Promoting and Enforcing Human Rights: In Australia

1. Outline how human rights are incorporated in Australian domestic law. (The incorporation
of human rights into domestic law).
Australia like the United Kingdom is a dualist system, meaning that simply igning a treaty
does not make it enforceable in Australian law. The way that human rights are incorporated
into Australian law is through the passing of Australian parliament legislation that echos the
word of the treaty that holds the human right or amends existing laws. 

2. Identify the role played by the Australian Constitution in protecting human rights.
(Including the division of powers and separation of powers).
The Constitution plays a role in limiting the abuse of power by the Government. It is a rule
book for all the participants within our democracy. It protects the people from any one person
or institution from having too much power. The Constitution is binding on every member of
the community including Ministers, Parliamentarians and Judges.
Separation of Powers: Parliament (legislatures), Judiciary (judges), Cabinet (executive):
The Constitution provides for ministers to sit in parliament and to be part of the executive,
which can make delegated legislation.

Judiciary: The independence of the judiciary is an essential mechanism for upholding the
rule of law, ensuring that all people, including the government, are equally subject to the
same law. The Australian Constitution also helps ensure that rights and liberties are
protected from the risk of abuses of power that could come with a politicised judiciary.

Division of Power: Federal and State 

The Australian Consitution defines the division of powers between the Commonwealth and
State. It’s role is to define how certain legislative power is divided between them. 
For federal, the Consitution allows the Commonwealth to make laws on section 51 and 52
of the constitution called heads of power.
For state, Powers that are not listed in the Constitution are residual powers – they are the powers
the states can use. States can decide to refer such powers to the Commonwealth, as they did, for
example, with air navigation and terrorism

3. What are the limitations with protecting human rights with common law?
Common law rights are not fixed – that is rights in the common law can be removed by any
Act of parliament. When any legislation brought by the parliament is in conflict with
common law position, that statue law will override that common law position. For example,
strict anti-terrorism laws that were passed by the Commonwealth Government in the
aftermath of the September 11 attacks on the United States in 2001, and after the Bali
bombings on 12 October 2002, were widely criticised as removing long-standing criminal
law rights for certain people. Human rights are also protected at a limited basis because
judgements made in the courts will only define those rights on a case to case basis.

4. How are human rights protected by statute law in Australia? Use examples to support your
response.
Statute law is a powerful tool in human rights protection and many laws have been wide reaching,
but like common law, rights laid out in statute are not fixed – they too can be removed by a later Act
of parliament further limiting the ability to protect human rights in Australia. For example the Racial
discrimination Act 1975 (Cth) allows for ‘special measures’. This is a form of positive discrimination
that aims to foster greater racial equality and protect human rights associated with race by
supporting groups of people who face, or have faced, entrenched discrimination so they can have
similar access to opportunities as others in the community.
5. With reference to international law and commonwealth legislation discuss the development
of human rights laws in Australia. You may use a flow chart or table to illustrate the
development.

International/ Commonwealth law Australia’s relation in developing human

rights
Australia ratified the Rome Statute of the
International Criminal Court in 2002, the
Commonwealth Parliament simultaneously
passed the International Criminal Court Act
2002 (Cth) and the International Criminal
Court (Consequential Amendments) Act
2002 (Cth) to enact the provisions of the
treaty into Australian law.
Convention on the Rights of the Child, Obligation of Australia is to promote
article 39 physical and psychological recovery from
past trauma in a healthy environment has
special relevance to children in immigration
detention in Australia since many are
asylum seekers who have come from
situations of armed conflict, or who have
otherwise been victims of abuse, torture or
cruel treatment.
AHRC deals with alleged violaions of the
Racial Discrimination Act 1975 (Cth) and
Sex Discrimination Act 1984 (Cth)

Article 27 of the Vienna Convention on the
Law of Treaties of 1969, a state cannot use
the provisions of its own law or deficiencies
in that law to answer a claim against it for
breaching its obligations under international
law.
International Convention on the
Elimination of All Forms of Racial
Discrimination that was opened for
signature on 21 December 1965 
All levels of government in Australia have to
play a role in protecting human rights, but it
will always be the Federal Government that
is ultimately accountable for any violations
to the international community: see Human
rights in State/Territory law.
Racial Discrimination Act 1975 (Cth)

6. Identify ONE important piece of human rights legislation in Australia. How effective is this
piece of legislation in protecting the rights of people in Australia?
It is highly recommended that you use the RDA S18C debate as the example.
(1 page).

Using Racial Discrimination Act (1975) Cth)

The Racial Discrimination Act is of somewhat effectivness in protecting the rights of peoplele
in Australian, partiuarly involving Indigenous Australians. The act aims to promote equality
before the law for all people regardless of race, colour or national or ethnic origin. It is
unlawful to discrimination against people on the basis of race, colour, descent or national or
ethnic origin. In the 2003 Case of Frederick Toben, the section was successful in
protecuting the Holocaust denier for publishing hate speech on his speech, contributing to
the effectiveness in adequately responding to the matter. However S18C of the act is among
the laws highlighted as having potential to interfere with Australian’s civil liberties in a recent
Australian Law Reform Commission Report. This section deems that is unlawful to ‘offend,
insult, humiliate or intimidate’ a person or group based on race, ethnicity or colour as well as
being subject to certain defences. For instance, that this section does not apply to words or
actions said or done in private. In 2011, Conservative journalist Andrew Bolt was also found
to be in breach of the law. Bolt had accused a number of Indigenous Australians, who are of
lighter complexion, of using their Indigenous identity purely for social or financial gain in his
newspaper column. This limits the effectiveness in terms of deception.

7. Outline the roles of the Australian Human Rights Commission and the High Court
of Australia in protecting human rights. Use examples to support your answer.
8. What role is played by NGO’s?
9. Outline the role of the following NGO’s- Human Rights Council of Australia,
Human Rights Law Centre and Amnesty International. Use examples to support
your answer.
10. The media hinders the protection of human rights in Australia. Discuss. Use
examples to support your answer. (1/2 page).
11. Discuss the arguments for and against a Charter of Rights for Australia.
12. Distinguish between a legislative bill of rights and a constitutional (entrenched)
bill of rights.
13. Describe two strengths and two weaknesses of a legislative bill of rights.