Human Rights Law in Australia - Law Foundations

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Human rights, the inalienable rights and freedoms to which all humans are entitled[1] need constant protection. The human rights protection in the Australian law is not offered by either a constitutional or statutory Bill of Rights, but a collection of various legislation and court judgments. Thus, the role of the judiciary or the court systems in the human rights protection in individual cases becomes especially vital. This paper will begin with briefly discussing Australia’s human rights status and suggesting that the executive and legislative responses are inadequate and a greater role of the judiciary is needed. Then the paper suggests the judiciary must protect its independence to “dispense justice without fear or favour”[2], laying down the foundation for the rule of law and thus human rights protection. Secondly, because of the lack of explicit laws protecting human rights, the judiciary should infuse international human rights principles in judicial interpretation process to directly engage in the individual rights protection. Thirdly, the paper proposes that limited judicial activism is not necessarily breaching Australia’s representative democracy and the separation of powers, but instead, it can be an accessible instrument for the judiciary to apply international law obligations of Australia that have not been incorporate into the domestic law to protect individual rights. Finally the paper concluded that in general terms, the judiciary should have a more active and greater role in the protection of human rights in Australia.

Australia’s human rights status

The essence of universal human rights is that they apply to every individual. The general human rights status in Australia being “quite magnificent”[3] is simply not good enough. The fact that currently, the human rights are enjoyed by the majority, cannot justify the lack of substantive rights protection of the minority. Indeed, despite the absence of a Bill of Rights, Australia’s human rights status is relatively remarkable in the region. The rule of law and the representative democracy have protected most of the civil and political rights. But a series of violations have occurred against asylum seekers, racial, sexual minorities and so on.

From 1991 to 2006, twelve individual cases complained to the United Nations Human Rights Committee (UNHRC) were found breaches of the International Covenant on Civil and Political Rights (ICCPR).[4] A violation to the privacy right of ICCPR was found in Toonen v Australia (1994) when Tasmania outlawed homosexuality even in private. The Tasmanian legislature had not repealed the provisions until in Croome v Tasmania (1997) the High Court struck down those provisions on the grounds that they are inconsistent with effective Federal laws.[5]

Also, among the successfully complained cases, at least four involved asylum seekers, highlighting the human rights issues among the refugees.[6] For example, in A v Australia (1997), a Cambodian asylum seeker was held in mandatory immigration detention for over four years[7]. Whether or not he was treated reasonably in the detention centre, the fact that he lost his freedom for such a long period was a punishment without crime and trial and in direct violation of article 9(1) of the ICCPR[8]. The Bakhtiyari v Australia not only showed the long immigration detention of two children being arbitrary, but also violations of the children’s rights.[9] The then government simply rejected almost every finding of UNHRC by stating that they were only advisory and not true.[10] Based on those facts, it is safe to conclude that at least the executive and legislative branches in Australia are yet to fully address all human rights issues. The judiciary has shown its traditional role in statutory interpretation in Croome v Tasmania to strike down invalid State laws. The question left is what the judiciary can do to fill the gaps in the rights protection.

The independence...
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