A Proposal for an Australian Bill of Rights Based on Customary International Law

Recent dicta from the High Court of Australia (HCA) have refocused attention on the lack of an Australian Bill of Human Rights. (1) As a result, an Australian Bill of Human Rights was introduced in the House of Representatives, (2) although similar bills have been consistently rejected by the Commonwealth Parliament for over sixty years. (3) More alarmingly, international agreements and obligations that might have provided some protection to Australians are routinely ignored/The ongoing constitutionalisation of international law suggests that human rights protection in Australia should focus on harmonization with customary international law (CIL), rather than on adopting a cherry-picking approach to human rights protection, as seen in Australia's subnational instruments, and in proposed Commonwealth legislation. (5) This proposal is for a Bill that consolidates existing federal human rights instruments, incorporates CIL into domestic law, and allows for the evolution of these protections in parallel with CIL by refraining from any enumeration of protected rights. In practice, the proposed Bill signals the HCA jurisdiction in developing the common law according to CIL. CIL jurisprudence ensures guidance for the application of protected rights in Australia.