Human Rights Protection In Australia Research Articles

Constitutional Change: Towards Better Human Rights Protection in Australia

Many legal scholars contend that Australia does not have a charter of rights in its Constitution. The legal scholar Rosalind Dixon, however, suggests that the Constitution does include some provisions that could be viewed as resembling a (partial) bill of rights. This constitutional framework might cause one to ponder whether human rights are adequately protected in the Australian constitutional system. This paper attempts to consider this question. It is argued that the protection of human rights under the Constitution, federal and state laws is not fully capable of responding to at least three human rights crises presented. Accordingly, the paper suggests that Australia should consider the idea of amending the Constitution in order to better human rights protection in the country. It offers suggestion that the Canadian model protection of human rights could be considered as one of the primary sources for reforms in the future.

Voices in the Human Rights Dialogue

Framework for human rights protection in Australia - report of the National Human Rights Consultation Committee - the role of resolution of human rights complaints in the enforcement of human rights - use of alternative dispute resolution (ADR) - current role of the Australian Human Rights Commission (AHRC) - future role as an advocator and crusader for victims of human rights abuses - need for recognition and protection of the special status of the AHRC.

Beyond the legalese and rhetoric: improving human rights protection in Australia

The National Human Rights Consultation recently conducted in Australia and culminating in the government's new Human Rights Framework engaged a remarkable number of Australians on the question of how to better protect human rights, short of modifying the Constitution. However, the debate was frequently dominated by polemical views (often waged among lawyers) in which rhetoric and legalese flourished. Pro-rights groups almost universally supported the adoption of a Human Rights Act based on the so-called dialogue model, represented in statutes adopted in the United Kingdom, Victoria and the Australian Capital Territory. This article examines that preferred model — as supported by the report of the Consultative Committee, but ultimately not adopted by government — within the context of the Australian constitutional framework. It concludes that, although it is capable of working well at the state and territory levels in Australia, the model (at least in its present form) sits uneasily within Australia's federal constitutional context. While charter proponents have been at pains to assert the constitutional validity of the dialogue model, validity alone is not the only concern; the legitimacy of the High Court is also potentially weakened through the conferral of a remedial power incompatible with the court's role in conducting judicial review. Consequently, calls for a dialogue model charter at the federal level, containing the declaration of incompatibility as its centerpiece, are rejected. Instead, two alternative reform options are presented: the first involving a variation of the preferred dialogue model; the other involving a suite of alternative reforms similar to, but more far-reaching than, those recommended by the Brennan Committee. With Australia's Human Rights Framework set to be reviewed in 2014 (Commonwealth of Australia 2010, 3), such proposals remain relevant to the ongoing discussion that is set to continue over the coming years.

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.

Human Rights Protection in Australia: Interpretation Provisions and Parliamentary Supremacy

Human Rights Protection in Australia: Interpretation Provisions and Parliamentary Supremacy

Human Rights Protection in Australia: Interpretation Provisions and Parliamentary Supremacy

In Ghaidan v Mendoza,1 the English Court of Appeal held that s 3 of the Human Rights Act 1998 (UK) c 42 required that a previously enacted UK statute be interpreted so as to preclude express or implied discrimination against same-sex couples, consistently with art 14 of the European Convention on Human Rights.2 The Court considered that s 2(2) of the Rent Act 1977 (UK) c 42, which referred to a person living with the original tenant 'as his or her wife or husband', should not be read to exclude same-sex couples. Buxton LJ stated that the principle of deference to the will of Parliament did not assist in deciding the case.3 Section 2(2) was interpreted as applying to a person living with a tenant 'as if they were his or her wife or husband',4 despite the fact that the UK Parliament intended it to be restricted to partners of the opposite sex. The position would be different, however, if the Commonwealth Parliament enacted a provision similar to the one under consideration in Ghaidan v Mendoza, despite the enactment of internationally recognised rights in the Sex Discrimination Act 1984 (Cth).5 The traditional doctrine of parliamentary supremacy would require Australian courts to give effect to the later Act, even if it abrogated rights contained in the Sex Discrimination Act. These different approaches to legislation that affects the