Human rights in Australia

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Human rights in Australia have largely been developed under Australian Parliamentary democracy through laws in specific contexts (rather than a stand-alone, abstract bill of rights) and safeguarded by such institutions as an independent judiciary and High Court which implement the Common Law, the Australian Constitution and various other laws of Australia and its states and territories. Australia also has an independent statutory human rights body, the Australian Human Rights Commission, which investigates and conciliates complaints, and more generally promotes human rights through education, discussion and reporting.

Universal voting rights and rights to freedom of speech, freedom of association, freedom of religion and freedom from discrimination are protected in Australia. The Australian colonies were among the first political entities in the world to grant male (1850s) and female suffrage (1890s). Contemporary Australia is a liberal democracy and heir to a large post-World War II multicultural program of immigration in which forms of racial discrimination have been prohibited.

As a founding member of the United Nations, Australia assisted in the drafting of the Universal Declaration of Human Rights and it is signatory to various other international treaties on the subject of human rights. Australia is the only democratic country in the world without a national bill of rights of some kind.[1]

An ongoing human rights issue in Australia is the legacy of mistreatment of indigenous Australians, who are disproportionately of disadvantaged socioeconomic and political standing, have shorter life spans, and make up a disproportionately high number of imprisoned persons.

Sources of rights[edit]

As Australia does not have a Bill of Rights to implement all international human rights, some states have implemented their own charters.[2] For example in Victoria [3] and in the ACT.[4] As such, other sources of rights exist to protect rights in Australia (the Constitution, through statutes, common law, and through implementation of international treaties).

Australian Constitution[edit]

Human rights are protected under the Australian Constitution in several ways:

  • Self-determination is protected by the creation of a system of responsible government chosen by the people in the form of the Australian Parliament;
  • Section 41 provides a right to vote;
  • Section 51(xxiii) prohibits civil conscription in relation to medical and dental services;
  • section 51(xxxi) empowers the Commonwealth to acquire property only "on just terms";
  • Section 80 provides a right to a jury trial for indictable offences;
  • Section 92 protects freedom of interstate trade, commerce and intercourse;
  • Section 116 prohibits the Commonwealth from passing laws establishing religion, imposing religious observance, or requiring a religious test for qualification for public office;
  • Section 117 prohibits discrimination on the basis of State residence.

In addition, as a result of certain structural implications and principles, the Constitution protects human rights indirectly through several means, including:

  • An implied freedom of political communication on government and political matters;[5]
  • A requirement that punishment (and, with some exceptions, imprisonment) only occur pursuant a court order, arising from the separation of powers;[6]
  • A requirement that courts be independent and impartial from the executive and legislature;[7]
  • The right to challenge the legality of government action for jurisdictional error, even where legislation purports to preclude judicial review.[8]

Statutes[edit]

Human rights are protected through various statutory enactments in a broad variety of specific contexts. For example, there are statutes which prescribe and regulate police powers,[9] use of personal information,[10] secret recording of conversations,[11] equal treatment when buying goods and services,[12] consumer rights,[13] and many other statutes.

Common law[edit]

The common law of Australia protects rights indirectly through various causes of action (such as in contract, tort, and property rights). The common law also protects human rights through principles of statutory interpretation. One example is found in Gleeson CJ's statement that it is presumed that it is not Parliament's intention to remove a fundamental human right(s) or freedom(s) unless such an intention is outlined and manifested by clear language.[14] This is known as the principle of legality which acts as an extra layer of protection for human rights against vague or ambiguous legislation. Furthermore, Former Chief Justice of New South Wales, James Spigelman, has compiled a list of a number of rights-depriving acts which the common law presumes the legislature does not intend without clear wording, including retrospectively changing rights and obligations, infringing personal liberty, interfering with freedom of movement or speech, restricting access to the courts, interfering with vested property rights, and denying procedural fairness.[15]

In addition, there are various common law principles which afford certain protections, such as legal professional privilege, and the privilege against self-incrimination.

International Human Rights Laws in Australia[edit]

Australia has signed various international treaties and conventions regarding human rights. Australia has agreed to be bound by the following treaties:

  • ICCPR
  • ICESCR
  • Convention on the Prevention and Punishment of the Crime of Genocide
  • Convention on the Political Rights of Women
  • International Convention on the Elimination of all forms of Racial Discrimination
  • Convention on the Elimination of all forms of Discrimination against Women
  • Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
  • Convention on the Rights of the Child
  • Convention on the Reduction of Statelessness
  • Convention relating to the Status of Stateless Persons
  • Convention Relating to the Status of Refugees
  • Slavery Convention of 1926
  • Supplementary Convention on Slavery
  • Convention on the Rights of Persons with Disabilities [16]

Although Australia is a signatory to these, the rights given in the treaties are only applicable in Australia if domestic legislation is established.[16] For example, the Racial Discrimination Act 1975 (Cth)[17] implements the Convention on the Elimination of All Forms of Racial Discrimination, and the Sex Discrimination Act 1984 (Cth)[18] provides some of the rights outlined in the Convention on the Elimination of All Forms of Discrimination Against Women.[16]

However, another way the rights provided in a treaty can be seen in Australian law is where provisions of a treaty are already a part of domestic legislation (for example, the Convention of the Rights of People of Disabilities can be seen as incorporated into domestic law through similar provisions in the Disability Discrimination Act 1992 (Cth)).[16][19]

Australian Human Rights Commission[edit]

The Australian Human Rights Commission (AHRC) (previously known as the Human Rights and Equal Opportunity Commission) is a national independent statutory body of the Australian government. Established under the Australian Human Rights Commission Act 1986 (Cth),[20] it has responsibility for the investigation of alleged infringements under Australia’s anti-discrimination legislation.

Matters that can be investigated by the Commission include discrimination on the grounds of age, race, colour or ethnic origin, racial vilification, sex, sexual harassment, sexual orientation, gender identity, intersex status, marital or relationship status, actual or potential pregnancy, breastfeeding or disability.[21][22]

However, the protection of human rights has several significant limitations. For instance, human rights will often trump other public goods as it enjoys a prima facie;[23] human rights may be violated in some circumstances or reasons like national emergency or security;[24][2] human rights are protected in various States (ACT and Victoria) through legislation. However, it cannot be implemented nor enforceable at the Federal level.[25]

Civil and political rights[edit]

Freedom of expression[edit]

Under the Australian Constitution, there is an implied freedom of political communication on government and political matters.[5]

Some restrictions on political expression exist in Australia, including laws on defamation, racial vilification, and contempt of Parliament.

In 2015, Tasmania's Anti Discrimination Commissioner found that the Catholic Church and the Archbishop of Hobart had a "case to answer" under Tasmanian Anti-Discrimination legislation for promoting the Catholic view of marriage. Australian Greens candidate Martine Delaney brought the matter to the Commission. The ABC reported that case has "raised concerns about freedom of speech ahead of a national debate on same-sex marriage."[26]

In 2007, Parliamentarian Lee Rhiannon of the Australian Greens referred remarks made by an Australian Catholic Cardinal opposing embryonic stem cell research to the New South Wales parliamentary privileges committee for allegedly being in "contempt of parliament". The Cardinal was cleared of the charge and described the move as a "clumsy attempt to curb religious freedom and freedom of speech".[27][28]

Voting rights[edit]

Main article: Suffrage in Australia
The New South Wales Parliament is Australia's oldest parliament. First elections were held in 1843.

Australians achieved voting rights decades before most other Western nations. The Australian colonies granted male suffrage from the 1850s and in 1895 the women of South Australia achieved the right to both vote and stand for Parliament, enabling Catherine Helen Spence to be the first to stand as a political candidate in 1897.[29] After federation of the colonies in 1901, the Franchise Act 1902 was passed, granting the right to vote to men and women.[30] However, the Act also restricted votes for 'natives' unless they were already enrolled. These restrictions were unevenly applied and were relaxed after World War II, with full rights restored by the Commonwealth Electoral Act 1962.[31]

In 1856, an innovative secret ballot was introduced in Victoria, Tasmania and South Australia, in which the government supplied voting paper containing the names of candidates and voters could select in private. This system was adopted around the world, becoming known as the "Australian Ballot". the "Australian Ballot" became well known throughout Australia.

The first woman elected to any Australian Parliament was Edith Cowan, to the West Australian Legislative Assembly in 1921. Dame Enid Lyons, in the Australian House of Representatives and Senator Dorothy Tangney became the first women in the Federal Parliament in 1943. In 1971, Senator Neville Bonner became the first Aboriginal Australian to sit in the federal Parliament. Rosemary Follett was elected Chief Minister of the Australian Capital Territory in 1989, becoming the first woman elected to lead a state or territory. In 2010, Julia Gillard became the first female Prime Minister of Australia.

South Australian suffragette Catherine Helen Spence (1825–1910).

By 2010, the people of Australia's oldest city, Sydney, had female leaders occupying every major political office above them, with Clover Moore as Lord Mayor, Kristina Keneally as Premier of New South Wales, Marie Bashir as Governor of New South Wales, Julia Gillard as Prime Minister, Quentin Bryce as Governor General of Australia and Elizabeth II as Queen of Australia.

Capital punishment[edit]

The last use of the death penalty in Australia was in Victoria in 1967. Ronald Joseph Ryan was hanged at Pentridge Prison on 3 February 1967 for the murder of a prison guard, George Hodson. However, Australian criminologist, Gordon Hawkins, director of Sydney University's Institute of Criminology, doubts that Ryan was guilty.

Capital punishment was officially abolished for federal offences by the Death Penalty Abolition Act 1973. The various states abolished capital punishment at various times, starting with Queensland in 1922 and ending with New South Wales in 1985.

Treatment of particular groups and minorities[edit]

Indigenous Australians[edit]

The current well being of indigenous Australians is an ongoing issue in Australia.

There is significant disparity in health between indigenous and non-indigenous Australians. In 2010–2012, the estimated life expectancy at birth for Aboriginal and Torres Strait Islander males was 69.1 years, and for females 73.7 years. This was 10.6 years lower than the life expectancy of non-Indigenous males, and 9.5 years lower than that of non-Indigenous females.[32] A 2006 study by the Australian Institute of Health and Welfare showed that 70% of the Aboriginal population die before the age of 65, compared with 20% of non-indigenous Australians.[citation needed] Additionally, the suicide rate among Aboriginal Australians is almost three times higher (at 4.2%) than the national average (1.5%).[citation needed]

The Aboriginal Tent Embassy set up in Canberra by activist agitating for the rights of Indigenous Australians.

The roots of the present condition can be traced to the historical treatment of Aboriginals and the dispossession of land that occurred following arrival of the British settlers in the late 1700s, where a combination of disease, loss of land (and thus food resources) and violence reduced the Aboriginal population. Later, from the 1830s, colonial governments established the now controversial offices of the Protector of Aborigines in an effort to avoid mistreatment of Indigenous peoples and conduct government policy towards them. Christian churches in Australia sought to convert Aborigines, and were often used by government to carry out welfare and assimilation policies.

The Caledon Bay crisis of 1932–4 saw one of the last incidents of frontier violence, which began when the spearing of Japanese poachers who had been molesting Yolngu women was followed by the killing of a policeman. As the crisis unfolded, national opinion swung behind the Aboriginal people involved, and the first appeal on behalf of an Indigenous Australian to the High Court of Australia was launched. Elsewhere around this time, activists like Sir Douglas Nicholls were commencing their campaigns for Aboriginal rights within the established Australian political system and the age of frontier conflict closed.

In 1962, the Menzies Government's Commonwealth Electoral Act provided that all Indigenous Australians should have the right to enroll and vote at federal elections (prior to this, indigenous people in Queensland, Western Australia and some in the Northern Territory had been excluded from voting unless they were ex-servicemen).[33] The successor Holt Government called the 1967 Referendum which removed the discriminatory clause in the Australian Constitution which excluded Aboriginal Australians from being counted in the census – the referendum was one of the few to be overwhelmingly endorsed by the Australian electorate (over 90% voted 'yes').[34]

From the 1960s, Australian writers began to re-assess European assumptions about Aboriginal Australia – with works including Geoffrey Blainey's landmark history Triumph of the Nomads (1975) and the books of historian Henry Reynolds.

Statue of Aboriginal rights campaigner Sir Doug Nicholls, Parliament Gardens, Fitzroy, Victoria

From the late 1960s a movement for Indigenous land rights developed. In the mid-1960s, one of the earliest Aboriginal graduates from the University of Sydney, Charles Perkins, helped organise freedom rides into parts of Australia to expose discrimination and inequality. In 1966, the Gurindji people of Wave Hill station (owned by the Vestey Group) commenced strike action led by Vincent Lingiari in a quest for equal pay and recognition of land rights.[35]

The Whitlam Labor and Fraser Liberal Governments instigated the Aboriginal Land Rights Act 1976, which, while limited to the Northern Territory, affirmed "inalienable" freehold title to some traditional lands.[36] In 1985, the Hawke Government returned ownership of Uluru (formerly known as Ayers Rock) to the local Pitjantjatjara Aboriginal people.

Indigenous Australians began to take up representation in Australian parliaments during the 1970s. In 1971 Neville Bonner of the Liberal Party was appointed by the Queensland Parliament to replace a retiring senator, becoming the first Aborigine in Federal Parliament. Bonner was returned as a Senator at the 1972 election and remained until 1983. Hyacinth Tungutalum of the Country Liberal Party in the Northern Territory and Eric Deeral of the National Party of Queensland, became the first Indigenous people elected to territory and state legislatures in 1974. In 1976, Sir Douglas Nicholls was appointed Governor of South Australia, becoming the first Aborigine to hold vice-regal office in Australia. Aden Ridgeway of the Australian Democrats served as a senator during the 1990s, but no indigenous person was elected to the House of Representatives, until West Australian Liberal Ken Wyatt, in August 2010.[31]

Lawyer and rights activist, Noel Pearson of Cape York.

In 1992, the High Court of Australia handed down its decision in the Mabo Case, recognising native title. That same year, Prime Minister Paul Keating said in his Redfern Park Speech that European settlers were responsible for the difficulties Australian Aboriginal communities continued to face. In 1999 Parliament passed a Motion of Reconciliation drafted by Prime Minister John Howard and Aboriginal Senator Aden Ridgeway naming mistreatment of Indigenous Australians as the most "blemished chapter in our national history".[37]

Prior to the calling of a 2007 federal election, the then Prime Minister, John Howard, revisited the idea of bringing a referendum to seek recognition of Indigenous Australians in the Constitution (his government first sought to include recognition of Aboriginal peoples in the Preamble to the Constitution in a 1999 referendum). The Labor opposition initially supported the idea; however, Kevin Rudd withdrew this support just prior to the election.[38]

In 2007, Prime Minister John Howard and Indigenous Affairs Minister Mal Brough launched the Northern Territory National Emergency Response. In response to the Little Children are Sacred Report into allegations of child abuse among indigenous communities in the Territory, the government banned alcohol in prescribed communities in the Northern Territory; quarantined a percentage of welfare payments for essential goods purchasing; despatched additional police and medical personnel to the region; and suspended the permit system for access to indigenous communities.[39] The policy was largely maintained under the Rudd and Gillard Governments.

Notable contemporary indigenous rights campaigners have included: federal politicians Aden Ridgeway and Ken Wyatt, lawyer Noel Pearson; academic Marcia Langton; and Australians of the Year Lowitja O'Donoghue (1984), Mandawuy Yunupingu (1992), Cathy Freeman (1998) and Mick Dodson (2009).[40]

Immigrants and asylum seekers[edit]

Australia is an immigrant nation with a large and longstanding multi-ethnic migration program.

Historically, from the 1890s to the 1950s the country adhered to the White Australia Policy, which effectively barred or impeded people of non-European descent from immigrating to Australia. The policy was dismantled by successive governments after World War II, and from the 1970s successive governments officially supported multiculturalism.[41]

The entrance of the former Woomera IRPC.

Australia is a signatory to the Refugee Convention and a component of the Australian immigration program is devoted to providing protection for refugees. The majority of refugees received by Australia are identified and referred by the UNHCR. The Special Humanitarian Program further offers refuge to people subject to "substantial discrimination amounting to gross violation of human rights in their home country" and who are supported by a proposer within Australia. In 2009–10 a total of 13,770 visas were granted under these categories. The annual figure remained roughly stable for the years between 2004–2010 and accepted applicants from such nations as Myanmar, Iraq, Bhutan, Afghanistan and six African countries.[42]

To varying degrees of success, recent Australian governments have sought to discourage unauthorised arrivals by people seeking refugee status in Australia by maintaining a system of mandatory detention for processing of people who arrive without a visa. In 1992, Australia adopted a policy of under which the Australian government could detain any person in the country without a valid visa. In 1994 the detention of 'unlawful non-citizens' was made mandatory.[43] During the late 1990s and early 2000s, these unauthorised arrivals, popularly referred to as "boat people", were transferred to one of the Australian immigration detention facilities on the Australian mainland, or to Manus Island or Nauru as part of the Pacific Solution. These offshore processing and mandatory detention policies have attracted criticism. In 2014, the Australian Human Rights Commission published a report, which found that many basic rights outlined in the Convention on the Rights of the Child were denied to children living in immigration detention.[44]

LGBT people[edit]

The content of laws relating to the equality of LGBT people is summarised in the following table:

Federal

Federal Same-sex marriage De facto relationships status Registered relationships status Equal age of consent Anti-discrimination legislation Adoption and foster parenting Recognition of parents on birth certificate Access to fertility (such as ART, IVF, surrogacy, AI, etc.) Right to change legal gender
 Australia No (Marriage Amendment Act 2004) Yes (family law) Yes (family law) Yes (covered by state/territory law) Yes (Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013[45]) Yes (family law) Yes (family law) Yes (family law) Yes (covered by state/territory law)

State/Territory

State/Territory Expungement scheme implemented Gay panic defense abolished De facto relationships status Registered relationships status Equal age of consent Anti-discrimination legislation Adoption and foster parenting Recognition of parents on birth certificate Access to fertility (such as ART, IVF, surrogacy, AI, etc.) Right to change legal gender
 Australian Capital Territory Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes (does not require surgery)
 New South Wales and  Norfolk Island Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
 Northern Territory No Yes Yes No Yes Yes No (under review) Yes Yes Yes
 Queensland No (bill pending) Yes (since 2017) Yes Yes Yes Yes Yes Yes Yes Yes
 South Australia Yes No (under common law only) Yes Yes (not yet in effect) Yes Yes Yes Yes Yes Yes (does not require surgery; not yet in effect)
 Tasmania No (bill pending) Yes Yes Yes Yes Yes Yes Yes Yes Yes
 Victoria Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
 Western Australia No Yes Yes No Yes Yes Yes Yes Yes/No (ART and IVF legal,
Surrogacy illegal)
Yes

Intersex people[edit]

Country/Jurisdiction Prohibition of operations on intersex children Anti-discrimination protection Access to same rights as other men and women Changing M/F identification documents Third gender or sex classifications
Australia Australia No[46][47] Yes At federal level[48] No Exemptions regarding sport and female genital mutilation[49][48] Yes Policies vary depending on jurisdiction[50] Yes Opt in at federal level. State/Territory policies vary[50][51]

Disabled persons[edit]

Discrimination against persons with disabilities in various contexts is prohibited under the Disability Discrimination Act 1992 (Cth) (DDA). The Act makes it unlawful to treat a disabled person less favorably, or to fail to make reasonable adjustments for the person, in the contexts of employment, education, publicly available premises, provision of goods and services, accommodation, clubs and associations, and other contexts. Complaints made under the DDA are made to the Australian Human Rights Commission.

The Australian Government requested the Productivity Commission to evaluate the effectiveness of the DDA, and the Commission published its findings in 2004.[citation needed] The Commission found that while there is still room for improvement, particularly in reducing discrimination in employment, overall the DDA has been reasonably effective. The Commission found that people with a disability were less likely to finish school, to have a TAFE or university qualification and to be employed. They are more likely to have a below average income, be on a pension, live in public housing and in prison. The average personal income for people with a disability is 44 per cent of the income of other Australians.

DisabilityCare Australia, formerly known as the National Disability Insurance Scheme, is a healthcare program initiated by the Australian government. The bill was introduced into parliament in November 2012.[52] In July 2013 the first stage of DisabilityCare Australia commenced in South Australia, Tasmania, the Hunter Region in New South Wales and the Barwon area of Victoria, while the Australian Capital Territory will commence in July 2014.

References[edit]

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External links[edit]