Australia is one of the few countries of its size, democratic or otherwise, that doesn’t protect human rights in its constitution. Although the High Court has judicially constructed a few constitutionally implied human rights, these are very narrow. In particular, the implied freedom of speech right recognised by the High Court only extends to political speech, leaving the vast majority of other speech acts unprotected.

Whether recognised in domestic law or not, Australia is still obliged to uphold the human rights recognised in the treaties to which it is a party, such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). There is a Parliamentary Joint Committee on Human Rights (PJCHR) to review bills and legislative instruments for human rights compatibility based on Australia’s international obligations.

However the PJCHR does not have the power to block legislation, and the recommendations it does make are both politically influenced and time constrained. What this means is that if a person believes that their human rights are infringed by an Australian law and those rights aren’t reflected in domestic legislation, their practical options for obtaining recourse are very limited.

Efforts towards a Human Rights Act

In my recent submission on Modernising Australia’s National Classification Scheme, I referred to a rare case in which the United Nations Human Rights Committee (UNHRC) ruled directly in favour of a Australian whose human rights were infringed by a Tasmanian anti-homosexuality law, which led to the passage of the Human Rights (Sexual Conduct) Act of 1994 to ensure that those rights were reflected in Commonwealth law, so that they could be directly enforced.

This points in the direction of a possible compromise solution: if amending the constitution to add a Bill of Rights is improbable (the last attempt at enshrining new rights in the Constitution, the proposal to establish an indigenous voice in Parliament, failed spectacularly in 2023), why couldn’t the Parliament at least pass a Human Rights Act? While weaker than a constitutional instrument, this is, after all, the approach that New Zealand took with the passage of its New Zealand Bill of Rights Act 1990 (NZBORA).

Well, there have been proposals for Australia to do just this. Over 2008-2009, a National Human Rights Consultation recommended a federal Human Rights Act. But despite widespread public support, the proposal was never implemented due to lack of political will. Today, the passage of a federal Human Rights Act remains the subject of advocacy by various groups including Australian Lawyers for Human Rights and Amnesty Australia, but remains no closer to realisation.

The same is mostly true at a State level. In Western Australia, an independent consultation committee convened by the government in 2007 strongly recommended that it introduce a Human Rights Act. But no action was taken then, nor has been taken since. Yesterday, I attended a convening of the coalition Western Australia for a Human Rights Act who are still advocating for the adoption of a WA Human Rights Act, following the lead of Queensland, the Australian Capital Territory, and Victoria which have already adopted similar laws.

Exactly what this Act could do to help those who are subjected to government human rights violations will be considered towards the conclusion of this article. But to set some context, what evidence exists that such laws are needed in the first place? Are Australians actually more vulnerable to governmental overreach affecting their rights, compared with other countries that explicitly recognise human rights in domestic law? We don’t need to look any further than the current Federal Parliamentary session to find an answer to those questions.

New laws: misinformation versus freedom of expression

The absence of constitutional or even statutory protection for human rights has offered Australian governments the latitude to pass some of the world’s most invasive restrictions on Internet users, and to grant the most sweeping law enforcement powers.

The most effective lever for convincing the public that such authoritarian laws are justified is frequently by invoking child safety. Although experts recommend that child safety be treated as a public health issue, it is more expedient for politicians to “securitise” the issue, since this enables them to push through extreme measures of surveillance, censorship, and criminalisation, that the public otherwise wouldn’t accept.

This year alone, two federal initiatives fit that bill. The first was the Combatting Misinformation and Disinformation Bill 2024, which was promoted as being necessary to safeguard young people from harmful content, particularly misinformation related to health, safety, and social issues.

But the Australian Human Rights Commission, faith-based organisations, and opposition political parties were among those expressing apprehension about the government’s power to define and regulate “truth,” raising alarms about potential censorship and government overreach​. Following these widespread concerns, the Bill was ultimately abandoned in November 2024.

New laws: privacy versus age assurance

The second such measure is the Online Safety Amendment (Social Media Minimum Age) Bill, which is expected to pass this week, given its bipartisan support. Nevertheless this populist bill, which would require social media companies to enforce a minimum age limit of 16, has also been broadly criticised by experts for its impacts on the human rights of young people to engage in the online world.

During the scant 24 hours during which submissions were received in a rushed consultation, over 15,000 responses were received. In my own response, I wrote:

The bill undermines the crucial role of parents, who are better equipped than the government to assess the risks and benefits of their children’s participation in online society. By imposing a blanket ban, the bill incentivizes children and parents to circumvent the law, fostering disrespect for both legal authority and the institutions that enact such measures.

Moreover, the bill presents significant risks to privacy and freedom of expression. In their effort to comply, social media platforms may collect additional personal information, increasing the potential for misuse or data breaches. Requiring identification could also chill free speech, including political discourse, raising constitutional concerns and violating fundamental rights.

Many children are ready to engage with social media under parental supervision well before the age of 16. For marginalized groups or children with disabilities, social media offers essential support and connection. Denying access to these platforms could have profoundly negative effects, stunting their social development and leaving them ill-prepared to navigate adulthood when they eventually gain legal access.

Enforcement creep: free expression

It’s not only new laws that have the potential to encroach upon the human rights of Australian Internet users, but also the “enforcement creep” the occurs when regulators test the use of their powers under existing laws. The best example of that this year occurred during stand-off between Julie Inman-Grant, Australia’s eSafety Commissioner, and Elon Musk over demands for the global removal of a violent video from X (formerly Twitter) showing a stabbing attack on a Bishop during a livestreamed sermon in April 2024.

Inman-Grant issued a takedown order under Australia’s Online Safety Act, aiming to prevent the graphic content from being accessible to children. She declined to accept X’s compromise of blocking the video to Australian users only—arguing (in fairness, correctly), that a Virtual Private Network (VPN) could be used to bypass a national-level block. While other platforms complied, X refused, arguing the video did not violate its policies and raising concerns about global censorship implications. Inman-Grant took X to Australia’s Federal Court to enforce the removal but ultimately dropped the case in June 2024.

Elon Musk is a poor champion of freedom of expression, given his censorship of simple words like “cisgender” on X, and his penchant for using pedophilia smears against critics, competitors, and even his own former Head of Trust & Safety. Nonetheless, Musk was on the right side of this issue: nobody elected Julie Inman-Grant to any position at all, least of all to the position of global Internet censor.

Enforcement creep: encryption

A second example of Australian regulators foreshadowing their intention to exert their existing powers in ways that threaten human rights came in September 2024, when the head of the Australian Security Intelligence Organisation (ASIO) said that the organisation may start forcing technology companies to provide access to encrypted chats during certain security investigations.

The following month, the encrypted messenger company Session left Australia to reestablish itself in Switzerland, after police visited an employee’s residence and asked them questions about the app’s operation and sought details about a particular user.

The interception and decryption of online communications is not a new power of Australian regulators, but it has laid mostly latent since passage of the Assistance and Access Act in 2018. Then Prime Minister Malcolm Turnbull was rightly ridiculed the previous year for blustering that “The laws of mathematics are very commendable, but the only law that applies in Australia is the law of Australia.” But with executives of encrypted Internet platforms actually coming under police investigation, who is laughing now?

Violating children’s rights: privacy

It’s notable that Queensland is one of three states and territories, along with Victoria and the Australian Capital Territory, that have so far adopted human rights legislation designed to prevent the government from infringing human rights, because as I’ve previously described, it was also Queensland that hosted perhaps the most egregious violations of children’s rights ever committed in a law enforcement operation.

The operation, in which authorities directly uploaded abuse images of non-consenting minors for the consumption of online abusers, was subsequently declared a “clear violation of the UN children’s convention” by UNICEF, and also faced condemnation from Amnesty International. Forum shopping by cooperating law enforcement agencies had settled on Queensland as a base for the operation precisely because of it lacked the legal safeguards that would have made the operation unlawful elsewhere.

Violating children’s rights: real CSAM versus obscenity

Another area that infringes children’s rights, and one that I have devoted a lot of attention to on this blog due to its intersection with my professional work, is the way in which image-based abuse crimes against them are conflated with obscenity prosecutions over offensive art or literature. I have argued that treating real child abuse content as if it was nothing more than a risque anime cartoon is bad policy, and indeed a disgraceful manifestation of rape culture.

Furthermore, as I recently uncovered through FOIA applications to the Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions (CDPP), neither agency even tracks the distinction between real abuse crimes, and fictional and fantasy sexual materials. Seeking to uncover more, I have made a further FOIA request to uncover the CDPP’s internal prosecution guidelines for such cases. The CDPP has refused to comply, and I have requested a review from the Office of the Australian Information Commissioner (OAIC), which remains pending at the date of this article.

Meanwhile, I am pursuing law reform through other avenues. In a letter on this topic to the Attorney-General, I recently wrote:

The current approach risks sending the message that federal criminal law is less about preventing harm to children and more about policing perceived deviant desires. This is a misstep, as it trivialises the horrific nature of real image-based abuse and conflates it with offenses better addressed through obscenity laws. It is vital to recognise that the exploitation of real children is a fundamentally different and far more serious issue than fictional or symbolic representations…  A legislative adjustment to address this disparity would represent a significant step toward ensuring that the law’s primary focus remains on protecting real children from harm.

How far would a Human Rights Act go to help?

While what has been covered so far suffices to show that the human rights of Australians are under constant threat from overreaching and misguided government policies aimed at controlling our behaviour online, the biggest remaining open question is what, if anything, a Human Rights Act could do to fix that. In short, the answer is that while a Human Rights Act offers significant potential benefits, it is not a panacea.

One of its key limitations is that, unlike constitutional rights, statutory rights can be amended or overridden by subsequent legislation. This means that while the Act could provide robust protections on paper, it remains vulnerable to political shifts. For instance, a future government could weaken or dismantle its protections, especially without widespread public support. With that said, strong public support and alignment with international human rights norms can create a political cost for governments considering regressive changes.

An additional limitation is that courts under such an Act likely would not have the power to strike down incompatible laws. Instead, they could only issue declarations of incompatibility, leaving the final decision to Parliament. This structure maintains legislative supremacy but could limit the Act’s practical impact if political will is lacking. The experience of other countries shows that strong advocacy and public engagement are crucial for these frameworks to function effectively.

Finally, there is no immediate prospect of a federal Human Rights Act, and the benefits of a patchwork of State-based laws are limited. Yesterday’s seminar on a potential WA Human Rights Act included case studies of how Australians in States that do have a human rights law have benefited from access to a formalised process for asserting their human rights in response to government actions that violate them.

But there is little that can be done at a State level to protect the rights of those who are affected by Commonwealth legislation to regulate Internet usage nationwide. A federal Human Rights Act would not render State laws redundant; instead, it would create a baseline standard, allowing States to build on these protections with region-specific legislation. Both, in other words, are needed.

Potential benefits of implementing a Human Rights Act

Despite these inherent challenges, the experience of other countries demonstrates that the benefits of even a statutory Human Rights Act can be significant, especially when paired with active public engagement and advocacy. A Human Rights Act would provide a useful first step towards protecting civil liberties and promoting governmental accountability, by serving as a legal benchmark against which all new legislation is assessed, similar to frameworks in New Zealand and the United Kingdom.

Australians could also potentially directly invoke the Act in legal disputes, enhancing their ability to challenge governmental decisions. Currently, legal recourse depends largely on domestic laws aligning with international treaties, which often lack enforceability. Under a Human Rights Act, courts would be empowered to scrutinise government actions and legislation for human rights compliance. While it may not overturn laws, this process could compel Parliament to reconsider measures found incompatible with international human rights standards.

In practical terms, a Federal Human Rights Act could serve as a safeguard against overreach in areas like surveillance and online regulation. For example, debates around the Online Safety Act or proposed misinformation laws might have seen more balanced outcomes if guided by clear statutory human rights protections.

Conclusion

My own career of digital rights activism has taken me around the world, from the United Nations to Silicon Valley, but it began in Australia during the early 2000s, going head to head against the government on behalf of organisations such as the Internet Society of Australia, the WA Internet Association, and Electronic Frontiers Australia. This year that I’ve spent back in Australia has taken me full circle, bringing my advocacy back to its local roots.

That’s timely, because for a country of its size, Australia has increasingly become a world leader in bad Internet policy—from age assurance mandates, to demands for encryption backdoors, to global content takedowns, and criminalisation of speech. Australia’s lack of a constitutional, or even a statutory bill of rights plays a big part in it holding that dubious honour.

It should go without saying that the government should not be able to violate international human rights law, even when they claim child protection as the justification. Yet thanks to fearmongering and misinformation propagated from both right and left, the public has become all too credulous when government overreach is framed as being necessary to protect child safety. Human rights are one of the few safeguards that we have to stand firm against such encroachments.

Although I don’t harbour any illusions that a Human Rights Act would operate as a cure-all, any new weapon in the armoury of a civil rights defender is to be welcomed. I strongly support current Western Australian advocacy efforts to protect civil liberties and bring accountability and redress to victims of State government overreach and misfeasance.

But even more important in the context of Commonwealth laws affecting the Internet will be the passage of a Federal Human Rights Act, to extend human rights protections to all Australians on a uniform basis, and lay a stronger foundation for a more principled approach to Internet policymaking going forward.