Australia lacks an instrument of the likes of a charter of rights, as a majority of its counterparts possess. But that does not lead to the assumption that there are absolutely no legislations meant for their preservation, as laws relating to the safeguarding of these rights are present in the Constitution as well as certain other acts of the National Parliament or its State equivalents.
The constitution enlists five rights directly, which are
1. The right to exercise adult franchise (S. 41)
2. Prevention of forceful procurement of property in an unfair manner (S. 51)
3. The right of being tried by a panel of adjudicators (S. 80)
4. Freedom to profess one’s beliefs and religion (S. 116)
5. Ban on practising bias on grounds of dwelling place (S. 117).
Supplementary to the aforementioned, the High Court made the statement wherein further rights for individuals were allowed to be implicit upon evaluation vocabulary and usage of the Constitution.
The common law enforced in the land down under stems from a legacy courtesy of the United Kingdom. Frequently referred to as 'judge-made' law, the Australian common law remains clearly distinguished from other fellow rights which were enacted by the Parliament (Australian Government’s Attorney-General’s Department, 2020).
Australia has remained a participant of the many key human rights accords including the ratification of Conventions on:
1. Rights of differently-abled people
2. Economic, Social and Cultural Rights
3. Young one’s rights
4. Against torture and unacceptable treatments in lieu of punishment
5. Elimination of biasness on basis of race in every existing form
6. Rights of the nature of political
7. Elimination of biasness against females
Australia became a party to the afore-stated covenants of its own free will and framed the country's international obligations as regards human rights.
The Law Council measures the island's compliance with human rights directives at the international level through these subscribed covenants, especially whilst evaluating the suitability of a proposed legal reform.
It is a wing of the Human Rights Commission founded for the purpose of reviewing the records of all UN member states. Australia had its second reviewing completed in late 2015 under this very scheme. It is significant to note that in March of the same year, the Australian Law Council submitted its suggestions to the HRC, which had its concentrations on the concepts of equal rights for all, security from groundless punishment, equal protection before law and freedoms granted under democracy (United Nations Human Rights Council, 2020).
The Australian Government 2015 report to the UNHRC suggested that the country had adopted entirely or partially, 137 of the 145 suggestions made in the first review in 2011. It also mentioned that there was implementation had been successfully completed of 10% of the suggestions while more than half of the said suggestions remain in progress (Law Council of Australia, 2020).
Some of the comments made from the Australian Government’s side included the following commitments taken up by it with regard to human rights:
1. Scheduling a plebiscite for according recognition to the native aborigines along with the Torres Strait dwellers in a subsequent session of Parliament along with a consultation process spreads nationwide.
2. Relocating and disbursement of nearly $50m for supporting the nearly 15 thousand persons in exile displaced while escaping war-torn Syria as well as Iraq.
3. Refining the treatment of people unable to implore owing to their handicap under the present criminal justice system.
4. Progressing towards removal of capital punishment
5. Protection of senior populations’ rights globally.
6. Termination of discrimination over sexual alignment & gender identity.
7. Supporting the advancement of human rights via foreign aid, such as Sustainable Development strategy as well as the inclusion of native peoples’ strategy of the Australian government.
8. Collaboration with the Australian Human Rights Commission for the cultivation of a publically reachable procedure to regulate the country’s advancement against the suggestions mentioned in the Universal Periodic Reviews.
As regards the absence of any formal human rights enactment, or amendments to its constitution pertaining to the same, the Australian government stated that it was found unnecessary in light of both, the existing protections afforded to human rights, and the requirement of accompaniment of a statement confirming compatibility with human rights of any new laws (Victorian Equal Opportunities and Human Rights Commission, 2020).
For this question, we will restrict our discussion to the following two treaties:
1. International Covenant on the Elimination of All-Forms of Racial Discrimination
2. Convention on the Rights of Differently-able individuals
Concerning the first covenant, an elucidation presented on behalf of the government of Australia places its commitments to be based on a general principle, and this argument should be kept in consideration.
The government’s so-called 'programmatic' constituent remains prima facie contradictory to the direct obligation enlisted by Art. 2 of the said covenant, in as much as, a policy to counter discrimination has to be pursued instantly.
Then again, the juxtaposition imposed by Article 2 represents a general position of a programme for the riddance of race biasness, the indispensable rudiments of which remain firmly in place in the case of Australia, thanks to the presence of targeted anti-segregation statutes at both federal and state stages.
The declaration entered by Australia concerning Article 4(a) cuts across the grain of urgency in Article 2 as well as the explicit requirements of Article 4:
"This government announces that Australia is unable to precisely consider as an offence the matters covered by Article 4(a) of the said instrument. The acts mentioned therein are sanction-able only to the limits that are granted by the existing criminal law which relates to such matters as the maintenance of order, public nuisance, battery, riot and their respective attempts. It is the desire of the Australian Government to seek parliamentary legislations specifically implementing the terms of Article 4(a), at the earliest opportunity.
Unsurprisingly, the Committee has repeatedly called for the withdrawal of this reservation and for legislation to give full effect to Article 4; the compatibility with the Convention of the Australian statement, characterized as a reservation also by the State party," has not been tested under the Article 14 procedure.
Characterization of statements as reservations effectively blocks any determination of compatibility by the Committee in light of two-thirds rule in Article 20(2); characterization as an interpretation, on the other hand, invites a comparison between the Committee's reading of the Convention and that of the State party" (Thornberry, 2018).
As regards the second covenant, it is an endorser of the central belief that the people who are most strongly impacted should have a right to take part in making decisions that impact their lives and themselves. This involvement was termed as one of the most seriously broad-minded reformations in the law governing human rights provided by the Covenant.
There is a focus on contribution that embeds within the covenant, a role of advocacy for civil establishments which stand on behalf of the disabled persons’ rights, extending as well the persons themselves (Meyers, 2016).
The preamble to the Convention begins by announcing that people with disabilities should be afforded an opportunity to be proactively partake in the entire consensus-achieving process as regards policies and programs, including the ones which openly touch their lives".
Additionally, the Convention sets forth the demand that State actors work in close consultation with as well as dynamically include persons having disabilities, going so far as to imbibe children with disabilities through organizations that represent them when they plan on coming up with and enforcing policies which concern themselves with such disabled individuals.
The CRPD continues to maintain the spotlight on the prominence of partaking during the observing processes where it says that in a civic society, the differently-able individuals along with their representative organizations shall be fully included and partake to the same extent necessitating State-parties to identify and oblige with the said requisite.
Article 34(3) motivates the said State-parties to duly consider giving a exemplification by allowing the differently-able individuals on the observing body, since it aims to invent a novel legislation governing differently-abled persons whilst endorsing modifying the current guidelines as regards the way the policies regulating and dealing with disability are made (Brennan et al. 2016).
Nearly one thousand non-governmental organizations received recognition thanks to the temporary Commission which was burdened with the responsibility for the creating the written instrument. This was seemingly an unprecedentedly high count for participants involved in a UN procedure (Degener, 2016).
The participation of the civic community spanned unto a ‘working group’ established by the temporary committee for bringing alive the foremost version of the aforesaid instrument. A most unfamiliar element of the said Group was that it had a uniform composition wherein equal representation was given to states, non-governmental organizations, organizations of differently-able individuals and National Human Rights Institutions (NHRIs) (Kanter, 2019).
The organizations of differently-able individuals were majorly led by, as well as consisted of the disabled people who were the targeted beneficial group in the first place, as also was the greater share of the language used in the Convention at the time of its ultimate adoption which reflected their inputs during the Working Group. Many state entrustments included the aforementioned target group, which also assisted in giving form to the dialogue.
Article 12 concentrates on the right to have the required legal capacity concerning differently-able individuals of a magnitude equivalent to other individuals, stretching to cover all aspects of their lives. Legal capacity is an indispensable element for recognizing a person as a human being and to identify their full personhood and the possession of the said authority helps obtain right to make decisions for oneself and to enter into contracts (O'Donnell and O'Mahony, 2017).
The Nineteenth Article adds to the right to individual sovereignty by outlining the right to autonomous living and community absorption as a human rights issue (Brennan et al. 2016).
While the Article lacks a firm description of "independent" (O'Donnell, 2017 & O'Mahony, 2017), it mirrors principles of sovereignty and free will which in turn fall in line with the main ideologies highlighted under Article 3. A few concepts in line with the term “independent” include "independence of persons", "freedom of choice" and "full and effective participation in society". Additionally, Articles, 12 & 19 remain inter-dependent (Committee on the Rights of Differently-able individuals 2014a; O'Donnell, 2017 & O'Mahony 2017).
For the persons to be able to live independently, it remains an unavoidable condition to possess the needed legal authority to make decisions and enter into agreements. As an exchange, the right to live in an unaided manner as well as per one’s own choices gives them a platform to assert their right to legal authority and personal sovereignty.
Australian Government’s Attorney-General’s Department. (2020). Retrieved from https://www.ag.gov.au/RightsAndProtections/HumanRights/Pages/Human-Rights-Protections.aspx
Brennan, C., Rice, J., Anderberg, P. & Traustadottir, R. (2016). Negotiating independence, choice and autonomy: experiences of parents who coordinate personal assistance on behalf of their adult son or daughter. Disability & Society, 31(5).
Degener, T. (2016). Disability in a Human Rights Context. Laws, 5, 35.
Kanter, A. S. (2016). The Development of Disability Rights Under International Law: From Charity to Human Rights. Routledge, New York.
Law Council of Australia. (2020). Retrieved from https://www.lawcouncil.asn.au/policy-agenda/human-rights/australias-international-human-rights-obligations
Meyers, S. (2016). NGO-Ization and Human Rights Law: The CRPD’s Civil Society Mandate. Laws: Special Edition on Disability Human Rights Law, 5(2), 21.
O'Donnell, K. J. & Meaney, M. J. (2017). Fetal origins of mental health: The developmental origins of health and disease hypothesis. The American Journal of Psychiatry 174, 319-328.
O'Mahony, S. M., Clarke, G., Dinan, T. G. & Cryan, J. F. (2017) Early-life adversity and brain development: Is the microbiome a missing piece of the puzzle? Neuroscience 342, 37-54
Thornberry, P. (2018). International convention on the elimination of all forms of racial discrimination: A commentary. Oxford University Press.
United Nations Human Rights Council. (2020). Retrieved from https://www.ohchr.org/en/hrbodies/upr/pages/basicfacts.aspx
Victorian Equal Opportunities and Human Rights Commission. (2020). Retrieved from https://www.humanrightscommission.vic.gov.au/human-rights/the-charter/australian-human-rights-framework
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