Why Is It Important To Be Binding In Australian Law

After looking at other example of Bills of Rights around the world, with America having theirs for 224 years, Canada having implemented theirs for 30 years and the UK for 17 years, Australia needs to consider each nation’s Bill of Rights’ respective strengths and weaknesses when considering our own Bill of Rights in order for it to best suit the current and future society. Canada adopts something of the middle ground between the strongly entrenched rights in the United State’s constitution and the United Kingdom where the British parliament remains supreme with a weak level of right entrenchment, making it perfect for the situation in Australia.

Every year, thousands of people seek refuge in Australia after being forced to flee their homes. Under the UN 1951 Refugee convention, countries are obliged to protect refugees and basic human rights must be upheld. However, Australia is violating these laws. As of August 2013, a report by the Australian Human Rights

The United Nations have implemented many treaties that have been imperative to the progression of the Australian Government. The Australian Government ratifying treaties is highly beneficial and works towards facilitating a progressive society which is ultimately favorable for all Australian citizens. Australian law tends to adhere to international law in order to prevent conflict and restore peace and security. In doing this the Australian Government demonstrates its dedication to alleviating human suffering and to protect civilians in times conflict and distress. The Australian Government Ratifying treaties is not only appealing to citizens it illustrates its concern with global issues and promotes positive change to the country. The Racial

This has come from the Australian community and international human rights monitors who have stated that “There are still areas in which the domestic legal system does not provide an effective remedy to persons whose rights under the [International Covenant on Civil and Political Rights] have been violated … [Australia] should take measures to give effect to all Covenant rights and freedoms.” There hasn’t only been a recent push for a Bill of Rights, Former Chief Justice Sir Anthony Mason wrote in 1997 that “Australia's adoption of a Bill of Rights would bring Australia in from the cold, so to speak, and make directly applicable the human rights jurisprudence which has developed internationally and elsewhere. That is an important consideration in that our isolation from that jurisprudence means that we do not have what is a vital component of other constitutional and legal systems, a component which has a significant impact on culture and thought, and is an important ingredient in the emerging world order that is reducing the effective choices open to the nation state”. Brian Galligan who is an academic expert on citizenship stated that “the old confidence in the effectiveness of parliamentary responsible government and the common law for protecting human rights has been undermined by more realistic accounts of the weakness of parliament and the increasingly residual domain of common law compared with the plethora of statutory laws.” The answer to whether Australia needs to adopt a Bill of Rights in order to protect Australian citizens is simple… yes and

Upholding human rights is essential for ensuring a fair and equitable society. In 1966, Australia and a majority of the world’s nations signed on to the International Covenant on Civil and Political Rights (ICCPR). After the atrocities committed in World War II this seemed like a positive step for ensuring acknowledgement and respect for the rights and freedoms of all people. However, the means of enforcing human rights is not a straightforward process. In response to ratifying the ICCPR, Australia set up the Australian Human Rights Commission. However, after a number of failed attempts, it has not followed through with implementing a

Australia pride itself on its strong human rights record and its standing as a good global citizen. However deeper analysis and according to recent situation that how boat people are being treated shows that Australia has failed to fulfill with its international human rights obligations in a number of areas. This is making the things complicating and has tendency towards receptionist and relativist arguments as regard as these international obligations. Especially, much of the focus in Australia and the country’s

Another major aspect this limb deals with is that of Australia’s relationship with the United Nations and other major international organisations .

Teoh case is a notable case between Minister of State for Immigration and Ethnic Affairs and Ah Hin Teoh, which shows the position of Australia when ratified an international convention. It concerns on administrative decision which was made contrary to the Convention on the Rights of the Child (CRC) ratified by Australia. In this case, Teoh alleged that the Minister delegate had disregard the provisions of CRC, particularly Article 3.1. of CRC, when refused his application for grant permanent status and consequently issued deportation decision to him. Finally, the High Court of Australia (by majority) decided that the two administrative decisions be set aside.

The inherent malleability of section 51(xxvi) of the Constitution, also known as the ‘race power’, suggests the continuing historical and institutional racism against Aboriginal and Torres Strait Islanders. To overcome discriminatory laws to be passed against Indigenous Australians and to allow the advancement of their situation, it is necessary to amend the race power. This article will propose the amendment of s 51(xxvi) to only allow beneficial laws to be passed with regards to Indigenous Australians, the replacement of s 51(xxvi) with an anti-discrimination power and the replacement of s 51(xxvi) with a new head of power with respect to Aboriginal and Torres Strait Islander people. These proposals will be analysed considering the judgements in Kartinyeri v Commonwealth and the recommendations made by the Referendum Council.

Australia has ratified some international human right treaties. These include the rights for women, children, and the disabled and other freedoms that should be granted under a democratic society . Furthermore, one of the ratified treaties contain freedom from torture as stated

Ratifying the Convention meant Australia recognized the disadvantage experienced by disabled individuals and made a commitment to improve their lives, ensuring they were able to enjoy all human rights and freedoms (United Nations, 2006). It is a basic human right that all individuals live free from discrimination and disadvantage (Australian Human Rights Commission, n.d.). However, disabled Aboriginal and Torres Straight Islander people are denied this basic human right and continuously exposed to multiple forms of discrimination (Aboriginal Disability Network, 2012, p. 11). Discriminated against for being Aboriginal and for their disability (Aboriginal Disability Network, 2012, p. 11). By ratifying the Convention Australia committed to creating greater opportunities for disabled individuals to partake in all aspects of political and social life (United Nations, 2006).

In addition to National and State laws Australia is a founding member of the United Nations and a party to major Human Rights Treaties. The right to vote without discrimination, is set out in the International Covenant on Civic and Political Right (article 25) and the International Covenant on the Elimination of Racial Discrimination (article 5). Both these treaties bind the Australian Government. The right to vote is also set out in the Universal Declaration of Human Rights (article 21) which Australia signed in 1948. There is debate whether Australia’s current approach to deny prisoners the right to vote where they have been sentenced to imprisonment for more than three years satisfies its treaty obligations. The Australian Human Rights Commission holds this view.

In 1948 the Universal Declaration of Human Rights (UDHR) was created, the first document of universal protected rights. Australia is a party of the UDHR along with the seven international treaties; The International Covenant on Civil and Political Rights (ICCPR), The International Covenant on Economic, Social and Cultural Rights (ICESCR), The Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), The Convention on the Rights of the Child (CRC), The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and The Convention on the Rights of Persons with Disabilities (CRPD). These laws help decide which rights are to be enforced in Australia. As Australia, has ratified these treaties the Federal government has the obligation to pass national legislation that conforms to all or some of the treaty. Although, international systems do not have policing systems meaning these rights do not automatically become part of Domestic Law.

With regard to the broader debate on human rights in Australia, the necessary actions that are required are also no brainers. We lack the necessary unified voice as & level of knowledge on, the topic as a population however, which means we fail to lobby our Government effectively. Regardless, the Government has proven time & again that they are not open to the creation of a Bill of Rights, or any legislative instrument that might reflect more of what we as Australians see to be basic human rights for all who live, visit, and wish to live

Six years after federation, Sir Isaac Isaacs then Attorney-General advised the Prime Minister on the aforesaid section with the observation that 'an express legislative power as to "treaties" would probably have enabled the Parliament to provide for the making of treaties by the Commonwealth without being expressly sanctioned by the Imperial Parliament of the Crown. At that time the Imperial Government could conclude treaties for the whole Empire. Nevertheless, he concluded that despite the removal of the reference to 'treaties ' in section 51(xxix) of the Constitution, the external affairs power still gave the Commonwealth Parliament the power to 'make such provision as is necessary to enable the obligation to be fulfilled '. Although this was not in a judgement it was significant enough to intimate that the ‘External affairs’ power was slowly being interpreted more liberally wherefrom the powers in regards to implementing treaties was largely derived.