HUMAN RIGHTS IN AUSTRALIA

Promoting and Enforcing Human Rights

Incorporation of Human Rights into Domestic Law

1. International Treaty is negotiated and formed – signing of agreement

2. After signing a country is now obliged to act in the spirit of the treaty, but its not binding

3. Countries can make the treaty legally binding and enforceable by ratifying

4. Australia being a dualist system, international law becomes binding when legislation is incorporated into domestic law

HSC Human Rights questions 2010

Which of the following is an example of a collective right? A. Free Speech B. Union Membership C. Religious Freedom D. Self-determination What is meant by the term state sovereignty? A. International law recognises a nation state B. a nation state is recognised by other nation states C. International law gives power to nation states to make laws D. A nation state can determine its laws without external interference An international treaty first becomes legally enforceable in Australia

when: A. enough nations adopt the treaty B. the Australian Government signs the treaty C. the Australian Government ratifies the treaty D. Commonwealth legislation is passed giving effect to the treaty

The Australian Constitution and Human Rights

Lays down the system of Australian Government Division of powers

Federal State Local

Separation of powers Legislative Power - Parliament Executive Power – Governor-General, The Ministry, Govt

Departments Judicial Power – High court and other federal courts

Protects specific human rights, including express rights and implied rights

Videos on the constitutionhttp://www.youtube.com/watch?v=ivc8jF9a2eo&feature=related

Video in class: The Constitution ABC

Expressed and Implied Rights in the Constitution

Expressed rights – minimal rights expressed in the constitution Freedom of religion (s116) Right to vote (s41) Right to trial by jury (s80) The right for the commonwealth to acquire property

on just terms – The castle movie (s51)Implied rights – rights that must have been

intended in the constitution Freedom of political communication

Statute Law and Human Rights

Powerful tool in human rights protectionMany treaties have been ratified through this

law systemHowever, many rights can be changed

through legislation reform Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Australian Human Rights Commission Act 1986 (Cth) Age Discrimination Act 2004 (Cth) Anti-Discrimination Act 1977 (Cth)

Common Law and Human Rights

Based upon precedent, which overtime protects rights

However, Statute overpowers Common. Rights can change overtime

Rights can be protected on a case by case basis Presumption of innocence Right to a fair and efficient trial Burden of proof for the defendant

Courts and Tribunals

Australian Human Rights Commission Deals with alleged violations of Australia’s anti-

discrimination legislation Receives and investigates complaints Promotes public awareness Gives advice to parliament on development of human

rights lawHigh Court of Australia

Has the power to set binding precedents on lower courts and is able to overturn state and federal legislation

Arguably the most important protector of human rights in Australia

Non-Government Organisations

Large amount of NGO’s involved in human rights

Ability to shape public opinion and expose violations of rights by governments and individuals

e.g. The treatment of asylum seekers from the pacific solution

The Media

Large influence on public opinion involving violations

Australia is ranked one of the top countries for media freedom – ABC and SBS.

Freedom of the press in the World

Charter of Rights for Australia?

Australia does not have a set Charter of Rights

Other countries have a Bill of Rights – USA and New Zealand

Arguments For and Against a Charter of Rights for Australia (important HSC section)

The End of Human Rights