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Voices of Australia: Resource sheet 5 -

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Voices of Australia - Resource sheet 5

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Protection of human rights in Australia

Key words

Federal system : a political system in which governmental power is shared
between a central or federal government having power over the whole country, and
regional governments having power over their respective regions. The Australian federal
system consists of the division of powers between the Commonwealth parliament and the
State parliaments, as set out in the Commonwealth Constitution.

Federal clause : a multilateral treaty clause allowing a federal state to
ratify the treaty while reserving the right to determine the geographic extent of the
treaty's implementation within its territory. (For example; the federal government of
Australia has the power to conclude international treaties though it is the state and
territory governments that need to implement and monitor adherence to treaty
provisions).

Common law : the unwritten law derived from the traditional law of England
as developed by judicial precedence (cases before), interpretation, expansion and
modification.

Jurisdiction : the territory over which a state (regional area) has to
legislate and enforce its laws. (For example; Australia has nine jurisdictions for
legal proceedings).

Key questions

  • Who protects the rights of people in Australia?
  • What international treaties and conventions has Australia ratified?
  • Which human rights treaties has Australia incorporated into domestic law?
  • Are there any differences between state and federal laws?

The Commonwealth Government has the responsibility for ensuring Australia's
observance 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) (RDA)

Convention on the Elimination of All Forms of Discrimination Against
Women

Sex Discrimination Act 1984 (Cth) (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.

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.

Racial discrimination and the federal law

The Racial Discrimination Act 1975 (Cth) (RDA) makes racial discrimination
unlawful in Australia. It aims to ensure that we can all enjoy our human rights and
freedoms in full equality regardless of race, colour, descent, national or ethnic
origin, being an immigrant or being a relative or associate of someone of a particular
race or other status.

The RDA applies to everyone in Australia including businesses, schools, local
governments, state and territory government agencies and departments and Commonwealth
Government agencies and departments. No-one is entitled to discriminate on racial
grounds where that discrimination means someone's human rights are affected.

The RDA can override racially discriminatory state or territory legislation, making
it ineffective. This is because section 109 of the Australian constitution allows for
federal law to override state law in some cases.

Commonwealth legislation enacted prior to 31 October 1975 (when the RDA came into
existence) may be overridden by the RDA. However, the RDA may not override Commonwealth
legislation enacted after 31 October 1975 which is racially discriminatory, depending
on the particular wording of the legislation.

The Racial Hatred Act 1995 (Cth) amended the RDA by making racially
motivated offensive behaviour unlawful. It allows people to make a complaint to the
Australian Human Rights Commission about offensive, insulting, humiliating or
intimidating behaviour based on race, colour, or national or ethnic origin.

The Australian Human Rights Commission

The Australian Human Rights Commission is an independent statutory organisation that
works to protect and promote the human rights of all people in Australia. We were
established by the Australian Government in 1986.

Our vision is to work towards an Australian society where human rights are
enjoyed by everyone, everywhere, every day.

Our work covers four key areas:

  • providing education and raising public awareness about human rights
  • handling complaints of discrimination and breaches of human rights
  • researching human rights issues and contributing to policy developments
  • legal advocacy on human rights issues.

The Commission has statutory responsibilities under the
following federal laws:

  • Age Discrimination Act 2004
  • Disability Discrimination Act 1992
  • Australian Human Rights Commission Act 1986
  • Sex Discrimination Act 1984
  • Racial Discrimination Act 1975

Complaints service

No one has to put up with discrimination, harassment or bullying.

There are laws to protect you from discrimination in areas of public life such as:
employment, education, sport and the provision of goods services and facilities.

These laws apply to everyone in Australia regardless of where they live.

If you think you have been discriminated against, you can lodge a complaint with us.
It doesn't cost anything to make a complaint and we aim to deal with it quickly and
with a minimum of fuss.

If you are unsure if what you have experienced could be discrimination, you can call
us to talk about it or email us and we will let you know if we can help you, or refer
you to someone who can.

We will handle your complaint by talking to the people involved and try to resolve
the complaint through a process called 'conciliation'.

Outcomes of conciliation will vary depending on the complaint, but they may include
an apology, compensation, the introduction of anti-discrimination training or practical
changes to facilities and services.

To find out more read our complaints information online at: www.humanrights.gov.au/complaints_information/

This information has also been translated into a range of different languages
available at: www.humanrights.gov.au/about/languages/

For more information or to discuss a complaint contact our Complaints Infoline
at:

Phone: 1300 656 419 (local call) or 02 9284 9888
Complaints email: complaintsinfo@humanrights.gov.au
TTY: 1800 620 241 (toll free)
Fax: 02 9284 9611
Free Telephone Interpreter Service: 13 14 50