Human rights in Australia
Overview of the observance of human rights in Australia / From Wikipedia, the free encyclopedia
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Human rights in Australia have largely been developed by the democratically-elected Australian Parliament through laws in specific contexts (rather than a stand-alone, abstract bill of rights) and safeguarded by such institutions as the independent judiciary and the High Court, which implement 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 association, freedom of, and from, religion and freedom from discrimination are protected in Australia. The Australian colonies were among the first political entities in the world to grant universal manhood suffrage (1850s) and female suffrage (1890s). Ever since the gradual dismantling of the White Australia policy throughout the late 20th century, 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 since 1975.
As a founding member of the United Nations, Australia has 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. However, Australia is the only democratic country in the world without a national bill of rights of some kind.[1] Racism in Australia traces both historical and contemporary racist community attitudes, as well as political non-compliance and alleged governmental negligence on United Nations human rights standard[2] and incidents in Australia.
Ongoing human rights issues in Australia largely stems from the legacy of mistreatment of Indigenous Australians, who are disproportionately of disadvantaged socioeconomic standing, have shorter life spans, and make up a disproportionately high number of imprisoned persons, thus receiving disproportionately high levels of social welfare payment as well as preferential employment and tertiary educational placement in state sectors. De jure, these rights are protected by the Australian Constitution and the constitutions of the states and territories bodies created to advance the promotion and protection of Human Rights Commission, in addition to a number of federal laws that exist to protect people from discrimination and nature breaches to human rights. The usage of immigration detention facilities remains a contentious issue especially among critics and human rights groups. In 2017, the United Nations High Commissioner for Refugees (UNHCR) has cited these facilities as a "damning indictment of a policy meant to avoid Australia's international human rights obligations".[3]
Most human rights are not constitutionally protected at the federal level. However, certain rights are protected via statute both federally and in the states (often called charters of rights).[4] For example, in Queensland,[5] in Victoria,[6] and in the ACT.[7] 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
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 communication among the States;
- 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;[8]
- A requirement that punishment (and, with some exceptions, imprisonment) only occur pursuant a court order, arising from the separation of powers;[9]
- A requirement that courts be independent and impartial from the executive and legislature;[10]
- The right to challenge the legality of government action for jurisdictional error, even where legislation purports to preclude judicial review.[11][12]
Statutes
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,[13] use of personal information,[14] secret recording of conversations,[15] equal treatment when buying goods and services,[16] consumer rights,[17] and many other statutes.
Common law
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.[18] 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.[19]
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
Australia has signed various international treaties and conventions regarding human rights. Australia has agreed to be bound by the following treaties:
- Universal Declaration on Human Rights
- International Covenant on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Rights
- 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
- 1926 Slavery Convention
- Supplementary Convention on the Abolition of Slavery
- Convention on the Rights of Persons with Disabilities[20]
Although Australia is a signatory to these, the rights given in the treaties are only applicable in Australia if domestic legislation is established.[20] For example, the Racial Discrimination Act 1975 (Cth),[21] implements the Convention on the Elimination of All Forms of Racial Discrimination, and the Sex Discrimination Act 1984 (Cth),[22] provides some of the rights outlined in the Convention on the Elimination of All Forms of Discrimination Against Women.[20]
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)).[20][23]
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),[24] 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.[25][26]
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;[27] human rights may be violated in some circumstances or reasons like national emergency or security;[28] human rights are protected in various States (ACT and Victoria) through legislation. However, it cannot be implemented nor enforceable at the Federal level.[29]
Freedom of expression
Under the Australian Constitution, there is an implied freedom of political communication on government and political matters.[8]
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."[30]
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".[31][32]
In 2022, Reporters Without Borders raised concerns over eroding press freedom in Australia, citing the 'ultra-concentration of media ownership' and 'growing official pressure.'[33]
Voting rights
Australians achieved voting rights decades before most other Western nations. The Australian colonies granted universal manhood 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.[34] After federation of the colonies in 1901, the Franchise Act 1902 was passed, granting the right to vote to men and women.[35] 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.[36]
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 use of proportional representation via Single Transferable Vote (STV) and majoritarian Instant Runoff Voting (IRV) in many state/territory upper and lower houses as well as the federal Senate and House of Representatives respectively. These democratic features are upheld by rankings in V-Dem Democracy indices, Democracy Index (The Economist) and Polity IV as well as processes, proceedings and conduct being regulated by federal and state Electoral Commissions.
In South Australia, Premier Don Dunstan progressively introduced the Age of Majority (Reduction) Bill in October 1970, the voting age in South Australia was lowered to 18 years old in 1973.
Women's rights
As mentioned above Women's suffrage was granted in 1902 and property rights in 1897.[37] 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.
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.
Australia has laws banning gender, sex, sexual orientation, marital status, breastfeeding and pregnancy discrimination,[38] providing for equal access to services (such as parental leave, education and child care), advancing reproductive rights (through universal healthcare and laws surrounding reproductive rights), outlawing of sexual harassment, marital rape, female genital mutilation, child marriage and legalisation of no-fault divorce.
The first Australian state to deal with marital rape was South Australia, under the progressive initiatives of Premier Don Dunstan, which in 1976 partially removed the exemption. Section 73 of the Criminal Law Consolidation Act Amendment Act 1976 (SA) read: "No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person".[39]
The role of women in the Australian military began to change in the 1970s. In 1975, which was the International Year of Women, the service chiefs established a committee to explore opportunities for increased female participation in the military. This led to reforms which allowed women to deploy on active service in support roles, pregnancy no longer being grounds for automatic termination of employment and changes to leave provisions.
Despite being integrated into the military, there were still restrictions on female service. The ADF was granted an exemption from the Sexual Discrimination Act when it was introduced in 1984 so that it could maintain gender-based restrictions against women serving in combat or combat-related positions, which limited women to 40 percent of positions in the ADF. As a result of personnel shortages in the late 1980s the restriction against women in combat-related positions was dropped in 1990, and women were for the first time allowed to serve in warships, RAAF combat squadrons and many positions in the Army. Women were banned from positions involving physical combat, however, and were unable to serve in infantry, armoured, artillery and engineering units in the Army and clearance diving and ground defence positions in the RAN and RAAF respectively.
On 27 September 2011, Defence Minister Stephen Smith announced that women will be allowed to serve in frontline combat roles by 2016. Women became able to apply for all positions other than special forces roles in the Army on 1 January 2013; it is planned that this remaining restriction will be removed in 2014 once the physical standards required for service in these units are determined. Women will be directly recruited into all frontline combat positions from late 2016.
Capital punishment
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.
In South Australia, under the premiership of then-Premier Don Dunstan, the Criminal Law Consolidation Act 1935 (SA) was modified so that the death sentence was changed to life imprisonment in 1976.[40]
People with a disability
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.
The National Disability Insurance Scheme, is a healthcare program initiated by the Australian government. The bill was introduced into parliament in November 2012.[41] In July 2013 the first stage of National Disability Insurance Scheme (which was at the time called 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 commenced in July 2014.
On 15 September 2020, the Human Rights Watch released a report examining the serious risk of self-harm and death for prisoners with mental health conditions. Media reports between 2010 and 2020 found that about 60 per cent of adults, who died in prisons in Western Australia, had disabilities, including mental health conditions. Of the 60 per cent, 58 per cent died due to lack of support, suicide, or after becoming a target of violence, where half of these deaths were of Aboriginal and Torres Strait Islander prisoners.[42][43]
Child detention
The age for criminal responsibility in Australia is currently 10 years, well below the international standard of 14 years, leading the United Nations to call upon the Australian government to raise its age threshold.[44]
The state of Queensland routinely detains young minors in youth detention centers, and in September 2023, the government of Queensland suspended its Human Rights Act for the second time in the year in order to detain children as young as 10 due in police holding cells due to a lack of space in its youth detention centers.[44] The issue of child detention in Queensland disproportionately affects indigenous children, who make up nearly 63% of those in detention, despite being only 4.6% of the state's population.[44]
The lack of an upper house in Queensland's parliament has allowed the ruling party to pass laws suspending the state's human rights legislation without adequate scrutiny.[44] The suspension in September coincided with federal campaigning for an Indigenous rights referendum, leading to accusations of hypocrisy.[44]