Human rights charters and Acts 

A human rights charter or Act, in the Australian sense, is a statute enacted by a particular jurisdiction that lists a set of rights and builds mechanisms around them for holding government to account. It is not a feature of the Australian legal system generally. Only a number of Australian jurisdictions have enacted an instrument of this kind, and most have not. This article explains how such an instrument works where one exists, and what protection looks like where one does not.

The dialogue model

Where a jurisdiction has enacted a charter or Act of this kind, it typically follows what is often called the dialogue model, considered by the High Court in Momcilovic v The Queen (2011) 245 CLR 1,¹ in contrast to a constitutional bill of rights that allows courts to strike down legislation. Under the dialogue model:

• public authorities — government departments, agencies and officials exercising public functions — are required to act compatibly with the specified rights, and to give proper consideration to those rights when making a decision;
• courts and tribunals are required, so far as it is possible to do so consistently with their purpose, to interpret legislation compatibly with the specified rights; and
• where legislation genuinely cannot be interpreted compatibly, the instrument typically does not empower a court to invalidate the statute. Instead, mechanisms such as a declaration of incompatibility refer the problem back to the legislature, leaving Parliament to decide whether and how to amend the law.

This structure is why it is called a dialogue: rather than courts having the final word by striking legislation down, responsibility for resolving an incompatibility is shared between the courts, the executive and the legislature, with Parliament retaining the ultimate say. It is a significant model of rights protection, but a materially different one from a constitutional bill of rights.

Most jurisdictions have no such instrument

It is important not to overstate the reach of this model. A number of Australian jurisdictions have their own charter or Act of this kind, but most Australian jurisdictions have no general human rights instrument at all. Which specific jurisdictions currently have one, and precisely what each covers, changes over time as legislatures act, and a student or practitioner should always check the current position rather than relying on a fixed list.

Protection where there is no charter or Act

The absence of a general instrument does not mean the absence of protection. In a jurisdiction without its own charter or Act, rights and equality interests are protected through other means:

• specific statutes, most importantly the Commonwealth anti-discrimination Acts, which apply nationally regardless of whether a particular jurisdiction has its own charter;
• the general law, including common law doctrines that constrain executive power and protect procedural fairness; and
• a small number of express and implied constitutional protections, which apply Australia-wide but are narrower and more specific than a general bill of rights.

A student should therefore treat the presence or absence of a jurisdiction-specific charter as one layer of a larger structure, not as the only source of rights protection in that jurisdiction.

Interpretive obligations in practice

Where a charter or Act does apply, its interpretive obligation is usually the provision doing the most day-to-day work. Because courts must prefer a rights-compatible reading of legislation where the text allows it, the charter or Act often operates less by creating new freestanding causes of action and more by influencing how existing statutes are read and how public authorities structure their decision-making and give reasons.

The orthodox reading was restated in Director of Public Prosecutions (Vic) v Smith [2024] HCA 32². Gageler CJ, Gleeson, Jagot and Beech-Jones JJ noted at [57] that s 32(1) requires legislation to be read compatibly with Charter rights "so far as it is possible to do so consistently with its purpose" — meaning that where more than one interpretation is open on a plain reading, the compatible one is preferred. It is an interpretive provision, not a licence to give the text a meaning it will not bear.

Applying this in a problem question

1. Identify the jurisdiction in which the conduct or decision occurred.
2. Check whether that jurisdiction currently has its own human rights charter or Act, rather than assuming either way.
3. If it does, identify the relevant right, ask whether a public authority is involved, and ask whether the interpretive obligation can produce a rights-compatible reading of the relevant legislation.
4. If it does not, identify which other layer of protection is doing the work: a Commonwealth anti-discrimination Act, a constitutional provision, or the general law.
5. Do not assume a remedy exists simply because a right has been engaged — check what the applicable instrument, or the absence of one, actually provides.