incorporation of human rights into domestic Australian law

1. How does Australia incorporate Human Rights into Domestic Law?

2.  Incorporation of Human Rights into Domestic Law
 Roles of
 Constitution
 Division of Powers
 Separation of Powers
 Statute Law
 Common Law
 Courts and Tribunals
 NGOs
 The Media
 Charter of Rights - arguments for and against

3. The difference sources of Human
Rights in Australian Domestic Law
Statute Law
Common
Law
Constitution

4.  Only contains a few references to Human Rights
 s.24 right to vote
 s.51(xxxi) right to acquisition of property on just terms
 s.80 right to trial by jury
 s.116 freedom of religion
 s.117 the right not to be discriminated against as a result of residence in one state
 Some rights have been found by the High Court to be “implied” in the Constitution
 Australian Capital Television Pty Ltd v Commonwealth (ACTV) – implied freedom of political
communication
 Some attempts to remove human rights have been found to be unconstitutional,
because the rights were explicitly protected in our Constitution
 Roach v Electoral Commissioner (2007) – right to vote (prisoners)

5. Division of Powers
 distribution of legislative rights between
The Commonwealth and the States
Separation of Powers
 separation of the Commonwealth into 3
arms
 legislature (parliament)
 executive (government & its departments)
 judiciary (court system)
 all branches are equal before the law [“rule
of law”]

6. Attorney-General’s Department
 https://www.ag.gov.au/RightsAndProte
ctions/HumanRights/Human-rights-
scrutiny/PublicSectorGuidanceSheets/
Pages/default.aspx
 Written for Public Servants – list of
human rights protected under
Australian federal legislation
Australian Human Rights
Commission
 https://www.humanrights.gov.au/rights-
and-freedoms-right-right-0
 AHRC’s list, which includes
explanations of shortcomings and
recommendations for improvements

7.  Our common law was inherited from the UK. The Magna Carta (1215) was the first
human rights “treaty” - between King John and his Barons.
 Traditionally, common law was the primary source of protection of individual and
collective rights (although this is changing)
 Common law is limited in how much it can protect our rights by the fact that parliament
can reverse its decisions through legislation – some people say this is a serious
limitation, and this makes common law rights insignificant
 Common law has also impeded human rights in Australia
 Right to legal representation
 Right to appeal
 Right to silence
 Discretion to admit evidence unlawfully gained

8. Under the Australian Human
Rights Commission Act and
Australia's Federal
discrimination laws, the
Commission has important
functions in promoting and
protecting the human rights
which Australian
governments have promised
to respect, protect and
ensure.

9.  The Australian Human Rights Commission Act
1986 details the powers and functions of the
Australian Human Rights Commission (the
Commission) as the Commonwealth agency
responsible for monitoring and promoting
human rights protection.
 The Commission also has responsibilities
under the Racial Discrimination Act 1975, the
Sex Discrimination Act 1984, the Disability
Discrimination Act 1992, and the Age
Discrimination Act 1996.
 The principle of non-discrimination is a
fundamental one in human rights law - all
human rights should be enjoyed by everyone
regardless of factors such as race, sex or
disability.
Gillian Triggs
Human Rights Commission President

10.  The Commission was critical of the Government in 2015, particularly in relation to its
treatment of asylum seekers and the “rule of law” (in regards to plans to revoke
citizenship rights)
 The Commission published a report in February 2015, The Forgotten Children, calling
for a Royal Commission into children in detention
 The Government has responded to these calls with severe criticism of the
Commission President, Gillian Triggs, putting pressure on her to resign – she has
refused to do so.

11.  There are a number of NGOs involved in human rights in Australia
 They shape public opinion and expose violations of rights by governments and
individuals.
 Asylum seekers and immigration detention
 Indigenous issues
 Domestic violence
 Shelter
 Often involved in reporting to international organisations

12. http://www.amnesty.org.au/indigenous
-rights/?

13. http://www.redcross.org.au/social-
inclusion.aspx

14. http://www.jrs.org.au/asia-pacific-
regional-ngo-workshop-highlights-
need-for-alternatives-to-detention/

15.  Able to influence and direct public opinion regarding human rights violations
 Australian press is considered “free”
 ABC and SBS in particular have a history of breaking stories which uncover human
rights issues
 Four Corners ABC
 About Woomera 2003
 The Manus Solution 2014
 Lateline ABC
 Family pleads for [Jovicic]’s return 2005
 Dateline SBS
 Turned back to Torture 2014

18. Arguments For
 Most other nations have them
 It would consolidate and improve
protection of rights
 Makes it more difficult for governments
to remove rights
 Would improve our international
reputation
Arguments Against
 Rights are already protected in
legislation
 A Bill of Rights would shift power away
from parliament
 Can be very difficult to change, if the
need arises (eg: US gun rights)
 May protect the rights of minorities and
criminals, more so than ordinary
Australians
 Will lead to more appeals and clog our
courts

19. A few examples

20. In 1991, Nicholas Toonen, a homosexual man from Tasmania, sent a communication to
the Human Rights Committee. At that time homosexual sex was criminalized in
Tasmania. Toonen argued that this violated his right to privacy under Article 17 of the
International Covenant on Civil and Political Rights (ICCPR). He also argued that
because the law discriminated against homosexuals on the basis of their sexuality, it
violated Article 26. As a result of his complaint to the Human Rights Committee, Toonen
lost his job as General Manager of the Tasmanian AIDS Council (Inc), because the
Tasmanian Government threatened to withdraw the Council’s funding unless Toonen
was fired. The Human Rights Committee did not consider Toonen’s communication until
1994, but it ultimately agreed that because of Tasmania’s law, Australia was in breach of
the obligations under the treaty. In response to the Commission’s view, the
Commonwealth Government passed a law overriding Tasmania’s criminalization of
homosexual sex.

21. In 1993 a Cambodian asylum seeker, identified only as A, complained to the Human
Rights Committee that Australia had violated his rights under the ICCPR by detaining
him in immigration detention for more than four years. The Human Rights Committee
agreed that Australia had violated Article 9 of the Convention because A had been
subject to arbitrary detention and denied an effective opportunity to have the lawfulness
of his detention reviewed by a court. The Committee stated that Australia should pay
compensation to A, but unlike in the Toonen case, the Australian Government rejected
the Human Rights Committee’s view and refused to pay compensation to A. In most
subsequent cases where the Human Rights Committee has found that Australia has
violated the ICCPR, the Australian Government has rejected those views.

22. In 1998 Mr Sadiq Shek Elmi, a failed asylum seeker, lodged a complaint with the
Committee against Torture. He claimed that his deportation to Somalia would constitute
a violation of Article 3 of the Convention against Torture, because he was a member of
a member of a minority clan which had a well-documented history of persecution in
Mogadishu. There was evidence that other members of his family had been targeted by
that clan.
The Committee determined that Australia had an obligation to refrain from forcibly
returning Mr Elmi to Somalia or to any other country where he runs a risk of being
expelled or returned to Somalia because of the danger of him being subjected to torture
in Somalia. The Committee noted that the majority clan in Mogadishu could be regarded
as exercising de facto control, and was therefore responsible for any acts of torture for
the purposes of the Convention. Mr Elmi was subsequently permitted to stay in
Australia.

23. "I'm sorry. If you want to start a new life, you come through
the front door, not through the back door," Mr Abbott said.
But Indonesian Foreign Ministry spokesman said Australia
could not ignore the Rohingya humanitarian crisis. "My
point is this: countries that are parties to the convention on
refugees have a responsibility to ensure they believe in
what they sign.”
http://www.smh.com.au/federal-
politics/political-news/nope-nope-
nope-tony-abbott-says-australia-will-
not-resettle-refugees-in-migrant-crisis-
20150521-gh6eew.html

24. A UN report, by the UN's special rapporteur on torture,
finds Australia is violating the rights of asylum seekers on
multiple fronts under the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or
Punishment.
The report, which will be tabled at the UN Human Rights
Council in Geneva, has been rejected outright by the
government. http://www.smh.com.au/federal-
politics/political-news/tony-abbott-
australians-sick-of-being-lectured-to-
by-united-nations-after-report-finds-
antitorture-breach-20150309-
13z3j0.html

25.  In January 2011 Australia was reviewed by the UN
Human Rights Council during the Universal Periodic
Review (a process whereby the human rights
performance of all UN member states is reviewed by
other states).
 In June 2011 Australia provided its response to the 145
recommendations made by the Human Rights Council.
 The Government has accepted over 90 per cent of the
recommendations and has committed to incorporating
the recommendations it has accepted into the National
Human Rights Action Plan.
 In relation to refugees and asylum seekers, the Human
Rights Council made a number of relevant
recommendations. Australia has accepted some of
these, but rejected others. (See link)
http://www.humanrightsactionplan.org.
au/nhrap/focus-area/refugees-and-
asylum-seekers