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Protecting the Human Rights in Australia

Info: 1912 words (8 pages) Law Essay
Published: 6th Aug 2019

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Jurisdiction(s): Australian Law

Human rights are fundamental rights which protect mankind where all humans are entitled with the rights to speak and live in both liberty and equality before the laws because of the existence of human rights. However the Founding Father was given minimum concern in human rights when constitution is being drafted. Thus, human rights are not clearly stated in Australia Constitution. Throughout the years there are many debates arguments on the need for the bill of rights to be stated in Australia constitution.

2.0 Human rights protected within Australia

2.1 Legislative protection of human rights

Australia government has put in a lot of effort in protecting human rights in Australia. Law enforced by the parliament must achieve dual function from social cohesion where members of society act lawfully and freely to conduct their affairs in a peaceful and responsible manner considering both the rights of other people to social progression where succession of society from one generation to the next to ensure that rights of the future generation are protected with the flow of the increased of living standards. [1] Besides that, certain rights and freedom has been enforced by the legislation which for example, the various antidiscrimination laws, such as the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Australia Human Right Commission Act 1986 and Disability Discrimination Act 1992.

Judicial protection of human rights

Judicial plays a significant role in protecting the human rights of Australians by interpreting the legislation and review the constitution. The judicial interprets the legislation when resolving cases to provide better protection and equality of human rights. Furthermore, the High Court has frequently affirmed the regulation that legislation must be construed to minimize the abrogation of fundamental human rights.

Human rights council of Australia

The human rights council of Australia is one of the non-governments organizations which promote understanding of human rights for all without discriminating through adherence to the international Bill of rights or other human rights instruments, internationally within Australia. The Human Rights Council has many objectives. [2]

National Disability Strategy

There our society will lose out if these minorities of Australians are unable to fully participate in their communities. Because of these barriers and discrimination which can be physical and attitudinal due to the lack of awareness of disability issues. The National Disability Strategy is a new strategy launched by the government to provide better protection for disabled people. [3]

2.5 National Plan to Reduce Violence against Women and their children

Nation Plan is proposed to reduce violence woman and their child for achieve the government’s goal in reducing violence in our communities to ensure woman and child’s rights are protected for them to live in dignity free from sexual assault and domestic violence. [4]

3.0 Evaluation on would a bill of rights make a different

A majority of the nation’s support that Australia should have a bill of rights because it can protect unpopular minorities such as Indigenous people from being abused. Moreover, existence of a bill of rights in constitution can help to protect the people to live in a dignified, peace existence and free from vilification as a bill of rights can function to check and balance or scrutinize whether the law enacted by parliament adequately protects the human rights as the bill of rights can also help parliament in making law as a reference.

Some human rights are protected by the federal, state and territory anti-discrimination legislation which make unlawful to make discrimination based on gender, origin, religion, race and disability but the protection that are given is unstable as the parliament have the power to create a new law limit to amend it and the law can reshuffled. Thus, a bill of rights in constitution can give the protection to the rights of Australian because to change or amend the constitution is very hard as achieving dual criteria which are majority popularity and majority state agree on the changing the constitution is essential.

Furthermore, advocates for bill of rights argue that the rights of Australian is not been adequately protected as laws that protect Australian is insufficient. The law enacted by the parliament can be easily abolished. Moreover, rights in the constitution have protects limited rights that covers only a very small scope. For example, section 80 guarantees trial by jury, but this only applies to the trial at the federal level. [5]

On the other hand, some of the nations opposed that Australia should have a bill of rights in constitution because parliament is already equipped to do better job if there is a charter of rights it would deprive parliament of its role to conclude on behalf of Australian by handling those power to unelected judges. Parliament as a principal of institution in the legislative arm, it was given supremacy in enforcing laws that must achieve dual function which is social cohesion and social progress. Thus, if a bill of rights is in the constitution it will diminish parliament authority by transferring decision making authority to unelected judges accountable to nobody in bares theoretical sense. As a result, a bill of rights would weaken the role of parliament directly.

Meanwhile, a proportion of people argue that if a bill of rights is imposed, it will be undemocratic as many people are concerned allowing people to take human rights claims to the courts and will transfer extra power from the democratically elected parliament to an unaccountable judiciary and a bill of rights would politicize the appointment of judges, increase the volume of litigation and would not increase the rights and protection now available to Australia citizen.

A final belief is that a national bill of rights will not protect, but will rather limit human rights protection. It is argued that defining human rights in a national document, will encourage the courts to adopt a narrow interpretation of these rights, and that it will freeze rights in the time in which they were created, making them incapable of responding to the ever-changing needs and concerns of the Australian community.

3.1 Case study

3.1.1 Teoh’s cases

Ah Hin Teoh, a Malaysian citizen, came to Australia in May 1988 and was granted a temporary entry permit. In July 1988, Teoh married Jean Lim, an Australian citizen and the de facto spouse of Teoh’s deceased brother. Mrs Teoh had four children, one from her first marriage and three from the de facto relationship. Unfortunately, In January 1991 Teoh was notified pursuant to the Migration Act 1958 that his application for resident status is rejected as he could not meet the decent character requirement for his criminal record. However, at last the majority of the justices of High Court Australia agreed with the Federal Court decision that there had been a breach of natural justice, as the Immigration department had failed to invite Teoh to make a submission on whether a deportation order should be made, contrary to the Convention on the Rights of the Child, which provided that in any administrative decision concerning a child, the child’s best interests must be a primary consideration. [6] This had showed that even though there is no bill of rights but the human rights of the Australian still been adequately protected as the justices or judges protecting the rights of human by resolve the cases by contrary to the convention on the rights of child.

3.1.2 Dudko case CCPR/C/90/D/1347/2005

Miss Dudko was convicted of several charges relating to the stealing of a helicopter that was then used to break out of a prison in NSW in 1999. When Miss Dudko’s matter came before the High Court of Australia, Miss Dudko was unrepresented as the NSW prison officials refused to bring her to the court. Miss Dudko was prohibited from representing herself by audiovisual link from prison. The NSW Director of Public Prosecutions was represented by a lawyer in the High Court. The UNHRC found that Miss Dudko’s right to equal treatment before the law was violated as it was unfair to allow the prosecution to attend the oral hearing but, at the same time, deny the appellant the right to be heard. [7]

3.1.4 Shams cases CCPR/C/90/D/1255

Mr Shams was one of eight Iranian nationals who brought this complaint to the UN Human Rights Committee. Mr Shams and the other seven complainants all arrived in Australia by boat seeking asylum and were detained in mandatory immigration detention. The UNHRC confirmed that Australia’s mandatory immigration detention regime is arbitrary and a violation, which guarantees the fundamental human right of liberty. Australia continues to disregard the Committee and to violate the rights of people detained in immigration detention for lengthy periods. The Committee found a violation because Australian courts cannot review an asylum seeker’s detention in light of fundamental human rights. The Committee found a violation because Australia refuses to compensate people who have been held for prolonged periods in mandatory immigration detention. [8]

4.0 Conclusion

According to the points that has been provided that the human rights of the Australian has been protected well as the legislative has provided measure of protection on certain rights and the law made by the parliament must achieve the dual function which is the social cohesion and social progress. Besides that, the judicial or judges has protected the human rights by interpreting the legislation when resolve a cases. Moreover, there are private non-government organisations that promote the understanding of human rights to the nation in Australia and also some national plan from government such as National Disability Strategy and Nation Plan .Even though the law of protecting the human rights is still weak and unstable but the protection on human rights has been improved and many Australian believe that the human rights of the Australia will be perfectly protected in future.

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