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Australia and Human Rights Essay

April 13th, 2010 Leave a comment Go to comments

Human rights are the universally recognised interests, powers, liberties and entitlements associated with respect to human dignity and freedom. The Universal Declaration of Human Rights documents this definition and recognises the existence of Human rights. Since the formation of this declaration numerous treaties and declarations have branched from it developing our understanding of human rights.

International human rights have been developed over many centuries through the generation of customary international law and recently through the multilateral treaties and conventions developed specifically to address human rights issues.

International rights come in several main categories, which include – civil and political rights, economic, social and cultural rights, environmental and peace rights and collective rights to self-determination. The first two categories are the two major categories initially recognised by international law in the mid 20th Century. The next two categories are the newest wave of human rights issues, arisen as a result of the agitation by developing countries.

International human rights can only take effect through domestic law. Thus making it somewhat controversial as it imposes duties on states in relation to individuals within their own territory.

In Australia the executive government initially needs to ratify the treaty, convention or any other international instrument. Afterwards the Australian government, or executive, followed by enactment can directly accept the international instrument in question. The parliament will then incorporate the meaning of the international treaty into the domestic legislation via common law, statutes and in the state and Commonwealth constitutions.

Where the international human rights laws aren’t incorporated into the words of an Act or judicial decision the international law may be used to assist in the interpretations of statutes and constitutions.

Under Common Law it is required that Administrative decisions must take into account international conventions to which Australia is a signatory. As demonstrated in the case of the Minister for Immigration and Ethnic Affairs v Teoh (1995), where the Federal court decided to grant Mr Teoh’s application for residency in Australia despite his failure to meet character requirements under the Migration Act 1958. The Court validated its decision by arguing that Mr Teoh’s role as a father figure must be considered under the Convention on the Rights of the Child in any assessment of his application to remain in Australia.

Statute law ensures much of the Human rights protection in Australia. Various Acts concerning welfare, education, health and criminal matters have been introduced to ensure justice, fairness and equality within our society. Many of these such as the Racial discrimination Act (Cth) 1975, and the Disability Discrimination Act (Cth) 1992 are reflective of the human rights provisions.

Within the Australian Constitution there are stated protection’s offered to individuals such as the right to vote and the right to trial by jury for serious offences.

Other avenues for protection include the Human Rights and Equal Opportunity Commission, the State and Federal Ombudsman, Privacy Commissioner, Anti-Discrimination Board, Administrative Decisions Tribunal and through the Federal Court for a full hearing of a case. Parliamentary committees and law reform bodies investigate the protection of human rights in Australia and make recommendations for change. The federal parliament’s Human Rights Sub-committee established in 1991, is an example of one such body.

However, there are still loopholes within the domestic system that have become evident recently, with the arousal of some delicate issues for which the government has faced harsh criticism.

The Australian public has voiced their concern about lack of protection from statute law, where some international human rights treaties have failed to become domestic law. The Commonwealth has the power to pass such legislation but it has been unwilling to interfere in what are often regarded as state matters. The Federal government’s unwillingness to overturn the Northern Territory’s mandatory sentencing is an example of this.

Other criticisms coming from the UN committees, aimed at the government lack of compassion for refugees and illegal immigrants and economic and social inequalities faced by ATSI people has been bluntly rejected by the government.

These criticisms have led to the suggestion that Australia should have its own bill of rights to ensure adequate protection of human rights. Another suggested reform is the creation of a single expert monitoring body in place of the current six specialist committees, and a proper resourcing of such a committee.

In conclusion it is evident that Australia has taken the first few steps in creating a democratic legal system that provides care and protection for its citizens, yet the legal system has failed many of its tests. The UN human rights system operates as some sort of safety net in the absence of a comprehensive Australian system for rights protection.

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