This page points to some Australian and overseas anti-discrimination legislation as background to our discussion of online Accessibility, politics and Hate Speech, and debate about free speech and Censorship.

It also highlights some of the general literature on human rights law. Reports and academic studies of particular legislation are identified in the guides.

     this profile

The following pages cover -

legislation - Federal, state/territory and overseas anti-discrimination legislation and international conventions

watchdogs - Australian and overseas anti-discrimination bodies

chronology - a brief timeline of anti-discrimination developments in Australia and New Zealand

     orientation

The Australian Constitution, very much a product of its time, says very little about human rights and when adopted in 1901 did not explicitly address questions of discrimination relating to gender, ethnicity, disability or economic circumstances. In contrast to many countries - for example New Zealand, with the Bill of Rights Act 1990 (here) - Australia also does not have a Bill of Rights. Recurrent proposals for such a Bill or a Charter of Rights have gained little support.

The High Court, final interpreter of the Constitution, has traditionally been reluctant to concern itself with human rights issues. However, since the early 1990s it has indicated that it is prepared to develop the common law relating to human rights. Examples are the 1992 decision in Australian Capital Television v Commonwealth that in determining an implied right to free political speech provides a basis for exploration of whether other human rights are implied in the Constitution and the 2001 Lenah v ABC decision regarding privacy.

Federal and state legislatures have been more active, although development of anti-discrimination legislation across the individual states has been quite uneven. As the the following pages of this profile suggest, legislative change has concentrated on three areas -

-   recognition that Indigenous people in Australia are citizens and should not suffer discrimination regarding participation in the census and franchise

-   anticipation and adoption of international instruments such as the Convention concerning Discrimination in Respect of Employment & Occupation through legislation such as the South Australian Prohibition of Discrimination Act 1966 and Commonwealth Sex Discrimination Act 1984

-   extension through enactments such as the NSW Anti-Discrimination (Homosexual Vilification) Amendment Act 1993 and Commonwealth Racial Hatred Act 1995 to address vilification

There's been little specific attention to the internet. The landmark probably remains SOCOG's fine of $20,000 after ignoring the adverse ruling by the Human Rights & Equal Opportunity Commission (HREOC) in Maguire v SOCOG, the landmark 'online accessibility' case under the Commonwealth Disability Discrimination Act.  

     literature

Much of the literature on anti-discrimination law is dauntingly technical, self-congratulatory or overly polemical. Two useful background collections are Non-Discrimination Law: Comparative Perspectives (Hague: Kluwer 99) edited by Titia Loenen & Peter Rodrigues and Anti-Discrimination Law Enforcement: A Comparative Perspective (Brookfield: Avebury 97) edited by Martin MacEwen. There's a broader discussion in the two volume The Law of Human Rights (Oxford: Oxford Uni Press 00) by Richard Clayton & Hugh Tomlinson.

We've noted particular Australian works in the individual guides, for example George Williams' Human Rights under the Australian Constitution (Melbourne: Oxford Uni Press 99). Others include Chris Ronalds' Discrimination Law and Practice (Annandale: Federation Press 98) and Michael Kirby's Through The World's Eye (Annandale: Federation Press 00).

Peter Bailey's Human Rights: Australia in an International Context (Melbourne: Butterworths 90) has been superseded by Human Rights in International & Australian Law (Melbourne: Butterworths 00) by Stuart Kaye & Ryszard Piotrowicz and by Human Rights and Australian Law: Principles, Practice and Potential (Annandale: Federation Press 98) edited by David Kinley.

For the UK and other EU jurisdictions see Anti-Discrimination Law (Aldershot: Dartmouth 91) edited by Christopher McCrudden and Discrimination: The Limits of Law? (London: Mansell 92) edited by Bob Hepple & Erika Szyszczak. McCrudden and Gerry Chambers co-edited Human Rights & Civil Liberties in Britain (Oxford: Clarendon Press 93).

The Universal Declaration of Human Rights: A Common Standard of Achievement (Hague: Nijhoff 99) edited by Gudmundur Alfredsson & Asbjorn Eide is a somewhat self-congratulatory collection from the hyman rights professoriat. There's a more tart account in Human Rights As Politics and Idolatry (Princeton: Princeton Uni Press 01) edited by Amy Gutmann, in The International Bill of Rights: the Covenant on Civil & Political Rights (New York: Columbia Uni Press 81) edited by Louis Henkin and in The Political Economy of Civil Society and Human Rights (London: Routledge 98) by Gary Madison.

For perspectives on treaty-making powers and limitations under the Australian constitution, of particular relevance for the UN Conventions, see Trick or Treaty? Commonwealth Power to Make and Implement Treaties - the 1995 report of the Senate Legal & Constitutional References Committee. The federal Department of Foreign Affairs & Trade has an online Australian Treaties Library on AustLII (here), which identifies current international instruments. There's a broader treatment in The Effect of Treaties in Domestic Law (London: Sweet & Maxwell 87) edited by Francis Jacobs and Shelley Roberts.

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