Federal Human Rights Research Articles

Twenty Years of Human Rights Protection in the Australian Capital Territory: What Have We Learned

In 2004, the Australian Capital Territory (‘ACT’) became the first Australian jurisdiction to enact human rights legislation. Victoria and Queensland have followed since, and the Australian Human Rights Commission recently renewed the call for federal human rights protection. Legislative developments in one jurisdiction can lead to reforms in others. As such, there is much we can learn from the ACT’s experience. This article investigates the impact and influence the Human Rights Act 2004 (ACT) has had in its first 20 years of operation based on interviews with lawyers and public servants who represent or work with human rights complainants or respondents. The findings suggest the legislation is having its greatest impact outside the courtroom by influencing decision-making processes within the executive and as a mechanism for resolving disputes early on. Barriers to access remain, notably a lack of awareness in the community and limited use of the legislation by the legal profession.

An end to the patchwork quilt? The guarded potential of the PJCHR’s inquiry into Australia’s human rights framework

ABSTRACT Australia’s Human Rights Framework is over a decade old, and the patchwork quilt of protections is fraying at the seams, unable to deliver the human rights protection needed. Yet, the Commonwealth Attorney-General’s referral of an Inquiry into Australia’s Human Rights Framework to the Parliamentary Joint Committee on Human Rights (PJCHR) offers an opportunity for ambitious reform. This commentary provides an overview of the work of the ongoing Inquiry into Australia’s Human Rights Framework to date and an analysis of the guarded potential for ambitious human rights reform through the long-overdue enactment of a Federal Human Rights Act.

Governing in Troubled Times: Exploring Australia’s Commitment to Human Rights Through Statements of Compatibility under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)

The Australian government has emphasised social cohesion in addressing contemporary challenges. Arguing the legal protection of human rights could support social cohesion, this article examines the most recent federal human rights initiative – the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). While the Act’s effectiveness has recently been assessed, assessments relied on analysis of Statements of Compatibility produced before 2016. The article addresses this gap. Analysing 46 statements from the final six months of 2019 against criteria derived from the scrutiny regime, it argues statement quality was generally poor, supporting existing conclusions the Act is relatively ineffective. It argues reform is required, suggesting a National Human Rights Act should be re-examined. This could both protect human rights in Australia and support social cohesion in a challenging global environment.

The Last Holdout: Ireland, the Right to Abortion and the European Federal Human Rights System

The article examines the recent May 2018 constitution referendum legalizing the right to abortion in Ireland, and claims that this must be explained in light of the transformative effect that supranational law – and notably the case law of the European Court of Justice and the European Court of Human Rights – had on the Irish legal system. While in comparative perspective Ireland stood at the extreme by being the European country with the toughest abortion ban, subsequent developments at the supranational level had edged the Irish abortion prohibition and exposed the inconsistency of this regime with European free movement principles and human rights norms. By empowering social actors at the domestic level that sought a repeal of the national abortion ban, international courts favored a dynamic of transformation typical of the European federal human rights system which, also due to the diminishing influence of the Catholic Church in Ireland, eventually resulted in a landslide popular vote to recognize a right to abortion. As the article maintains, otherwise, as the result of the constitutional referendum in the Republic is quickly producing spill-over effects also in Northern Ireland – the only part of the United Kingdom where abortion still remains essentially prohibited – which suggests that the process of expansion of reproductive rights in the island of Ireland remains ongoing and convergent, despite Brexit.

Use of Drug Dependency to Entrap and Control Victims of Sex Trafficking: A Call to a U.S. Federal Human Rights Response

Use of Drug Dependency to Entrap and Control Victims of Sex Trafficking: A Call to a U.S. Federal Human Rights Response

Forty Years of the Racial Discrimination Act

In October 1975, at a ceremony for the proclamation of the Racial Discrimination Act 1975 (Cth) ('the RDA'), then Prime Minister Gough Whitlam described the legislation as 'a historic measure', which aimed to 'entrench new attitudes of tolerance and understanding in the hearts and minds of the people'. The RDA was Australia's first federal human rights and discrimination law. Enacted shortly after the formal abandonment of the White Australia policy, it was also a legislative expression of a new commitment to multiculturalism.

Sosa v. Alvarez-Machain and Human Rights Claims against Corporations under the Alien Tort Statute

Contrary to the claims of some observers, the Supreme Court's decision in Sosa v. Alvarez-Machain does not sound the death knell for the use of the Alien Tort Statute to maintain human rights claims against private corporations in the U.S. courts. The decision clarifies the nature of claims under the Alien Tort Statue to some extent, and places some limits on the theories available in actions against private corporations, but for the most part such suits remain as viable after Sosa as they were before. That is not to say, however, that victims of corporate human rights violations in developing countries should hold out much hope that their lot will be bettered through Alien Tort Statute litigation in the United States. Even before Sosa, such suits had a chance of producing results favorable to foreign plaintiffs only with respect to a very narrow category of human rights violations. This paper first briefly describes the evolution of the Alien Tort Statute from the time it was reinvigorated in Filartiga v. Pena-Irala to the Supreme Court's decision in Sosa. It then discusses the implications of Sosa for human rights claims against private corporations and assesses the potential significance of federal human rights litigation as a mechanism for addressing the problems of those whose human rights are adversely affected by US corporations operating abroad.

Labour Arbitration of Co‐Worker Sexual Harassment Cases in Canada

AbstractWomen have the right to a workplace free from sexual harassment under Canadian provincial and federal human rights legislation. Canadian labour laws incorporate the right to a grievance procedure including binding arbitration where arbitrators must interpret and apply human rights legislation. This paper analyzes co‐worker sexual harassment cases in order to assess how well arbitrations protect the right of unionized women to a harassment free workplace. Results indicate that women complainants were often subjected to aggressive gendered cross‐examinations and the application of gendered jurisprudence that largely ignored the impact of gendered power relations in the workplace. The conclusion is that women's experiences in arbitrations are likely a deterrent to filing formal complaints, effectively undermining rather than protecting their rights. Copyright © 2012 ASAC. Published by John Wiley & Sons, Ltd.

Momcilovic v. the Queen: Implications for a Federal Human Rights Charter

This paper examines the implications of the High Court's recent decision in Momcilovic v. The Queen for the adoption of a dialogue-based human rights charter along the lines of that suggested by the National Human Rights Consultation. It argues that because of the cautious drafting of the NHRC model, Momcilovic’s impact will be modest, and that the majority of the NHRC remains constitutionally feasible. On the other hand, the limited judicial role envisaged in Momcilovic indicates that Australian courts are unlikely to engage in the judicial activism often cited in opposition to a charter. Momcilovic may therefore in fact strengthen the political case for a federal dialogue-based human rights charter, even if it legally constrains some of its key features.This is a work-in-progress; feedback is welcome and may be sent to the author at the link provided by SSRN.

A estratégia de políticas públicas em direitos humanos no Brasil no primeiro mandato Lula

Este artigo tem como foco a análise das consequências políticas da estratégia geral que orientou os programas-chave no âmbito do Governo Federal na área de direitos humanos, no quadriênio 2003-2006. Na primeira parte do texto, são discutidos temas considerados centrais para se pensar a trajetória dos direitos humanos no Brasil, a partir do fim do regime autoritário (1964-1985). O objetivo é contextualizar as vitórias e derrotas que marcam as tentativas de afirmação de padrões mais avançados de promoção e proteção dos direitos humanos na sociedade brasileira. Na segunda parte, é feita uma análise do encaminhamento dessa agenda no primeiro mandato do presidente Luís Inácio Lula da Silva. As fontes utilizadas foram documentos oficiais do governo, textos organizados por segmentos específicos da sociedade civil e artigos acadêmicos. Na conclusão, são apresentados os principais impasses dessa agenda e as críticas às visões economicistas que empobrecem a concepção integrada de direitos humanos, que orienta o ensaio.

Human Rights and Social Justice: the Convention on the Rights of Persons with Disabilities and the quiet revolution in international law

On the 60th anniversary of the Universal Declaration of the Human Rights (UDHR) the Commonwealth Attorney General announced a national public consultation concerning the need for better human rights protection in Australia and the viability of a federal human rights charter. Whether or not the anticipated Charter includes social, economic and cultural rights is directly relevant to questions of social justice in Australia. This paper argues that the legislative acknowledgment of civil and political rights alone will not adequately address the human rights problems that are experienced in Australia. The reluctance to include economic, social and cultural rights in human rights legislation stems from the historical construction of an artificial distinction between civil and political rights, and economic social and cultural rights. This distinction was articulated and embedded in law with the translation of the UDHR into binding international law. It has been accepted and replicated in judicial consideration of the application on human rights legislation at the domestic level. The distinction between the two forms of rights underpins a general ambivalence about the capacity of human rights legislation to deliver social justice and echoes a critical tradition in legal philosophy that cautions against the reification of law. Coming into force early in the 21st century, the Convention of the Rights of Persons with Disabilities illustrates the effort of the international community to recognize and eschew the burden of the false dichotomy between civil and political and economic, social and cultural rights. Acknowledging the indivisible, interdependent and indissociable nature of human rights in Australia is a crucial step toward achieving human rights based social justice.

Conciliation, Mediation and Federal Human Rights Complaints: Are Rights Compromised?

In Australia, formal discrimination complaints are generally resolved by alternative dispute resolution (ADR). In particular, complaints made under federal human rights legislation are usually resolved by conciliation or mediation. Part A of this paper outlines the use of ADR in federal human rights law. It describes the legislative and policy context in which ADR occurs. Part A outlines how ADR operates in practice - the processes of conciliation and mediation. This part of the paper also identifies the outcomes of ADR. Part B of this paper is an analysis of conciliation and mediation in the context of federal human rights law. It is a critical examination of the arguments for and against ADR. It concludes that, in practice, the process of conciliation does not compromise federal human rights.

Legal protection against racial discrimination in Canada

Abstract This article examines three aspects of Canada's legal provision against racial discrimination and suggests a number of improvements. Provincial and federal human rights legislation is the primary source of remedy for victims of racial discrimination but it has a number of drawbacks in practice. The Charter of Rights and Freedoms does, however, empower judges to strike down federal or provincial legislation or government action that discriminates on racial grounds. Second, the federal Employment Equity Act has made an attempt to induce employers to act affirmatively to eliminate discrimination against racial minorities but has been largely ineffective. Third, the incitement of racial hatred is prohibited by both the criminal law and by provincial and federal human rights legislation. The criminal law has proved to be a weak instrument, hedged with many restrictions, but human rights protection promises to be more fruitful.