2.3 domestic roles

DOMESTIC LAW

How does Australia incorporate Human Rights into Domestic Law?

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

The difference sources of Human Rights in Australian Domestic

Law

Statute Law

Common Law

Constitution

THE ROLE OF THE AUSTRALIAN CONSTITUTION 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)

DIVISION AND SEPARATION OF POWERSDivision 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”]

PROTECTION OF RIGHTS AND FREEDOMS – RIGHT BY RIGHTAttorney-General’s Department

http://www.ag.gov.au/RightsAndProtections/HumanRights/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

THE ROLE OF COMMON LAW AND AUSTRALIAN COURTS AND TRIBUNALS 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

THE AUSTRALIAN HUMAN RIGHTS COMMISSIONUnder 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.

ROLE OF THE AUSTRALIAN HUMAN RIGHTS COMMISSION

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 TriggsHuman Rights Commission President

CONFLICT BETWEEN GOVERNMENT AND HUMAN RIGHTS COMMISSION The Commission has been 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, 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.

NON-GOVERNMENT ORGANISATIONS 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

AMNESTY INTERNATIONAL AUSTRALIAhttp://www.amnesty.org.au/indigenous-rights/?

THE AUSTRALIAN RED CROSShttp://www.redcross.org.au/social-inclusion.aspx

JESUIT REFUGEE SERVICE AUSTRALIAhttp://www.jrs.org.au/asia-pacific-regional-ngo-workshop-highlights-need-for-alternatives-to-detention/

ROLE OF THE MEDIA 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

AUSTRALIAN CHARTER OF RIGHTSArguments 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

AUSTRALIAN RESPONSES TO CRITICISMA few examples

TOONEN V AUSTRALIA 1992 - SEXUALITYIn 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.

A V AUSTRALIA 1993 - IMMIGRATION 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.

ELMI V AUSTRALIA 1998 - TORTUREIn 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.

'NOPE, NOPE, NOPE': AUSTRALIA WILL NOT RESETTLE REFUGEES

"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

AUSTRALIANS 'SICK OF BEING LECTURED TO' BY UN, AFTER REPORT FINDS ANTI-TORTURE BREACH

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

UN HUMAN RIGHTS COUNCIL RECOMMENDATIONS - UNIVERSAL PERIODIC REVIEW

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