Paying for Human Rights Before the Bill Comes: Towards a More Comprehensive Domestic Implementation of International Human Rights Norms in Australia (original) (raw)

Human Rights in Australia

Alternative Law Journal, 2008

Fostering the better protection of human rights It is a difficult predicament, in the current legal and political climate, to work in a legal practice where the clients are economically and socially disadvantaged and powerless. Sometimes, being an academic who is supposed to grapple with the theoretical and philosophical concepts in academic journals comes into conflict with the realities and practicalities of working as a clinical supervising solicitor in this academic role in a disadvantaged suburb of Melbourne. Yet from this vantage point, being an academic and a practitioner, a constructive interplay occurs where theory can inform practice and vice versa. It is this interplay which can make a valuable contribution to policy debates. From such a vantage point, I consider it incumbent on universities and policy-makers to tap into the experience of the day-today dilemmas facing members of the community for whom survival, emotional and physical well-being are precarious. With exposure to this in an academic/practitioner role, the theory and real life strategies can intersect to ensure strategies are realistic and can make a difference. This article challenges the prevailing 'legalistic' approach to human rights, where court litigation tends to be considered as the means by which human rights can be enforced. The new human rights legislation in Victoria and the Australian Capital Territory (ACT)-with Western Australia and Tasmania examining the possibilities for legislation-offer broader opportunities for improving the human condition of people on Australian shores. Furthermore, since the Rudd government was elected there may be brighter prospects for human rights protection at a federal level. The new human rights mechanisms in Victoria and the ACT present opportunities beyond litigation which can be utilised to ensure a culture of human rights develops in legislatures and bureaucrats and how they administer their policies on the ground. Audits, parliamentary scrutiny processes and direct mediation with regional public authorities are all fertile ground to enforce the human rights of community members. From my position as a community lawyer in a disadvantaged community, the limitations of a legalistic approach to human rights, without its grounding in the day-today realities of community, is highly problematic. 1 From this perspective, a human rights framework that consists of only civil and political rights, or which requires clients to use the courts to complain of ill-treatment, fails to recognise the integral connection between the economic and social position of human beings and their capacity to exercise civil and political rights. 2 Such a legalistic approach to human rights can overlook other opportunities for cultural change, negotiation and dialogue, which a less adversarial environment than the legal system can allow. These opportunities will be discussed in this article. The legal system certainly has a place within the human rights framework; however, debates should also be constructed around the need to adhere to human rights and how to best foster such adherence before matters are the subject of complaint. In other words, how can a respect for human rights become entrenched in day-today dealings with each other? Evans has argued that the human rights debate needs to be widened to have a 'focus beyond the legislative process'. 3 From my perspective, the offerings of a legalistic approach to human rights are restrictive in that some clients lack the money, power, capacity, confidence and knowledge to even realise their human rights. This article will discuss modest research undertaken by Mary Anne Noone and myself, which demonstrates this point. 4 A purely legalistic approach to human rights, with the limitations imposed by rules and procedures, not only constrains the opportunities for human rights mechanisms and frameworks to be applied more broadly but means that those who will be able to take advantage of their rights are people who have the resources to navigate these rules and procedures. 5 Such a concentration on legalistic approaches can also provide ammunition for those opposed to human rights protection. 6

Human Rights in the High Court of Australia, 1976-2003: The Righting of Australian Law?

Federal Law Review, 2005

Federal Law Review Volume 33 ____________________________________________________________________________________ to think, reason and argue in terms of rights.' 4 In April 2004, Australia's Human Rights Commissioner, Dr Sev Ozdowski, sounded a familiar note in contending: 'if Australian courts were able to interpret a domestically developed code of civil rights, in time this Australian jurisprudence would contribute to better international understanding of our way of life'. 5 This article takes issue with the claim, with which these and similar comments are inflected, that Australian jurisprudence becomes (or might yet become) more 'progressive' as and when Australian law and lawyers affirmatively assimilate principles of human rights law. 6 Jurisprudence emanating from the High Court of Australia over the past three decades manifests increased willingness on the part of litigants, advocates and judges to voice or consider arguments in terms of 'human rights'. 7 Alongside this, the 1980s and 1990s have witnessed a proliferation in the scholarly analysis of Australian law in terms of human rights. 8 In this context, this _____________________________________________________________________________________ 4 John Doyle and Belinda Wells, above n 3, 74. See also George Williams, A Bill of Rights for Australia (2000) 11 ('The current lack of protection for fundamental rights in Australia, combined with ignorance of the few rights that we do possess, presents a compelling case for reform'); Hilary Charlesworth, Writing in Rights: Australia and the Protection of Human Rights (2002) 76 ('the most urgent task is to devise an Australian system to protect human rights'); Aruna Sathanapally, 'Asylum Seekers, Ordinary Australians and Human Rights' (Working Paper No. 2004/3,

The politics of human rights in Australia

2009

Australia has traditionally lacked a strong rights culture. While fairness and equality have been proudly exalted as trademarks of the national mindset, the authors of The Politics of Human Rights in Australia argue that these same characteristics may equate to a form of cultural complacency. This outlook could be the reason why Australia has fostered only a loose and incomplete safety net of rights protection, through which many have fallen. The Politics of Human Rights in Australia offers the first comprehensive account of Australia's protection of human rights from a political science perspective. Addressing the key debates surrounding human rights in Australia, the authors ask: Why are voting rights so critical in the Australian context? Should Australia adopt a bill of rights in an age of terror? What are Australia's responsibilities to global and regional refugee crises? How can reconciliation between Indigenous and non-indigenous Australians be facilitated? How well protected are women's rights and homosexual rights in Australia? Written by three respected academics at the forefront of their fields, The Politics of Human Rights in Australia offers clarity and insight into the complex issues surrounding the human rights debate in Australia.

‘Are we there yet?’: measuring human rights sensibilities

Australian Journal of Human Rights

The Australian Journal of Human Rights is a publication of the Australian Human Rights Centre. Located in the Faculty of Law at the University of New South Wales, the Australian Human Rights Centre is an independent non-government organisation dedicated to encouraging multidisciplinary teaching and research in the area of human rights at the national, regional and international levels. The Australian Journal of Human Rights is the first journal of its kind in Australia to be devoted exclusively to the publication of articles, commentary and book reviews about human rights developments in Australia and the Asia Pacific region. The aims of the Journal are: • to raise awareness of human rights issues in Australia and the Asia Pacific region by providing a forum for scholarship and discussion; and • to monitor human rights developments in this region. To achieve these aims the Journal adopts a broad-based multidisciplinary approach to human rights issues. It deals not only with the legal aspects of human rights but also with philosophical, historical, sociological, economic and political issues as they relate to human rights in Australia and the Asia Pacific region.

Beyond Australia's first Bill of Rights: engendering public debate

2005

The experience of the ACT Human Rights Act may be salutary for rights proponents in Australia in many ways other than the study of its text, its provisions, its interpretations and its developing jurisprudence. I want to investigate the broader context within which to consider the impact and importance of the ACT Human Rights Act. More specifically, I want to consider the question of engendering public support for explicit rights-protection mechanisms. This includes considering the framework within which we might be able to have a public debate, and existing sentiments and knowledge within the community which can be drawn upon. The first element of this debate is clarifying the issue of whether a bill of rights may lead to better rights protection than currently exists within Australia. To what extent is it the case that the Australian system of government as a whole is able to protect rights in the absence of an explicit bill of rights? Is the traditional argument 2 that the doctrines and practices of responsible government and a separation of powers-in which the former maintains accountability of the executive to the parliament and in turn to the people, and maintains a transparent legislative process, and the latter ensures that the judiciary can act as an independent arbiter of government action-a viable one? This is, after all, the first and primary argument that appears in the federal government's National Framework for Human Rights' National Action Plan, released in December of last year. 3 Considerable evidence exists to suggest that the current system is far from effective. Some of the reasons for this include the increasing involvement of arguably less