Human Rights in Australia

Question 1

How have human rights been incorporated into Australian domestic law?

Answer 1

In Australia, there is no one document where all human rights can be found

Australia is a dualist system -a legal system that does not deem treaties enforceable domestically until theory are incorporated into domestic law

Parliament usually passes legislation that echoes the words of the treaty or amends laws

For example, when Australia ratified the Rome Statute of the International Criminal Court in 2002, Parliament simultaneously passed the International Criminal Court Act 2002 (Cth)

Question 2

What are three express rights found in the constitution?

Answer 2

• freedom of religion (s116)
  
  • the right to vote in Commonwealth elections (s41)
  • the right to a trial by jury in federal indictable cases (s80)

Question 3

What is an implied right in the constitution?

Answer 3

the right to freedom of political communication

Question 4

What role does statute law play when promoting human rights in Australia (include examples)

Answer 4

A number of laws have been established by state and federal parliaments; some in response to human rights treaties and some independently

Rights laid out in statute are not absolute, and can later be removed by a previous Act of Parliament

Some of the most important pieces of legislation are:

- Racial Discrimination Act 1977 (NSW)
		- Sex Discrimination Act 1984 (Cth)
		- Australian Human Rights Commission Act 1986 (Cth)

Question 5

What role does common law play in promoting human rights in Australia?

Answer 5

The body of law made by judgements of the courts

Does not offer absolute protection, as statute law overrides it

Cannot be relied upon to develop new rights, as judgements will only define those rights on a case-by-case basis

However, can compel the government to make laws which comply with its judgements - eg Mabo v Queensland No. 2 led to the Native Title Act 1993

Question 6

What is the role of the Australian Human Rights Commission?

Answer 6

An independent national body established to investigate alleged violations of human rights acts

Its roles have expanded to include promoting awareness of human rights, conducting public inquiries into issues and giving human rights advice to parliament

A famous example was the Bringing Them Home Report which led to Rudd’s apology

Although AHRC reports must be tabled in Parliament, they are not legally binding

Question 7

What is the role of royal commissions?

Answer 7

A major formal public inquiry into a defined issue on the recommendation of the PM

The Royal Commission into Institutional Responses to Child Sexual Abuse in 2013-17 investigated the scale of institutional abuse and failures to address it

It resulted in the establishment of the National Redress Scheme in 2018 and a National Apology delivered that same year

Question 8

What is the role of the High Court?

Answer 8

Has the power to set precedents and overturn anti-Constitutional legislation

The High Court has upheld a number of human rights, including that of all people, including prisoners, to vote; Roach v Electoral Commissioner 2007

The most famous is likely the case of Mabo v Queensland (No.2) 1992 when the High Court recognised for the first time the right to native title

Question 9

What is the role of NGOs?

Answer 9

Play a vital role in researching and reporting on human rights issues, making submissions to state and Commonwealth parliaments and working with victims

Are important in protecting individual’s rights, shaping public and political opinion and exposing violations of human rights

For example, Amnesty International campaigns to raise the age of criminal responsibility have been successful in the ACT, where the state government has introduced legislation to raise the age of criminal responsibility from 10 to 14 years

Question 10

What is the role of the media in promoting human rights?

Answer 10

Since 9/11, successive Australian governments have created 75 pieces of anti-terror legislation which has arguably infringed on freedom of the press

Law Council of Australia President Arthur Moses described it as a “creeping erosion of human rights and freedoms which pose a threat to press freedom”

In June 2019, AFP officers raided the home of journalist Annika Smethurst, followed by a raid on the ABC head offices in Sydney

Question 11

What is the history of a Charter of Rights in Australia?

Answer 11

Refers to a formal declaration of the legal and civil rights of the citizens of any state

Both the ACT (2004) and Victoria (2006) have enacted human rights charters in line with the International Bill of Rights

The government has consistently rejected creating a Charter of Rights and has focussed on frameworks including education initiatives and parliamentary processes

Question 12

What are arguments for and against an Australian Charter of Rights?

Answer 12

For:

• Prevent abuses of power by the government (NT intervention of 2004)
• Allow the courts to play a broader role in protecting human rights

Against

• Limits the discretion of judges
• Potential for ‘stagnation’ of rights