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Human Rights in Australia
Transcript of Human Rights in Australia
1. Express rights
2. Implied rights
3. Structures in the Constitution ASYLUM SEEKERS Migration Regulations 1994 Indefinite detention for stateless persons is lawful Unpopular Minority: The right to a trial? the right to not be arbitrarily detained? the inadequacy of their protection the need for a bill of rights or the like A right that has been found to be included in the Constitution by implication Freedom of communication on political matters A right that is explicitly stated in the Constitution You have the right to: - 'just terms' on acquisition of property by the Commonwealth - trial by jury on indictment for Commonwealth offences - to free interstate trade and commerce - freedom of religion - not be discriminated against on the basis of out-of-state residence these rights are in the Constitution and are thus 'entrenched' (referendum) UK: 15 express rights NZ: 20 sections on rights Canada: 15 sections rights General Overview of 5 Express rights + 1 Implied right Protection of rights: Structural Protection Representative Government Representative
Government Government will pass laws that reflect the views of the majority Regular elections act as a 'threat' to a the government and provide voters with the opportunity to 'correct' human rights abuses If the government does pass a law that breaches human rights, (in theory) they will be voted out of office Laws that breach rights should (in theory) not pass parliament Protection of rights: Structural Protection Australia's constitutional approach to protection on rights is heavily reliant on the structures within the Constitution + - Positive aspect: Negative aspects: Government can pass laws to add/change or remove rights to keep the law consistent with the views of the majority Racial Discrimination Act 1975 (Cwth) Sex Discrimination Act 1984 (Cwth) Parliament can remove these whenever it desires Laws are easily removable does not protect unpopular minorities period between elections Unpopular Minorities LESBIANS & GAYS a right to privacy and security?
a right to not be subjected to any cruel and unusual treatment or punishment?
a right to equality before the law?
a right to freedom from discrimination?
a right to vote? Unpopular Minorities A Bill of Rights Do we really need one? Why don't we have one? What exactly would it do? Opposition to a bill of rights Those against a bill of rights argue that: There's no need for it We can leave it to parliament 1. 2. The founders of the Constitution deliberately rejected a US model of rights protection 98% Universal Declaration of Human Rights International Convenant on Civil and Political Rights UN Human Rights Committee We can leave it to parliament 3. Limited Rights Limited Protection 35,000 87% in favour The Committee found that: "Improving protection of human rights is seen as desirable and possible, but, because of perceptions of an existing sufficiency or protection, generally not urgent." Marriage Amendment Act 2004 "marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life" Insert: equality before the law? freedom of religion? a right applies to everyone Unpopular Minorities: MUSLIMS - THE BURQA Provide a solution for our societal problems Recognise universal rights Increase rights protections and enforcement Australian National University 70.6% Charter of Human Rights and Freedoms Act 2006 (Vic) 21.8% 7.4% Human Rights Act 2004 (ACT) Improve and enhance transparency in our governmental institutions, Allow the High Court of Australia to declare legislation that breaches the rights within the bill invalid and inoperable Increase the rights we have, Make it difficult for these to be removed, A constitutional bill of rights would: General Definitions: Parliament: The Government: A Bill of Rights: Constitution: A Right: A national representative body (consisting of elected members) having supreme legislative powers within the state and/or nation. Consists of the Government, the Opposition, Independents and Minority Groups. Parliament has a lower house and an upper house + a Queen's representative. The politcal party that holds the majority of seats in the lower house of parliament. A document that provides a set of rules by which a country or state is run; the supreme law. A legally-protected entitlement that everyone possesses and cannot be taken away. A bill of rights is a list of the most important rights to the citizens of a country. The purpose of these bills is to protect those rights against infringement. freedom of religion? FOR AGAINST UNDECIDED Thank you It depends... A statutory bill of rights would: Increase the rights we have, Allow the High Court to declare legislation incompatible with the bill and send it back for further consideration Provide a legal imposition on the legislature to focus on the protection of Human Rights Bring Australia back in line with the rest of the world Promote tolerance & acceptance "fundamentally anti-democratic" John Hatzistergos: Encourage rights-based interpretation of legislation "There is a lot of theory in our democratic government..." The Hon Justice Michael Kirby: Structural Protection Seperation of Powers Separation of
Powers Protection of rights: Legislative Power Judicial Power Executive Power National Human Rights Consultation IN AUSTRALIA “Ambivalence about human rights is one of the great anomalies of life in Australia. We do, by and large, believe that human rights matter, and we are broadly egalitarian in our disposition. Nevertheless, we have managed in our short history to ignore some outrageous denials of human rights. The explanation, I think, lies in that sort of blindness that afflicts the privileged. Human rights matter, we all agree. By this we mean: ‘My human rights matter; the human rights of my family and friends and neighbours matter’. But after that, we are less sure. It is hard to resist the conclusion that we care little for the human rights of people we fear or hate.” Julian Burnside: YES - freedom of communication on political matters