9. How can you expect to have a meaningful public consultation about an issue as critical as human rights in just six months?

1. Don’t existing laws cover all of our main rights?
   
   
   • Some people believe that human rights are already well enough protected and there is no need to introduce a law which specifically protects human rights.
   
   
   
   • Australians tend to assume that because we enjoy many rights and freedoms that these must form part of Australian law. This is not necessarily the case.
   
   
   
   • Certain human rights are protected by specific laws such as anti-discrimination legislation.
   
   
   
   • Some important rights, eg freedom of expression, currently have only limited legal protection.
   
   
   
   • Others have no legal protection at all, eg at the State level there is no legal recognition of a right to privacy.



2. Why is there a proposal for a WA Human Rights Act? Shouldn't this be federal legislation?
   
   
   • The issue of federal human rights legislation is not on the current Commonwealth Government's agenda.
   
   
   
   • The ALP National Platform approved at the ALP's recent Conference supports a public consultation to ascertain how best to recognise and protect the human rights and freedoms enjoyed by all Australians. However, there is no settled position as to which rights should be protected at the federal level, and how those rights should be protected, other than that the federal ALP is committed to a model which protects the sovereignty of Parliament.
   
   
   
   • While a national approach would have advantages, many essential services such as police, child protection and mental health services are covered by state law. This means that even if federal human rights legislation existed, it would not necessarily cover all aspects of these activities.
   
   
   
   • A WA Human Rights Act would be able to take into account the particular social, political and economic situation in WA. The community consultation that is being undertaken is intended to ensure that a WA Human Rights Act will reflect the values of Western Australians and the rights that are important to them.



3. Is the draft WA Human Rights Bill similar to the US Bill of Rights?
   
   
   • No, it is nothing like the US Bill of Rights, which is constitutionally entrenched and therefore very difficult to change.
   
   
   
   • The draft WA Human Rights Bill is based on modern human rights laws that now operate successfully in Victoria, the ACT, the UK and New Zealand.
   
   
   
   • If enacted, the draft WA Human Rights Bill would be an ordinary Act of Parliament. This would give Parliament the flexibility to amend it over time if necessary and appropriate in order to keep pace with the community's values.
   
   
   
   • Rather than allowing courts to strike down legislation - as occurs in the US - the WA model is designed to promote a dialogue between the three arms of the government while giving Parliament the final say.



4. How does the draft WA Human Rights Bill work?
   
   
   • First, the draft Bill sets out an agreed set of civil and political rights and freedoms which constitute the human rights of all Western Australians. These rights have been drawn from the International Covenant on Civil and Political Rights.
   
   
   
   • Secondly, government departments and agencies are placed under a legal obligation to consider, and act compatibly with, the human rights set out in the Bill in their decision-making and conduct.
   
   
   
   • Thirdly, whenever a proposed new law is introduced to the Parliament, a "statement of compatibility" is required to be made to the Parliament indicating whether or not the proposed law is compatible with the human rights set out in the draft Bill. If a proposed law is not compatible with one or more human rights, the statement must explain how it is incompatible and why the proposed law should nevertheless be passed.
   
   
   
   • Fourthly, the Bill recognises that the Parliament may choose to pass a proposed law that is not compatible with human rights. When doing so, Parliament may decide to include an express statement in the proposed law that the law operates despite being inconsistent with one or more human rights. The insertion of such a statement prevents the WA Human Rights Act from applying to the law.
   
   
   
   • Fifthly, the Bill recognises that, although Parliament can enact laws to recognise (or limit) human rights, the courts have a role to play in interpreting the law. The Bill requires all courts to interpret laws compatibly with human rights - but only when laws are ambiguous and when doing so would not be inconsistent with the intended purpose of the law (ie, so the courts cannot overturn the clear wording or intent of Parliament).
   
   
   
   • Courts are not able to strike down legislation, but if a law cannot be interpreted compatibly with human rights, the Supreme Court can issue a "declaration of incompatibility". If this happens (and the experience in other countries suggests that this will not commonly occur it is likely to be rare), Parliament can re-consider the law, although it doesn't have to make any changes if it doesn’t consider this appropriate. In this way, Parliament, as the democratically elected body, always has the final say.



5. What is the International Covenant on Civil and Political Rights? Which countries support it?
   
   
   • The International Covenant on Civil and Political Rights is a United Nations Treaty ratified by 150 countries, including Australia (which ratified the Covenant in 1980). Other countries that have ratified the Covenant include New Zealand, the US, the UK, China, France, Germany, India, and Japan.
   
   
   
   • The civil and political rights set out in the International Covenant are widely recognised as a set of the most basic of all human rights.
   
   
   
   • These rights include freedom of speech and religion, freedom of association, the right to a fair trial and the right to equality before the law.



6. What is the effect of making the rights in the draft WA Human Rights Bill subject to "reasonable limits"?
   
   
   • The draft Bill provides that a written law that limits a human right is not to be taken to be incompatible with the right if the limit is "reasonable and demonstrably justifiable in a free and democratic society based on human dignity, equality and freedom".
   
   
   
   • This provision recognises that competing rights often need to be balanced against one another and that some margin of flexibility in the application of human rights is often required.
   • It allows legislation that may limit certain rights to operate in order to protect the rights of others or the community at large.
   
   
   
   • "Reasonable limits" clauses are very common in modern human rights laws and can be found in the legislation in Victoria, the ACT and New Zealand.



7. If a WA Human Rights Act is introduced, will we be able to change it in the future?
   
   
   • If enacted, the draft WA Human Rights Bill would become an ordinary Act of Parliament and be subject to ordinary amendment procedures.
   
   
   
   • Victoria and the ACT have allowed for a review process in their human rights laws.
   
   
   
   • The draft WA Human Rights Bill proposes a review three years from the Act's commencement and every four years after that.
   
   
   
   • These reviews will provide an opportunity to consider whether rights and remedies should be added and whether others should be required to act compatibly with human rights.



8. The Statement of Intent sets out the Government’s preferred position from the beginning. Isn’t the consultation just a tokenistic exercise?
   
   
   • The Government's Statement of Intent sets a clear scope for the consultation process and helps to focus the debate on key issues. For example, it reassures the community that the Government is not thinking of a US-style Bill of Rights but one which preserves the sovereignty of Parliament.
   
   
   
   • The Committee is entirely independent of Government in gathering the views of Western Australians on how best to protect and promote human rights. The Committee's report will be shaped by the views of the public and is by no means pre-determined.
   
   
   
   • The members of the Committee take very seriously their role as the guardians of public participation and look forward to the outcome of the consultation.



9. How can you expect to have a meaningful public consultation about an issue as critical as human rights in just six months?
   
   
   • The Committee is working hard to speak to as many Western Australians in the time available about whether we need a new law on human rights in this State and, if so, the form the law should take.
   
   
   
   • The public consultation that took place in Victoria before the introduction of the Victorian Charter of Rights and Responsibilities was conducted over a period of 6 months and was very successful.