Chapter Sixteen: Australia's Approach to Human Rights

Question 1

Express rights

Answer 1

Rights which are specifically stated in the constitution, such as the right to religious freedom in section 116.

Question 2

Implied rights

Answer 2

Rights which are created through the High Court in their interpretation of the constitution because they believe that a certain section of the constitution implies a right. Section 7 and 24 for example outline the implied right to vote, which was upheld in the Roach v Electoral Commissioner in 2007.

Question 3

Human Rights and Equal Opportunity Commission

Answer 3

A body that was created in 1984 under the Human Rights and Equal Opportunity Act, which aimed to protect human rights and had significant judicial powers to resolve disputes until the verdict in Brandy’s case in 1995.

Question 4

Brandy’s case

Answer 4

A case in 1995 which ruled that the Human Rights and Equal Opportunity Commission was not a chapter three court and therefore could not hold any judicial power under the statute in which it was created. This significantly weakened the power of the Commission in protecting human rights.

Question 5

National Human Rights Consultation Committee

Answer 5

A body which was created in 2008 under the Rudd government, which aimed to do research and gather expert opinion on the potential creation of a statutory bill of rights. The committee ultimately led to nothing however.

Question 6

Parliamentary Joint Committee on Human Rights

Answer 6

Established by the Human Rights (Parliamentary Scrutiny) Act 2011, the PJCHR is a standing committee with the purpose of scrutinizing legislation that passes through Parliament under the human rights bound in a number of international conventions and covenants to which Australia has agreed to be bound.

Question 7

Anti-Discrimination Commissioners

Answer 7

People who are appointed under the Australian Human Rights commission and see to hear complaints of people who think their rights have been violated. They will most often refer the matter to conciliation to help resolve complaints.

Question 8

Conciliation

Answer 8

A form of alternate dispute resolution which acts as a less formal, less costly alternative to formal court action.

Question 9

Protocols

Answer 9

Protocols are international treaties that are optional and related to original human rights conventions and covenants. Protocols must also be ratified to take effect, for example, Australia has accepted and ratified the Optional Protocol to the Convention on the Rights of Persons with Disabilities.

Question 10

Northern Territory Intervention

Answer 10

An action which was undertaken by the Howard Government in 2007, to secure order in the Northern Territory after a report detailed excessive accounts of child abuse and rape. The order required the suspension of the Racial Discrimination Act of 1975.

Question 11

The Charter of Human Rights and Responsibilities Act

Answer 11

A 2006 act in the Victorian State Parliament which created a statutory bill of rights based on the constrained parliamentarianism principle.

Question 12

The Human Rights Act

Answer 12

A 2004 act in the Australian Capital Territory which creates a statutory bill of rights based on the principle of constrained parliamentarianism.

Question 13

Statement of compatibility

Answer 13

A report that must be made on all legislation that is passed showing how it corresponds with human rights as per the bills of rights in Victoria and the ACT.

Question 14

Deceleration of incompatibility

Answer 14

An action that can be taken by the Supreme Court in both Victoria and the ACT when the court believes that a certain piece of legislation does not conform with human rights, as per the bills of rights in both jurisdictions. These declarations require the minister responsible for introducing the bill to change the statue or justify its existence.

Question 15

‘Piggyback’

Answer 15

A term used to describe how in Victoria, a human rights abuse cannot be heard in court alone, it must be accompanied or ‘piggybacked’ by a different case in order to be considered. This is not the case in the ACT.

Question 16

Sunset Clause

Answer 16

A clause which is used to soften more controversial laws by stating a time by which the law or part of the law ceases to have any effect.

Question 17

Explain the basis of Australia’s approach to protecting human rights compared to that of the UK?

Answer 17

The political and legal system of the United Kingdom is the oldest in the world, and was constructed on its foundations to protect the rights of people against the tyranny of the monarchy. Their political system over time slowly eroded the power of the King and Queen and the legal system protected common people from being unjustly persecuted. Thus, the basis of protecting human rights in the UK has emerged from their history of struggle with the monarchy. Australia on the other hand was established as a colony in the late 18th century and federated in 1901 peacefully from the United Kingdom, as independence from Britain was slowly and peacefully achieved. Government had to work hard to establish a growing economy in such a physically large nation with many remote areas, this developed a notion of trust or at least cooperation with the government for most people. Australia has therefore resisted a codified Bill of Rights, trusting instead the principle of constrained Parliamentarianism for the rights of the people to be protected.

Question 18

What rights are protected within the Australian constitution?

Answer 18

Australia does not have a rights based constitution, however there does exist some rights protection within the constitution. These are divided into express rights and implied rights. Express rights are specific enumerated rights within the constitution, there being only five which include:
- Section 116, the right to freedom of religion
- Section 80, the right to trial by jury for federal indictable offenses
Implied rights are created by the High Court through their interpretation of the constitution. Implied rights cannot be overridden by the Parliament, and the High Court has a certain degree of flexibility in interpreting the constitution, allowing some rights to adapt to changing social values within Australian society. An example of implied rights is the implied right to vote in Senate and House of Representatives through sections 7 and 24, as outlined in the Roach v Electoral Commissioner case in 2007.

Question 19

What rights are protected in statute law?

Answer 19

The Commonwealth Parliament has introduced several statutes which protect rights, statue law acts as the biggest protection of rights within Australia. Statute law which protects rights comes from a number of different sources, most of which come from ratified international conventions and covenants. Some of these include:
• The Racial Discrimination Act 1975
• The Disability Discrimination Act 1992
• The Sex Discrimination Act 1983

Question 20

Explain the original idea behind the Human Rights and Equal Opportunities Commission, and how this changed over time

Answer 20

In 1986, the Commonwealth Parliament attempted to create a single body with strong powers that could enforce human rights. This was the Human Rights and Equal Opportunity act, which created the Human Rights and Equal Opportunities Commission (HREOC) as the body to administer the new law. This is essentially the closest thing Australia ever had to a bill of rights. HREOC was designed to be a powerful dispute resolution body relating to human rights cases, and could create legally binding decisions in certain circumstances. HREOC held judicial power for a period of 9 years, until its exercise of judicial power was challenged in the case of Brandy V Human Rights and Equal Opportunity Commissioner in 1995. This ruling by the High Court removed the judicial power granted to the HREOC and thus significantly weakened it as a body that protected human rights.

Question 21

Explain the barriers that someone faces seeking redress for alleged human rights abuses?

Answer 21

After Brandy’s case in 1995, there is no single body that deals with resolving disputes relating to human rights. This means that if someone wishes to seek redress for an alleged human rights abuse, they must go through the normal court system which can be very costly and time consuming for people, which may present a barrier to some people attempting to seek legal action.

Question 22

What is the alternative to formal court action when seeking to address a human rights dispute?

Answer 22

The Australian Human Rights Commission recruits anti-discrimination commissioners which can hear complaints about human rights abuses and refer them to conciliation. The existence of these anti-discrimination commissioners and the role they play in public increases awareness around human rights and may serve to resolve some human rights complaints.

Question 23

Evaluate the significance of the Parliamentary Joint Committee on Human Rights in protecting human rights

Answer 23

The Parliamentary Joint Committee on Human Rights (PJCHR) reviews all legislation passed through Parliament under the international covenants and conventions that Australia has agreed to, such as the Convention of the Rights of the Child and the Convention on the Rights of Persons with Disabilities. Additionally, the publish a weekly report in both houses of Parliament which raises any human rights concerns in any legislation, thus holding the Parliament to account in terms of human rights and the international agreements Australia has signed up to. Interestingly, the Convention Relating to the Status of Refugees is not included on the list that the committee validates legislation by, which is done to allow for the current version of the Migration Act of 1958.

Question 24

Explain the significance of the Norther Territory Intervention

Answer 24

The Northern Territory Intervention was an operation conducted by the Howard Government in 2007. It was called in response to the Little Children are Sacred report which highlighted severe cases of social and legal crises in remote Indigenous Communities in the Northern Territory, including sexual assault, domestic violence and child abuse. The intervention ordered the Australian military to enter the Norther Territory to control the situation, however this action was not legal under the Racial Discrimination Act of 1975, because the direct targeting of Indigenous communities could be seen as racist and therefore unlawful. This meant that the Howard government had to amend the Racial Discrimination Act, something which it could easily do owing to its control of the Senate, in order to carry out the intervention. This can be viewed as an example of how weak and vulnerable statutory human rights can be, but on the flipside, this can also be viewed as an example of how statutory rights are flexible and can be changed to suit current social values and expectations. People did not want to continue allowing Indigenous women to be raped, after all.

Question 25

Explain how the Victorian and ACT statutory bills of rights work

Answer 25

The Victorian and ACT statutory bills of rights are created under The Charter of Human Rights and Responsibilities Act 2006 and the Human Rights Act 2004 respectively. Both bills of rights operate in very similar ways, they both require the legislatures and public service in each jurisdiction ensure that all legislation and decisions do not contradict human rights, based off the International Covenant on Civil and Political Rights. All legislation passed in these jurisdictions must have a statement of compatibility issued with them, which informs how the act does not impede on human rights. Courts in these systems are also required to interpret cases in light of human rights, and if cases are brought before the Supreme Court in which a piece of legislation conflicts with human rights, the courts may issue a statement of incompatibility, which forces the minister who introduced the act review the act. This forces the issue, the minister is not required to suspend the act, however there is pressure on them to justify why the act conflicts with human rights, a justification which will ultimately be held to account by the people.

Question 26

What is the main difference between the ACT and Victorian statutory bills of rights?

Answer 26

The main difference between the ACT and Victorian bills of rights is the fact that the Victorian bill of rights requires someone to ‘piggyback’ a complaint over human rights abuses with another case, human rights abuses cannot be heard on their own. This is not the case in the ACT, where disputes over alleged human rights abuses can be heard directly in court by themselves.

Question 27

List the advantages and the disadvantages of the bills of rights in the ACT and Victoria

Answer 27

Advantages:
• The bills of rights increase awareness of human rights
• They foster a positive culture of human rights
• The improve the service and conditions of government agencies, through audits as well as general correspondence
Disadvantages:
• An argument on giving too much power to unelected judges can be made here, although it does not hold very much weight, since judges cannot actually throw out laws
• The opposite argument can be made, the rights within the acts are not strongly enough protected because the judiciary has no real power to ensure that the rights are followed
• The bills of rights do not actually specify any remedies that are granted in breaches of human rights, they only seek to prevent such abuses
• In Victoria, someone has to ‘piggyback’ their case regarding human rights in order to have it heard

Question 28

Give an example of both the bills of rights in Victoria and NSW in action

Answer 28

For Victoria, the Castles case (2010) serves as an example of The Charter of Human Rights and Responsibilities Act in action. Kimberly Castles was serving a prison sentence and wanted to receive IVF treatment in prison so that she could be fertile when she got out of prison. The prison denied to grant her the service, so Castles sort legal action under the Victorian Corrections Act 1986 and tied her human rights complaints to an issue within that act. She was ultimately granted the right to have IVF treatment for her time in prison by the court through her ‘piggybacking’ of human rights abuses of privacy, family and humane detention onto another case. The Nona case (2012) is based on the fact that Nona was charged with four offences in 1998 which were never carried out, however renewed legal action in 2012 was challenged by Nona who applied for a permanent stay of proceedings, which would have the case set indefinitely aside, under the basis of the Humans Rights Act 2004 which included the right to be charged without ‘unreasonable delay’.

Question 29

What are some common-law rights that are upheld in Australia?

Answer 29

The states are given residual power over criminal and civil law, which means that most common-law rights are established within state jurisdictions. Common law rights are almost all legal rights, and include:
• The right to a fair trial
• The right to the presumption of innocence
• The right to silence
Additionally, common law rights can be created by judges and applied to different courts through the doctrine of precedence. An example is the Dietrich case of 1992, which established the common law right to legal representation.

Question 30

How are rights protected through common law vulnerable to executive dominate parliaments? Give a recent general example of how common law rights are being manipulated

Answer 30

Statutory law overrides common law, so if the government sees fit they can pass laws which invalidate common law rights. Populist pressures such as ‘tough on crime’ stances or an increased pressure to deal with the threat of terrorism may motivate governments to attempt to suspend certain common law rights in certain situations. Since 2001 for example, the Commonwealth government has passed a number of statutes under counter terrorism that restrict legal rights for certain people:
• The right to a fair trial has been infringed by terrorists not being allowed to know what they are charged with
• The right to the presumption of innocence can be violated by the allowed detention of suspected terrorists without trial for a period of seven days
• The right to silence which is possibly infringed because terrorists can be incriminated for not answering questions
Such laws also contain controversial provisions such as control orders and preventative detention orders, which allow the executive to impose sanctions on merely suspected terrorists as opposed to convicted terrorists. Some of these more controversial laws do include sunset clauses however, which deem a time limit for a law after which it ceases to have effect.

Question 31

Explain how Australia’s current and recent policy on asylum seekers is a human rights issue

Answer 31

Since 2001, Australia has implemented harsh policies that are designed to prevent the attempts of asylum seekers to take the dangerous journey by boat to Australia which has historically resulted in many offshore deaths. Australia is a signatory to the UN Convention Relating to the Status of Refugees 1951, and has ratified parts of this in the 1958 Migration Act. Recent and current policies of Australia to deter asylum seekers from coming to Australia by boat have included the following:
• Mandatory offshore detention for asylum seekers and refugees arriving to Australia by boat at Manus Island, Nauru and Papua New Guinea
• Offshore resettlement for those who come by boat, in Cambodia and Papua New Guinea
• The policy that no refugee arriving by boat will ever be able to resettle in Australia
The policy of the Australian government has also included various other policies at times, and many of those policies and the ones mentioned above have attracted significant criticism from the UN. The conditions of the centres at Manus Island and Nauru are extremely poor, there are reports of violence and rape and many detainees suffer severe mental health consequences from their lack of hope. Those who have been forced to return to their countries have reportedly been persecuted. Additionally, reporters are not permitted to travel to or report on the centres under the Abbott and Turnbull governments, and doctors and other employers working at the centres are not permitted to talk about their experiences there unless risk criminal prosecution. Australia has in a sense a moral dilemma, to continue these harsh policies to prevent deaths at sea or to find another solution to the issue, but it is clear that human rights are clearly being violated as part of Australia’s current policy on asylums seekers.