Beruflich Dokumente
Kultur Dokumente
Admitted as
and
MELISSA CASTAN
BAILLB (Hans) (Monash), LLM (Me/b), PostGradDipEd (Monash)
LAWBOOK CO.
2013
Published in Sydney by
Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668
100 Harris Street, Pyrmont, NSW
National Library of Australia
Cataloguing-in-Publication entry
Gerber, Paula
Contemporary perspectives on human rights law in Australia/
Paula Gerber; Melissa Castan general editors.
Includes index.
ISBN 978 0 455 22997 3 (pbk.)
Human rights-Australia Civil rights-Australia Constitutional
law-Australia
Gerber, Paula.
Castan, Melissa.
323.0994
2013 Thomson Reuters (Professional) Australia Limited
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INTRODUCTION
Australia has just come through a period of reflection regarding
the value of human rights. After extensive consultation, the 2009 Human
Rights Consultation Report concluded that human rights are important to
Australians. In particular, it was recorded that:
Most of the people who attended the community roundtables and presented
written submissions to the Committee wanted to see greater protection and
promotion of human rights and responsibilities. Only a minority believed our
current protections are adequate. 1
This chapter provides an overview of the main themes within the book and
in so doing identifies some of the human rights issues confronting
Australia in the 21st Century.
THE LANDSCAPE
The opening chapters establish the Australian legal landscape in
which the protection and enforcement of human rights takes place. They
examine the international and domestic instruments that set out human
rights standards, and consider the way the executive, legislative and
judicial arms of government address these standards.
Phil Lynch provides an insightful account of Australia's "Human Rights
Framework", the Federal Government's response to the wide-raging
national human rights consultative inquiry, referred to above. The National
Human Rights Consultation Committee released it final report in late 2009,
with five key findings and a series of recommendations. 2 The most
significant recommendation was that Australia should have comprehensive,
enforceable human rights legislation, modelled on the United Kingdom's
Human Rights Act 1998 (which would be similar to the Victorian Charter of
Human Rights and Responsibilities Act 2006, and the Australian Capital
Territory's Human Rights Act 2004). This model of rights protection should
promote a dialogue about human rights between the three arms of
government and, of course, include the Australian community. Lynch
characterises the National Human Rights Consultation Report as producing a:
reasonably comprehensive and complementary range of legislative,
administrative, educative and practical measures which, if accepted and
implemented, would have made a substantial contribution to the promotion,
protection and realisation of human rights in Australia. 3
Australia's early involvement with the UN, both in terms of its formation
and the drafting of the Universal Declaration of Human Rights (UDHR) are
briefly considered. Australia's contemporary engagement with the UN's
human rights agenda is addressed, along with its responses to the work of
the UN treaty committees, particularly the Human Rights Committee,
being the treaty body charged with monitoring States' Parties compliance
with the International Covenant on Civil and Political Rights (ICCPR). Some
specific complaints and communications regarding Australia are
highlighted, before turning to Australia's appearance before the Human
Rights Council as part of the Universal Periodic Review process. Eastman
concludes that Australia's engagement with the UN on human rights issues
shows a wide gap between its international practice and its domestic
implementation." 6 It appears that Australia falls short when it comes to
effective implementation of international human rights standards.
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Once again, we see that although the level of engagement with, and respect
for human rights may be high in Australia, when it comes to compliance
with our international obligations, the current legal framework for the
protection of ESC rights is found wanting. Byrnes identifies short-term and
long-term strategies for improving the protection of ESC rights in Australia
including, incorporating explicit general guarantees of ESC rights in a
national or State or Territory charter of rights, amending anti-discrimination
legislation to cover all the grounds of impermissible discrimination
required to be addressed by the ICESCR, and giving the Australian Human
Rights Commission, and the equivalent State and Territory bodies,
jurisdiction to consider alleged violations of the rights contained in the
ICESCR.
Together these five chapters paint a detailed picture of the contemporary
human rights law landscape in Australia and provide the backdrop for the
chapters that follow.
6 See Chapter 5 by Kate Eastman at [5.180].
7 See Chapter 6 by Andrew Byrnes at [6.160].
generates a great deal of media attention, but also one that is increasingly
consuming the resources of parliament with no less than four marriage
equality bills currently in the Federal House of Representatives and Senate.
Legislation on this issue is also being considered in Tasmania, South
Australia and the Australian Capital Territory.
Paula Gerber and Adiva Sifris endeavour to cut through the rhetoric by
examining the issue of whether same-sex couples should be permitted to
marry through the lens of human rights. They do this by asking and
answering three questions, namely:
1. Is there a human right to marry?
2. What is marriage? and
3. Are civil unions the answer?
The authors conclude that Australia should become part of the international
trend to legalise same-sex marriage. Such a move would be consistent with
the non-discrimination provisions in the ICCPR, the right to family in the
ICESCR and the best interests of the child principle in the Convention on the
Rights of the Child. Furthermore, Gerber and Sifris note that creating a
marriage mimicking system for gays and lesbians, such as civil unions,
would entrench, rather than eliminate, discrimination.
a higher infant mortali~ rate, and a hi~her incidenc~ of diseases such as diabetes
mellitus, respiratory disorders, ear disease, eye disorders and some cancers,
among Aboriginal and Torres Strait Islander peoples. 16
Mick Gooda, the Aboriginal and Torres Strait Islander Social Justice
Commissioner at the Australian Human Rights Commission considers the
human rights protection for Indigenous Australians, using the UN
Declaration on the Rights of Indigenous Peoples (the Declaration) as a
framework for the discussion. His chapter begins by briefly evaluating the
human rights context for Aboriginal and Torres Strait Islander peoples. He
considers the burgeoning movement of Indigenous peoples' engagement
with the UN and the international human rights sphere, which is
increasingly promoting the rights of Indigenous peoples. Gooda notes that
the Declaration represents the current high point of the Indigenous
international human rights system, and provides authoritative leadership
and standards for the implementation of human rights norms applicable to
Indigenous peoples.
The extent to which Australia is complying with its international human
rights obligations is explored through an examination of three key human
rights issues confronting Aboriginal and Torres Strait Islander peoples in
Australia, namely:
1. Constitutional recognition of Aboriginal and Torres Strait Islander
Peoples;
2. Health equality; and
3. the Northern Territory intervention.
These three case studies "illustrate the complexity of human rights
challenges that confront Aboriginal and Torres Strait Islander peoples in
Australia" 17 and provide evidence of a legacy of disadvantage caused by
systemic discrimination, disempowerment and denial of human rights.
Gooda calls for a principled human rights framework, based on the
Declaration, to underpin Australia's responses to these and other challenges
faced by Aboriginal and Torres Strait Islander peoples.
The treatment of asylum seekers, particularly those arriving by boat, is one
of the most divisive human rights issues facing Australia today. Tania
Penovic analyses legislative and political contortions that the Federal
Government has undertaken in its efforts to address this issue. She notes
that:
rather than addressing public fear and hostility within a framework of human
rights, successive governments have characterised "boat people" as an
unwelcome incursion into Australia's territorial sovereignty. The consequent
demonisation of irregular maritime arrivals has underpinned policies which
16 Australian Bureau of Statistics, Measures of Australia's Progress, 2010, Cat No 1370.0
(Canberra, 2010), at http://www.abs.gov.au.
17 See Chapter 13 by Mick Gooda at [13.170].
10
undermine the rule of law and subvert the proper understanding of Australia's
human rights obligations under international law. 18
McSherry reviews current Australian laws that enable the detention and
treatment of individuals with mental impairments without their consent
through the lens of the UN Convention on the Rights of Persons with
Disabilities (CRPD) which Australia ratified in 2008.
Australia's mental health laws, which focus on involuntary detention and
treatment, appear to be inconsistent with key provisions of the CRPD
18 See Chapter 14 by Tania Penovic at [14.10].
19 Angus Houston, Paris Aristotle and Michael L'Estrange, Report of the Expert Panel on
Asylum Seekers (August 2012).
20 See Chapter 14 by Tania Penovic at [14.10].
21 See Chapter 15 by Bernadette McSherry at [15.10].
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ticularly those relating to the right to liberty and security of the person.
r::sherry demonstrates how the three goals of mental health legislationcess to treatment and the protection of the individual and others because
~~ a perceived risk of harm - have justified the existence of separate mental
health laws. However, mental health laws that enable the involuntary
detention of those with mental impairments breach Art 14 of the CRPD and
are thus inconsistent with international human rights standards. She
concludes that ensuring that Australia's mental health laws properly
"protect human rights in both theory and practice is an ongoing
22
cha11enge
If
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In each of these areas, Zifcak identifies areas where Australia's laws could
be constructively modified in order to bring them more closely into line
with the requirements of international human rights law.
The Australian Government has recently established the office of the
Independent National Security Legislation Monitor, whose first report
addresses many of the issues Zifcak foreshadows in his chapter. We must
wait to see whether the Monitor will keep human rights considerations
central to his deliberations and whether the amendments canvassed by
Zifcak will find their way into Australian counter-terrorism legislation.
The relationship between environmental concerns and contemporary
human rights standards presents a challenge to both international and
domestic law. Rowena Cantley-Smith tackles this complex problem in
Chapter 18 on the human right to a healthy environment. She reviews the
human-environment relationship in Australia, including the adverse
impact of environmental degradation on human rights. An examination of
the contemporary legal approaches to protecting the environment and
human rights at international and regional levels highlight the opportunities
that exist within the Australian legal system, for the development of the
legal recognition of the relationship between human rights and a healthy
environment.
Cantley-Smith observes that Australia has various legislative and judicial
avenues which could be used to advance recognition of a human right to a
healthy environment. Her study of comparative regimes demonstrates that
the introduction of such a human right is possible when there are law
makers who are willing to support its introduction and practical application.
She concludes that recognition of the relationship between the environment
and human rights is overdue and that it is high time Australia joined the
rest of the international community in expressly recognising a human right
to a healthy environment.
DIMENSIONS OF DIFFERENCE
The scope of religious freedom is an issue that has become
increasingly controversial in contemporary Australia. Carolyn Evans
considers the main methods that are used to protect the right to religious
freedom within the Australian legal system. She critically examines how
religious freedom relates to other human rights protected in Australia
within the context of the diverse, competing, expressions of the way in
which law and society can, or should, interact with religion. She notes that
there is a:
wide range of competing visions, including ideas of Australia as a "multi-faith",
"Christian" or "secular" society. These differing ideas give an indication of the
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ultiple visions that have underscored public debates on the priority given to
:ligious freedom and how it should be balanced against other human rights?5
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CONCLUSION
Australia's human rights record is positive when compared to
many other countries around the world, including, for example, states
where women are considered inferior to men and are subjected to
discrimination and inequality, 30 where children are trafficked, sexually
exploited and forced to serve as child soldiers,31 where homosexuality is
still punishable by death32 and where there are significant curtailments on
free speech. 33 However, as a wealthy, developed democratic nation, there is
enormous scope for improvement in the way human rights are promoted
and protected in Australia.
Australia has already demonstrated that it can be a world leader in a
number of diverse spheres, including, most recently, fighting smoking
29 See Chapter 22 at [22.110].
30 See, for example, Olivia Ward, "Ten Worst Countries for Women", TheStar.com (8 March
2008), at http://www.thestar.com.
31 For example, a significant number of children are known to be trafficked and work as
prostitutes in Thailand, Nepal, The Philippines and Brazil, and child soldiers are still
being used in a number of countries, including, Chad, the Congo Republic, Somalia,
Uganda, Myanmar and Colombia. See http://www.child-soldiers.org.
32 See, for example, Sudan, Mauritania, Somaliland, Saudi Arabia, United Arab Emirates,
Yemen and Iran.
33 See for example, Belarus, Cuba, Equatorial Guinea, Eritrea, Iran, Libya, North Korea,
Turkmenistan and Uzbekistan at http://www.freedomhouse.org.
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is transparent;