incorporation of human rights into australia law

Question 1

importance of international law incorporated into domestic legislation

Answer 1

• even if an individual has international rights, if there is a lack of domestic law in the country, they will not gain the privilege of these rights
• e.g. Pakistan has international rights of education, but no domestic law on the subject, therefore children (such as girls especiallY) are not required to go to school and maintain education. Whereas Australia, who also have international rights of education, have Family Law Act which protects the right, meaning that children are enforced into the right of education
• summarised: domestic rights make international rights more enforceable, where international rights are accessible domestically

Question 2

process of incorporating international law human rights into domestic laws

Answer 2

STEP 1: INTERNATIONAL TREATY
- convention on the rights of the child 1990 (UN) > covers rights to eduation, safety, and to be treated as vulnerable > difficult to enforce as an individual

STEP 2: SIGNING OF TREATY
- country becomes signatory to the treaty (e.g Australia signs CROC) > although not necessarily enforceable in domestic law, international bodies such as the UN can shame countries for lack of compliance

STEP 3: RATIFYING
- government says they will MAKE it enforceable > not yet in domestic law, but shows an intention to put it in law > HOWEVER, this is enforceable in the high court, as the high court can take into account ratified treaties when coming to a decision

STEP 4: PASSING LEGISLATION
- for example, Austealia signed and ratified CROC, which is now in the Family Law act 1975 (Cth)
- like any other form of legislation, this is now enforceable in domestic courts and law enforcement

Question 3

effectiveness of incorporating international law into domestic legislation

Answer 3

ineffectiveness:
- aus. continued to allow human rights abuses such as detaining asylum seekers despite being signatories to the convention relating to the status of refugees
- even if rights are put into legislation, legislations can be amended at any time (e.g. 2014 attempt to amend the Racial Discrimination Act 1975 (Cth) > tried to make it insult, offend, humiliate or intimidate someone on the basis of their race > poses a question on how binding our legislations really are )