The Commonwealth Government has the responsibility for ensuring Australia's observace of internationally-recognised human rights.
But State governments have the responsibility to make and administer many of the laws that are relevant to human rights observance. These include laws relating to the administration of justice, land matters, health and education issues, among others. In international law, a federal system does not justify a failure to observe internationally-accepted human rights. But in practical terms, a federal system can make the task of guaranteeing that people are able to access their rights more complicated.
It is the Commonwealth Government that decides whether or not to take on obligations to observe international human rights standards. But the fact that the Commonwealth Government agrees to observe international standards does not make those standards legally enforceable within Australia. This requires specific Australian legislation. Without such legislation there is no legal way within the Australian court system to ensure that the rights in any international human rights treaty will take precedence over any state or territory legislation that is inconsistent with the treaty.
The main human rights treaties that have been specifically incorporated into domestic Australian law are:
International treaty |
Domestic legislation |
| International Convention on the Elimination of All Forms of Racial Discrimination | Racial Discrimination Act 1975 (Cth) |
| Convention on the Elimination of All Forms of Discrimination Against Women | Sex Discrimination Act 1984 (Cth) (abbreviated to SDA) |
| Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment | Crimes (Torture) Act 1988 (Cth) |
Australia has historically been an active participant in the development of international human rights standards. As new international standards have been developed, Australia has either endorsed non-binding instruments such as the Universal Declaration of Human Rights or the Declaration on the Rights of Disabled Persons, or has ratified binding legal instruments such as: the Covenants on Civil and Political, and on Economic, Social and Cultural Rights; the Conventions on Racial Discrimination, Discrimination against Women, and the Rights of the Child; and the Convention Against Torture. Australia has also ratified three of the mechanisms that give individuals the right to complain to United Nations bodies about violations of their rights.
International human rights standards have had a significant impact on Australia. A former Chief Justice of Australia's High Court said:
' ... international law is a legitimate and important influence on the development
of the common law, especially when international law declares the
existence of universal human rights.'(Brennan, 7 April 1995)
The legal protection of human rights in Australia depends on a combination of the common law and statute law. Statute law is legislation of the Commonwealth parliament.
In the common law, traditional freedoms are protected by centuries of custom and the precedents set by previous court decisions. The common law is a flexible instrument that is capable of reinterpreting rights in the light of changing circumstances. However, some rights may not be well-established in the common law. Where rights are not included in legislation, they may be more difficult to enforce. Political or economic interests may be given priority over human rights. And it is always open to governments to pass new legislation either to override the common law or to vary existing legislation that provides for human rights. Australian democracy is an important safeguard against these possibilities getting out of hand, but it cannot be assumed that voters will give priority to human rights issues when deciding who should govern.
When people in Australia think about human rights, they seem often to focus on violations that take place in other countries. Human rights are seen in terms of problems such as political dictatorship, torture, arbitrary detention or extra-judicial execution.
Sometimes violations such as these happen on a large scale overseas and there is a tendency to think that, by comparison, any human rights problems in Australia are minor. However, human rights violations of one kind or another occur in all countries, including Australia. Where they occur they undermine the dignity of fellow human beings and thus diminish the recognition of universal humanity.
Ultimately, the extent to which human rights are protected in Australia depends on the values of the Australian people. The depth of these values is often tested, particularly when human rights issues arise. Community values are continually changing. The development and dissemination of international human rights standards help shape these values to protect human rights.
The Universal Declaration of Human Rights makes it clear that human rights violations involve not only so-called civil and political rights, but also economic, social and cultural rights. Thus, if Australian society is analysed in the light of the provisions of the Universal Declaration, we can see that there are many human rights issues that need to be addressed. This is particularly so for certain groups, some of whom are especially vulnerable: Indigenous people, asylum seekers, migrants from non-English speaking backgrounds, those living in poverty, people with a disability, and other groups.
Disagreement about the extent of human rights problems in Australia is in part a question of perspective. Those who have employment and educational opportunities and an adequate standard of living, those in positions of power and responsibility may not be able to see the problems from the point of view of those experiencing disadvantage or discrimination. They may not be able to fully appreciate the impact of such problems on affected individuals, families and communities.
In the following quote, the former Social Justice Commissioner, Mick Dodson, spoke of what human rights means in Australia for Indigenous people. He used the term 'social justice', but he might just as easily have spoken of human rights generally:
'Social Justice is what faces you in the morning. It is awakening in a house with an adequate water supply, cooking facilities and sanitation. It is the ability to nourish your children and send them to school where their education not only equips them for employment but reinforces their knowledge and appreciation of their cultural inheritance. It is the prospect of genuine employment and good health: a life of choices and opportunity. A life free from discrimination.'
Mick Dodson
Social Justice Commissioner (1993 - 1998)
While these standards are the entitlement of all Australians there is much evidence that these standards are not being fully met in Australia. Human rights issues can potentially affect anyone. Apart from issues affecting Indigenous people and migrants, women and others may experience subtle or unintentional discrimination in the workplace and elsewhere. Children can be subjected to violence in the playground or the home. No matter what a person's status is in society, they or a family member may at some stage in their lives have to go to court and they will want to ensure that their legal rights are observed. People's involvement in human rights may also involve support for those subject to human rights abuse in other countries.
Failure to meet the human rights standards is not only a moral issue: our material well-being is impaired because this failure prevents many people from reaching their potential and making their full contribution to society.
Human rights are clearly relevant to society as a whole and to many areas of human activity, but what can people to do strengthen the observance of human rights standards?
Independent organisations such as Amnesty International have nominated areas of human rights concern in Australia, particularly the policies and actions relating to Indigenous people and to Australia's treatment of asylum seekers. Australia has also been criticised by United Nations bodies on these two issues. Many complaints are made to HREOC about discrimination, whether it is racial or sex discrimination or related to disability. In the areas of economic, social and cultural rights, many are affected by disadvantage, whether through restricted access to health or education facilities, housing, work opportunities or other basic needs.
Australia has a national Human Rights and Equal Opportunity Commission (HREOC) and each state and territory has Equal Opportunity or Anti-Discrimination Commissions. Among its functions, HREOC has a responsibility to investigate and conciliate complaints about discrimination in areas covered by the Age Discrimination Act 2004; the Disability Discrimination Act 1992; the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984. If a complaint is made under this legislation, HREOC will investigate and attempt to conciliate the complaint with the people involved. If the complaint cannot be conciliated, the complainant has the option of going to the Federal Court or the Federal Magistrates Court for a hearing of the matter. The Court or the Magistrates service can make enforceable orders if unlawful discrimination is found.
Under the Human Rights and Equal Opportunity Commission Act 1986, the same conciliation processes apply, but the complainants in these matters do not have the option of going to the Federal Court or Federal Magistrates Court. Rather, if the matter cannot be conciliated, HREOC will present a report on the matter to the Attorney-General, who is required to table the report in the Parliament.
HREOC also has responsibilities to promote public awareness through education and to advise governments on the compliance of legislation with international standards and on policy and legislative development relating to human rights in Australia.
In seeking to address the problems of people whose rights are under threat, they and others who wish to promote human rights in Australia can take a variety of actions and access a number of useful institutions. These include participation in public debate and the political process, becoming involved in the work of non-governmental organisations devoted to human rights advocacy, taking issues to court and making complaints to national human rights institutions, such as HREOC, or even to the United Nations. People often feel disempowered when trying to assert their rights, particularly if they are individuals up against a large organisation, such as the government or a big company. It can be equally challenging to face up to abuses if you know the perpetrators personally, such as within the family, or in a small business work environment. Certainly there can be difficulties in pursuing justice and redress for human rights violations. However, if people know what their rights are and how to access organisations that can help them, they can move forward with greater confidence.
