Devania Anesya/ 070810535
Australia’s human rights obligations derive, in large part, from the international treaties to which Australia has become a party. For this reason, all Australian Governments (Commonwealth, State, Territory and local governments) have a special role in protecting and promoting human rights. The main kinds of human rights are: Civil and political rights – which protect the individual from the misuse of political power and recognise every individual’s right to participate in their country’s political process. They include rights such as the right to be free from discrimination and the right to equality before the law – and Economic, social and cultural rights which protect an individual’s right to access economic, social and cultural aspects of their country. They include rights such as the right to education and the right to adequate health services.
Australia has ratified the two major international treaties which set out these rights: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. This means that the Government is already responsible for respecting and ensuring rights under these treaties.
Australia has had a very racist past in which apartheid has been practiced and where indigenous Aboriginal people have lost almost all their land and suffered many prejudices. Aborigines are the poorest group in Australia and suffer from very much preventable diseases. For more about these issues, you can start at these harrowing reports from John Pilger (2000) a prominent Australian journalist who has been critical of many western policies.
“In 1987, a sensational “discovery” was made by a Sydney University team, led by Australia’s most celebrated pre-historian, Professor D J Mulvaney. They reported that the Australian population in 1788 was 750,000, or three times the previous estimate. They concluded that more than 600,000 people had died as result of white settlement.”
Recently, people have started thinking about emerging human rights principles. These human rights principles include things like the right to a healthy environment. These rights remain largely unofficial and their status is yet to be settled at international law.
Australia has a strong existing human rights framework. Human rights are currently protected in a range of ways including our democratic institutions, legal safeguards, and a culture that values human rights. Protecting and promoting human rights requires balancing the interests of individuals and groups with the interests of society including security, public health and public order.
The Australian Constitution provides for certain human rights protections. These specific rights include:
- prohibiting the Commonwealth from making any law establishing any religion or imposing any religious observance
- the right to a trial by jury, and
- the right to fair compensation when the Commonwealth acquires the property of a person or a State.
The High Court of Australia has also found that some rights can be implied from the Australian Constitution such as the implied right to freedom of political communication. The extent of the protection offered by these implied rights remains unclear.
A number of human rights are recognised and protected by the common (or judge-made) law. These include, for example, the right to be presumed innocent until proven guilty, the right to silence and the requirement that evidence of confessions obtained by force be excluded at trials. These rights may be restricted or removed by legislation at any time.
Australia’s anti-discrimination laws are integral to the protection of human rights. Under Federal discrimination laws you are not allowed to be treated less favourably in public life because of your sex, marital status, race, age or because you have a disability. States and Territories also have anti-discrimination laws which, although similar to the Federal laws, vary in the grounds of discrimination they cover, the processes used to make complaints and the remedies available. Human rights in Australia are protected by a variety of others laws in addition to anti-discrimination legislation. These include Australia’s criminal laws which embody human rights principles such as the right to a fair trial.
In addition to their anti-discrimination legislation, two jurisdictions in Australia have enacted human rights legislation. In 2004 the ACT Government passed the Human Rights Act 2004. Victoria followed with its Charter of Human Rights and Responsibilities Act 2006. The main features of these laws are that:
- they both set out the human rights that are protected in these jurisdictions
- do not enable courts to invalidate legislation, but instead enable them to tell Government if legislation is not able to be interpreted consistently with human rights, and
- in the ACT (although not in Victoria) the legislation, from 1 January 2009, provides for a direct right of action to the courts for individuals who believe their human rights have been breached.
States and Territories also have a range of human rights, anti-discrimination and equal opportunity commissions.
The Australian administrative law system provides for a number of rights and protections. For example, in some cases a person affected by a decision made by a government agency may have the merits of that decision reviewed. Other safeguards include: being able to access documents which might be relevant to an administrative decision made about you under the Freedom of Information Act 1982 (Cth); and privacy protections under the Privacy Act 1988 (Cth).
In International law Australia has ratified the two major treaties which set out civil and political rights and economic, social and cultural rights (the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) as well as a number of other major international human rights treaties.
When Australia becomes party to an international human rights treaty, it does not automatically become part of Australian law and is therefore not automatically enforceable in Australia. Rather, the rights have to be specifically incorporated into domestic legislation. Australia has a broad range of domestic legislation that recognises the human rights instruments to which Australia is a party.
The Human Rights and Equal Opportunity Commission Act 1986 (Cth) also helps to ensure that the rights contained in the International Covenant on Civil and Political Rights and other international declarations such as the Declaration of the Rights of the Child, the Declaration on the Rights of Disabled Persons and are recognised in Australia.
Under some international treaties that Australia has ratified, individuals can submit a complaint to a United Nations treaty committee concerning alleged human rights violation by an Australian government. For example, the committee can consider the complaint and make a non-binding recommendation.
John Pilger, New Statesman, July 10, 2000 available at http://www.globalissues.org/article/148/australia-and-human-rights [retrieved 15 Desember 2010]
http://www.humanrightsact.com.au/2008/ [retrieved 15 Desember 2010]
http://www.hrw.org/en/news/2010/12/08/australia-make-rights-foreign-policy-priority [retrieved 15 Desember 2010]
http://www.globalissues.org/article/138/human-rights-for-all [retrieved 15 Desember 2010]
www.humanrightsconsultation.gov.au [retrieved 15 Desember 2010]