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ontemp rary Perspectives

on uman ights Law in


ustralia
PAULA GERBER
LLB (OUT), M Sc (Distinction) (King's College, London), LLM (Monash), PhD (Me/b)

Admitted as

Solicitor, Queensland, NSW and Victoria, Solicitor England


and Wales, Attorney, California
Deputy Director, Castan Centre for Human Rights Law Associate
Professor, Faculty of Law, Monash University
&

and

MELISSA CASTAN
BAILLB (Hans) (Monash), LLM (Me/b), PostGradDipEd (Monash)

Admitted as a Barrister and Solicitor, Victoria and the High Court of


Australia
Deputy Director, Castan Centre for Human Rights Law Faculty of Law,
Monash University

LAWBOOK CO.

2013

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Gerber, Paula
Contemporary perspectives on human rights law in Australia/
Paula Gerber; Melissa Castan general editors.
Includes index.
ISBN 978 0 455 22997 3 (pbk.)
Human rights-Australia Civil rights-Australia Constitutional
law-Australia
Gerber, Paula.
Castan, Melissa.
323.0994
2013 Thomson Reuters (Professional) Australia Limited
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Melissa Castan and Paula Gerber

INTRODUCTION
Australia has just come through a period of reflection regarding
the value of human rights. After extensive consultation, the 2009 Human
Rights Consultation Report concluded that human rights are important to
Australians. In particular, it was recorded that:
Most of the people who attended the community roundtables and presented
written submissions to the Committee wanted to see greater protection and
promotion of human rights and responsibilities. Only a minority believed our
current protections are adequate. 1

However, the Australian Government rejected the core recommendation of


the Human Rights Consultation Committee that Australia enact a Bill of
Rights, and instead chose the softer option of developing a national human
rights framework. This was a controversial course of action and has left the
Government open to criticism regarding lack of accountability when it
comes to human rights. In light of these developments, the Australian legal
and political system faces a new era of engagement with human rights.
This book aims to contribute to this dialogue by drawing together leading
and emerging experts to reflect and analyse contemporary issues relating to
human rights law. Each chapter provides scholarly analysis of a specific
contemporary human rights issue and provides insight into the complexity
and the constantly evolving features of human rights protection.
Each author was invited to address a contemporary issue within their area
of expertise and provide both the macro and micro perspectives. The
human rights issues facing modern Australian society are complex and
diverse, and it is impossible to address them all in a single book. Therefore
we have assembled a collection that represents a cross-section of legal
issues, and provides insight into diverse range of aspects of human rights
that impact upon and confront our society on a daily basis.
1 Human Rights Consultation Committee, National Human Rights Consultation Report
(September 2009) (National Consultation Report) 15.

Contemporary Perspectives on Human Rights Law in Australia

This chapter provides an overview of the main themes within the book and
in so doing identifies some of the human rights issues confronting
Australia in the 21st Century.

THE LANDSCAPE
The opening chapters establish the Australian legal landscape in
which the protection and enforcement of human rights takes place. They
examine the international and domestic instruments that set out human
rights standards, and consider the way the executive, legislative and
judicial arms of government address these standards.
Phil Lynch provides an insightful account of Australia's "Human Rights
Framework", the Federal Government's response to the wide-raging
national human rights consultative inquiry, referred to above. The National
Human Rights Consultation Committee released it final report in late 2009,
with five key findings and a series of recommendations. 2 The most
significant recommendation was that Australia should have comprehensive,
enforceable human rights legislation, modelled on the United Kingdom's
Human Rights Act 1998 (which would be similar to the Victorian Charter of
Human Rights and Responsibilities Act 2006, and the Australian Capital
Territory's Human Rights Act 2004). This model of rights protection should
promote a dialogue about human rights between the three arms of
government and, of course, include the Australian community. Lynch
characterises the National Human Rights Consultation Report as producing a:
reasonably comprehensive and complementary range of legislative,
administrative, educative and practical measures which, if accepted and
implemented, would have made a substantial contribution to the promotion,
protection and realisation of human rights in Australia. 3

However, the Federal Government chose not to follow the Consultation


Committee's recommendation to enact human rights legislation, and
instead adopted a Human Rights Framework. The Framework embraces a
series of pragmatic commitments regarding human rights education,
engagement and protection, but falls short of providing statutory protection
of human rights.
Lynch evaluates key aspects of the Framework, focussing particular
attention on the new measures for parliamentary scrutiny and the impact
of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), as well as the
role of the Joint Parliamentary Committee on Human Rights, and the new
requirement for Statements of Compatibility. He also examines the plans
for harmonisation and consolidation of Commonwealth anti-discrimination
laws and points to the need for a comprehensive Equality Act. Finally,
Lynch considers the development of the National Human Rights Action
Plan, and the imperative of addressing the most pressing Australian
2 National Consultation Report.

3 See Chapter 2 by Phil Lynch at [2.40].

1 Human Rights Landscape in Australia

human rights issues, as identified in domestic and international reviews of


Australia's human rights efforts. The absence of a federal legislative human
rights charter does not mean that human rights have no legal protection in
Australia, as subsequent chapters in this collection demonstrate.
Julie Debeljak starts her chapter by noting that the National Human Rights
Consultation Committee was critical of Australia's piecemeal approach to
the protection of human rights: "[t]he patchwork is fragmented and
incomplete, and its inadequacies are felt most keenly by the marginalised
and the vulnerable."4 She builds on Lynch's analysis of human rights
protections in Australia by reviewing the current "patchwork" of human
protections, highlighting the weaknesses that exist in the constitutional and
statutory guarantees, and the problem of reliance on fundamental
principles of parliamentary sovereignty and responsible government.
Debeljak considers alternative models for a federal bill of rights, and
explores the various models of comprehensive human rights protection
available, focussing on how the arms of government influence human
rights protection under each model, and addressing the concern to preserve
parliamentary sovereignty.
Debeljak notes that the representative arms of government- the executive
and the parliament - currently have a monopoly on regulating the
protection of human rights in Australia. In her opinion, that monopoly
should be expanded to include the views of others, specifically the
judiciary. A greater role for the judiciary would "counterbalance
majoritarian-driven decision-making, with decision-making focused on the
rights and dignity of the individual." 5
Castan turns the focus from parliament to the High Court of Australia,
examining the treatment and protection of human rights issues in 10 key
decisions made in the last decade. She evaluates the opportunity for the
further extension of human rights protections through the judicial review
process. The cases reviewed include those relating to rights of due process,
rights derived from the constitutional requirement of political participation,
and rights derived from interpretive principles, particularly the principle of
legality. Castan points out that the High Court rarely frames its responses
in terms of protection of "human rights", "individual guarantees" or even
"rights" in general. Instead, the key rights cases of the last decade have
been framed as matters of constitutional structural demands or a
combination of statutory interpretation and fundamental common law
principles. One is left wondering how this might change if Debeljak's
preference for an increased role for the judiciary in protecting human rights
in Australia was adopted.
Australia's engagement with the United Nations, as the key source of
international human rights law, forms the focus of Kate Eastman's chapter.
4 National Consultation Report, 127.

5 See Chapter 3 by Julie Debeljak at [3.10].

Contemporary Perspectives on Human Rights Law in Australia

Australia's early involvement with the UN, both in terms of its formation
and the drafting of the Universal Declaration of Human Rights (UDHR) are
briefly considered. Australia's contemporary engagement with the UN's
human rights agenda is addressed, along with its responses to the work of
the UN treaty committees, particularly the Human Rights Committee,
being the treaty body charged with monitoring States' Parties compliance
with the International Covenant on Civil and Political Rights (ICCPR). Some
specific complaints and communications regarding Australia are
highlighted, before turning to Australia's appearance before the Human
Rights Council as part of the Universal Periodic Review process. Eastman
concludes that Australia's engagement with the UN on human rights issues
shows a wide gap between its international practice and its domestic
implementation." 6 It appears that Australia falls short when it comes to
effective implementation of international human rights standards.
11

Eastman's review of Australia's engagement with the UN is complemented


by Andrew Byrnes' chapter which evaluates the protection and enjoyment
of economic, social and cultural rights (ESC rights). Byrnes provides an
excellent overview of the nature and importance of ESC rights and
examines Australia's obligations in relation to those rights. He offers
insight into the extent to which Australian governments are implementing
ESC rights through both direct and indirect means, concluding that
Australian governments across the board have shown themselves to be
reluctant to seriously embrace the adoption of ESC rights as legally
enforceable rights on the same limited basis as civil and political rights are
in some jurisdictions"?
11

Once again, we see that although the level of engagement with, and respect
for human rights may be high in Australia, when it comes to compliance
with our international obligations, the current legal framework for the
protection of ESC rights is found wanting. Byrnes identifies short-term and
long-term strategies for improving the protection of ESC rights in Australia
including, incorporating explicit general guarantees of ESC rights in a
national or State or Territory charter of rights, amending anti-discrimination
legislation to cover all the grounds of impermissible discrimination
required to be addressed by the ICESCR, and giving the Australian Human
Rights Commission, and the equivalent State and Territory bodies,
jurisdiction to consider alleged violations of the rights contained in the
ICESCR.
Together these five chapters paint a detailed picture of the contemporary
human rights law landscape in Australia and provide the backdrop for the
chapters that follow.
6 See Chapter 5 by Kate Eastman at [5.180].
7 See Chapter 6 by Andrew Byrnes at [6.160].

1 Human Rights Landscape in Australia

DISCRIMINATION AND EQUALITY


Whether Australia has adequate laws to protect against
discrimination and promote equality is subject to much debate. Chapters 7,
8 and 9 shed light on the shortcomings in our legislation by evaluating the
statutory framework, before analysing its application in two distinct areas,
namely disability and marriage equality.
Beth Gaze sets the scene by assessing the sufficiency of the current legal
protections again discrimination in Australia; analysing both the legislative
and judicial approaches. Although anti-discrimination laws have produced
some significant achievements, there is evidence of continuing systemic
discrimination which suggests that formal anti-discrimination legislation
has not succeeded in ending inequality. A variety of weaknesses in the
legislative framework have hampered the capacity of the judiciary to fully
embrace a purposive approach to interpreting the relevant Acts. Gaze
concludes that the "protection ostensibly offered by anti-discrimination law
is frequently illusory", 8 and that Australia will only achieve full equality
when it adopts a proactive approach to systemic discrimination.
Australia's ratification of the UN Convention on the Rights of Persons with
Disabilities (CRPD) in 2008, gave hope that Australians with disabilities
would see increased promotion and protection of their rights. Lee Ann
Basser considers whether this has in fact occurred. She begins with a
consideration of the impact of the CRPD on Australian law and policy and
provides an overview of the provisions of the Convention. The primary
legal mechanism for protecting the human rights of people with disabilities
is the Disability Discrimination Act 1992 (Cth) and Basser analyses the
efficacy of this legislation as a tool for implementing the CRPD in Australia.
Using education as a case study, she finds that the law fails to effectively
protect the human rights of people with disabilities in Australia. While
Australia's legislation and policies, themselves, are evaluated as rightsbased and progressive, the pervasiveness of an "old world view" is
highlighted in the approaches that judges, particularly some on the High
Court, in cases where people with disabilities have sought to enforce their
rights through the courts. Ultimately Basser concludes that after 20 years, it
is time to reform the Disability Discrimination Act 1992, so as to "move
beyond reliance on backward-looking and privatised individual complaints
to strategies which have the potential to transform 'old world views' and
address systemic and structural disadvantage". 9
One of the most contentious public debates in contemporary Australia is
the question whether same-sex couples should be allowed to marry. It is an
issue that tends to provoke highly emotive reactions on both sides of the
debate, and causes great divisions in society. It is a topic that not only
8 See Chapter 7 by Beth Gaze at [7.140].
9 See Chapter 8 by Lee Ann Basser at [8.70].

Contemporary Perspectives on Human Rights Law in Australia

generates a great deal of media attention, but also one that is increasingly
consuming the resources of parliament with no less than four marriage
equality bills currently in the Federal House of Representatives and Senate.
Legislation on this issue is also being considered in Tasmania, South
Australia and the Australian Capital Territory.
Paula Gerber and Adiva Sifris endeavour to cut through the rhetoric by
examining the issue of whether same-sex couples should be permitted to
marry through the lens of human rights. They do this by asking and
answering three questions, namely:
1. Is there a human right to marry?
2. What is marriage? and
3. Are civil unions the answer?
The authors conclude that Australia should become part of the international
trend to legalise same-sex marriage. Such a move would be consistent with
the non-discrimination provisions in the ICCPR, the right to family in the
ICESCR and the best interests of the child principle in the Convention on the
Rights of the Child. Furthermore, Gerber and Sifris note that creating a
marriage mimicking system for gays and lesbians, such as civil unions,
would entrench, rather than eliminate, discrimination.

WOMEN AND CHILDREN FIRST


The shortcomings of Australia's anti-discrimination laws are often
felt most acutely by women and children. This is because, although
legislation is generally drafted in gender neutral terms, this language can
have the effect of silencing the voice of women and privileging the male
world view. Three chapters are devoted to discussing the extent to which
women's and children's rights are protected in Australia
Hilary Clinton has observed that "Human rights are women's rights and
women's rights are human rights". 10 Henrietta Zeffert uses this concept as
a lens through which to examine the extent to which women's human
rights and substantive gender equality are promoted and protected in
contemporary Australian laws. In particular, she considers a number of
obstacles to women's full equality including domestic violence, sexual
assault and pay inequity. She points out that the few women's rights that
are protected in Australian legislation do not speak to women's experience.
Zeffert advocates for a fundamental remodeling of the labour markets'
patriarchal structure. This is consistent with the Sex Discrimination
Commissioner, Elizabeth Broderick's 2010 Gender Equality Blueprint which
identified five key areas for the achievement of gender equality, namely:
1. Balancing paid work and family and caring responsibilities;
10 Hilary Charlesworth, "What are "Women's International Human Rights"?", in Rebecca
Cook (ed), Women's Rights in International Law (University of Pennsylvania Press, 1994) 58,
61.

1 Human Rights Landscape in Australia

2. Ensuring women's lifetime economic security;


3. Promoting women in leadership;
4. Preventing violence against women and sexual harassment; and
5. Strengthening national gender equality laws, agencies and monitoringY
However, Zeffert is critical of the failure of the Gender Equality Blueprint to
link gender equality with women's human rights, which she sees as a
missed opportunity to strengthen the Blueprint's claims - and to advance
women's human rights in Australia.
Zeffert also critiques the 2012 draft National Human Rights Action Plan12
and finds that it falls shorts when it comes to the promotion of women's
rights, in particular it does not sufficiently address structural changes in
Australian workplaces and does not adequately tackle problems in
Australia's outdated anti-discrimination laws. Zeffert concludes that an
equality right alone is not enough to overcome past inequities and properly
protect and promote women's human rights in Australia. She calls for a full
range of substantive human rights to be guaranteed in a fully justiciable
Human Rights Act.
Another key issue facing many women in contemporary Australia is the
inconsistent regulation of abortion across different States and Territories.
Ronli Sifris examines the laws governing abortion in the framework of
reproductive rights, and considers a woman's right to terminate a
pregnancy. Sifris highlights the inconsistency between a woman's
reproductive rights and Australian laws which criminalise abortion. She
examines the basis for understanding restrictions on access to safe abortion
as a violation of a woman's right to life, health, privacy, equality and to be
free from torture, or cruel, inhuman or degrading treatment. Sifris
considers the impact of the stigma that attaches to criminalised conduct,
and the prospect of being investigated or even prosecuted for the crime of
obtaining an abortion. Sifris suggests that the appropriate vehicle for the
regulation of abortion is through health care legislation, rather than the
criminal law. The uncertainty and lack of clarity in the legal liability for
procuring an abortion serves to undermine respect for the law, and creates
an unenviable ambiguity as to the legal obligations of women seeking to
terminate a pregnancy, as well as her medical practitioner. Sifris reviews
the circumstances where abortion is legally permissible, and delves into the
role of the so-called "health exception", as well as the interplay between
the common law and the legislative regimes across the various Australian
jurisdictions. She concludes that the 2008 Victorian law reform regarding
11 Elizabeth Broderick, Cassandra Goldie, Elena Rosenman, Australian Human Rights
Commission, Gender Equality Blueprint (June 2010) (Gender Equality Blueprint) (4 April2012)
4, at http://www.hreoc.gov.au/ sex_discrimination.
12 Australian Government, National Human Rights Act Plan 2012 Exposure Draft, 9 December
2011 (4 April 2012) (Action Plan), at http://www.ag.gov.au.

Contemporary Perspectives on Human Rights Law in Australia

abortion, whilst an improvement in the protection of women's rights,


represents a missed opportunity to adopt the same legal rules that regulate
other medical procedures.
Children's rights in Australia are enjoying increased attention, due in part
to the UN Committee on the Rights of the Child critical evaluation of
Australia's compliance with the Convention on the Rights of the Child in
2012/ 3 and the Federal Government's announcement, also in 2012, of the
establishment of a National Children's Commissioner. 14 John Tobin
provides a comprehensive analysis of children's rights in Australia,
beginning with an overview of the Convention on the Rights of the Child
(CRC) as one of the most important international instruments, containing
normative standards which bind State Parties and inform domestic laws
and policies relating to children. He considers the conceptual foundations
and substantive effect of adopting a rights-based approach to social and
policy issues concerning children in Australia. Tobin identifies four
phenomena that have undermined the practical implementation of the CRC
in Australia, namely:
1. Incoherent conception of children's rights;
2. Lack of interdisciplinary perspectives in our legal analysis;
3. Lack of contexturalised understanding of children's rights; and
4. Absence of a systematic, integrated understanding of children's rights.
Tobin concludes that a recognition that children are rights holders is a
major shift in the contemporary responses to issues relating to children in
our society, and because of this "a significant amount of intellectual
endeavour and strategic planning remains to be done if children's rights
are to have a substantive impact on social and policy debates concerning
children in Australia" _1 5

CHALLENGING OUR ASSUMPTIONS


There are particular communities and sectors of Australian society
that face specific challenges when it comes to the protection and
enforcement of human rights. Certain sectors of our society have to
overcome historical disadvantage and/ or do not attract much public
sympathy, making them more susceptible to being marginalised.
Chapters 13 to 18 examine a number of human rights issues that fall within
this narrative.
Indigenous Australians have a long history of disadvantage that is reflected
in statistics such as a life expectancy significantly lower than that of
non-Indigenous Australians. This disparity has been attributed to:
13 See the Concluding Observations: Australia, CRC/C/ AUS/C0/4 (19 June 2012), at
http://www2.ohchr.org.
14 See Government Media Release, Gillard Government to establish National Children's
Commissioner (29 April 2012), at http://www.attorneygeneral.gov.au.
15 See Chapter 12 by John Tobin at [12.190].

1 Human Rights Landscape in Australia

a higher infant mortali~ rate, and a hi~her incidenc~ of diseases such as diabetes
mellitus, respiratory disorders, ear disease, eye disorders and some cancers,
among Aboriginal and Torres Strait Islander peoples. 16

Mick Gooda, the Aboriginal and Torres Strait Islander Social Justice
Commissioner at the Australian Human Rights Commission considers the
human rights protection for Indigenous Australians, using the UN
Declaration on the Rights of Indigenous Peoples (the Declaration) as a
framework for the discussion. His chapter begins by briefly evaluating the
human rights context for Aboriginal and Torres Strait Islander peoples. He
considers the burgeoning movement of Indigenous peoples' engagement
with the UN and the international human rights sphere, which is
increasingly promoting the rights of Indigenous peoples. Gooda notes that
the Declaration represents the current high point of the Indigenous
international human rights system, and provides authoritative leadership
and standards for the implementation of human rights norms applicable to
Indigenous peoples.
The extent to which Australia is complying with its international human
rights obligations is explored through an examination of three key human
rights issues confronting Aboriginal and Torres Strait Islander peoples in
Australia, namely:
1. Constitutional recognition of Aboriginal and Torres Strait Islander
Peoples;
2. Health equality; and
3. the Northern Territory intervention.
These three case studies "illustrate the complexity of human rights
challenges that confront Aboriginal and Torres Strait Islander peoples in
Australia" 17 and provide evidence of a legacy of disadvantage caused by
systemic discrimination, disempowerment and denial of human rights.
Gooda calls for a principled human rights framework, based on the
Declaration, to underpin Australia's responses to these and other challenges
faced by Aboriginal and Torres Strait Islander peoples.
The treatment of asylum seekers, particularly those arriving by boat, is one
of the most divisive human rights issues facing Australia today. Tania
Penovic analyses legislative and political contortions that the Federal
Government has undertaken in its efforts to address this issue. She notes
that:
rather than addressing public fear and hostility within a framework of human
rights, successive governments have characterised "boat people" as an
unwelcome incursion into Australia's territorial sovereignty. The consequent
demonisation of irregular maritime arrivals has underpinned policies which
16 Australian Bureau of Statistics, Measures of Australia's Progress, 2010, Cat No 1370.0
(Canberra, 2010), at http://www.abs.gov.au.
17 See Chapter 13 by Mick Gooda at [13.170].

10

Contemporary Perspectives on Human Rights Law in Australia

undermine the rule of law and subvert the proper understanding of Australia's
human rights obligations under international law. 18

Penovic examines the treatment of asylum seekers in the context of these


human rights guarantees undertaken by Australia at international law.
After considering the relationship between the concept of national
sovereignty and the rights of refugees, she outlines the structure of
Australia's humanitarian program and applicable international standards.
Penovic pays particularly close attention to two crucial contemporary
Australian policies:
1. Detention of asylum seekers; and
2. Offshore processing, ranging from the Pacific Strategy, Operation Relex
and the excision of Australia's offshore Islands and beyond.
She addresses the dramatic events which led to the Houston Repore 9 and
the 2012 amendments to the Migration Act 1958 (Cth). Penovic states that
the legislative and political distortions created by these various policies
have seen "successive Australian governments fail to meet their obligations
under the Refugee Convention and other core human rights instruments." 20
Australian society now recognises that there are increasing numbers of
people suffering from mental health conditions, and that those living with
severe forms of mental impairment such as schizophrenia and bipolar
disorder, in particular, are often subjected to social exclusion and
discrimination. The protection and enforcement of the human rights of
those with mental health issues is an increasingly complex area of medical,
legal and social policy. Bernadette McSherry points out that the Australian
mental health system is geared towards the emergency treatment of those
with severe mental impairments. Such a crisis-driven approach to mental
health can lead to a variety of:
restrictions on the human rights of individuals with mental illnesses such as the
right to liberty through laws enabling involuntary detention for treatment, the
right to respect for physical and mental integrity through laws enabling
involuntary treatment and the right to exercise legal capacity on an equal basis
with others through substituted decision-making schemes. 21

McSherry reviews current Australian laws that enable the detention and
treatment of individuals with mental impairments without their consent
through the lens of the UN Convention on the Rights of Persons with
Disabilities (CRPD) which Australia ratified in 2008.
Australia's mental health laws, which focus on involuntary detention and
treatment, appear to be inconsistent with key provisions of the CRPD
18 See Chapter 14 by Tania Penovic at [14.10].
19 Angus Houston, Paris Aristotle and Michael L'Estrange, Report of the Expert Panel on
Asylum Seekers (August 2012).
20 See Chapter 14 by Tania Penovic at [14.10].
21 See Chapter 15 by Bernadette McSherry at [15.10].

1 Human Rights Landscape in Australia

11

ticularly those relating to the right to liberty and security of the person.
r::sherry demonstrates how the three goals of mental health legislationcess to treatment and the protection of the individual and others because
~~ a perceived risk of harm - have justified the existence of separate mental
health laws. However, mental health laws that enable the involuntary
detention of those with mental impairments breach Art 14 of the CRPD and
are thus inconsistent with international human rights standards. She
concludes that ensuring that Australia's mental health laws properly
"protect human rights in both theory and practice is an ongoing
22
cha11enge
If

The prison environment and restraints on people's liberty raise particular


tensions in human rights discourse. When an individual has been lawfully
deprived of their liberty as punishment for breaking society's laws, the
extent to which their human rights should be protected can become
conflated with issues of criminal liability and punishment. In Chapter 16,
Bronwyn Naylor observes that "this means that the very existence of
prisoners' rights can be seen as open to debate, especially in a punitive
. . 1 env1ronmen
.
t" .23
po11tica
She considers how the residuum principle, which is now reflected both in
Australian legislation and in international human rights laws, assists courts
to balance the rights of prisoners and the broader needs of civil society.
Naylor evaluates the human rights and remedies which might be expected
to apply to prisoners and finds a disjunction between Australia's human
rights commitments at international law, and the incorporation of those
commitments within domestic law.
An examination of prisoners' efforts to assert their rights through the
courts and tribunal processes exposes the difficulty of enforcing prisoners'
rights in practice. Naylor concludes that independent monitoring processes
can offer protection and help prevent future harm at a systemic level.
Ultimately we need to establish "a culture of respect for the dignity and
humanity of individuals serving custodial sentences, a principle which is
most at risk in the coercive prison environment" .24
Australia's response to the tragedies of 9/11 in the United States and the
Bali bombings was to enact tough anti-terrorism laws. Spencer Zifcak
analyses these measures with a view to determining the extent to which
they conform to international human rights obligations in treaties to which
Australia is a party. He considers how we might understand the interaction
between counter-terrorism laws and human rights standards, using three of
the most critical and contested areas covered by counter-terrorism
legislation as case studies, namely:
22 See Chapter 15 by Bernadette McSherry at [15.120].
23 See Chapter 16 by Bronwyn Naylor at [16.10].
24 See Chapter 16 by Bronwyn Naylor at [16.150].

12

Contemporary Perspectives on Human Rights Law in Australia

1. The definition of terrorism;


2. Preventative detention and its limits; and
3. The right to a fair trial for those charged with terrorism offences.

In each of these areas, Zifcak identifies areas where Australia's laws could
be constructively modified in order to bring them more closely into line
with the requirements of international human rights law.
The Australian Government has recently established the office of the
Independent National Security Legislation Monitor, whose first report
addresses many of the issues Zifcak foreshadows in his chapter. We must
wait to see whether the Monitor will keep human rights considerations
central to his deliberations and whether the amendments canvassed by
Zifcak will find their way into Australian counter-terrorism legislation.
The relationship between environmental concerns and contemporary
human rights standards presents a challenge to both international and
domestic law. Rowena Cantley-Smith tackles this complex problem in
Chapter 18 on the human right to a healthy environment. She reviews the
human-environment relationship in Australia, including the adverse
impact of environmental degradation on human rights. An examination of
the contemporary legal approaches to protecting the environment and
human rights at international and regional levels highlight the opportunities
that exist within the Australian legal system, for the development of the
legal recognition of the relationship between human rights and a healthy
environment.
Cantley-Smith observes that Australia has various legislative and judicial
avenues which could be used to advance recognition of a human right to a
healthy environment. Her study of comparative regimes demonstrates that
the introduction of such a human right is possible when there are law
makers who are willing to support its introduction and practical application.
She concludes that recognition of the relationship between the environment
and human rights is overdue and that it is high time Australia joined the
rest of the international community in expressly recognising a human right
to a healthy environment.

DIMENSIONS OF DIFFERENCE
The scope of religious freedom is an issue that has become
increasingly controversial in contemporary Australia. Carolyn Evans
considers the main methods that are used to protect the right to religious
freedom within the Australian legal system. She critically examines how
religious freedom relates to other human rights protected in Australia
within the context of the diverse, competing, expressions of the way in
which law and society can, or should, interact with religion. She notes that
there is a:
wide range of competing visions, including ideas of Australia as a "multi-faith",
"Christian" or "secular" society. These differing ideas give an indication of the

1 Human Rights Landscape in Australia

13

ultiple visions that have underscored public debates on the priority given to
:ligious freedom and how it should be balanced against other human rights?5

Evans considers the multi-religious composition of Australian society and


notes a rise in the number of people who are not religious and who may
resent "special treatment" of religions. Muslims, in particular, seem to face
hostility when it comes to recognising religious freedom.
In order to evaluate the protection of religious freedom in the context of
other rights in Australia, Evans outlines the extent to which religious
freedom is protected in the Australian Constitution and the protections
conferred under legislative Bills of Rights in Victoria and the Australian
Capital Territory. She also explores two key issues illustrative of the
tensions involved in the balancing of rights, namely:

1. Anti-discrimination law; and

2. Religious vilification or hate speech laws.


Evans concludes that there is no simple resolution to the inherent tension
between the competing values of religious freedom and other human
rights. Any appropriate resolution of these values depends on a compromise
between the value of religious freedom, and values of equality, rights and
freedoms and pluralism.
Samina Yasmeen's analysis of human rights and Muslim identity builds on
Evan's comprehensive examination of religious freedom in Australia. She
notes the identification of Muslims in Australia as the "other" in contrast to
the broader Australian community and that such identification contributes
to the challenges facing Muslims as Australian citizens and as subjects of
human rights protections.
As a non-lawyer, Yasmeen, brings a fresh approach to the analysis of
human rights, and the typical discourse surrounding human rights law in
terms of there being "victims" and "violators". She notes that "though the
notion of human rights inherently assumes agencies of those who protect
or violate these rights and the victims whose rights are violated, the
processes involved are not unidirectional." Human rights violations can be
multidirectional, with the victims sometimes also becoming agents of
violations
Yasmeen's chapter discusses these challenges with reference to attitudes
and practices vis-a-vis Muslims in the decade since 9/11. She focuses on
sociological dimensions of exclusionary practices, "Islamaphobia" and the
human rights context for Muslims in Australia. She examines the
challenges that "emerge from, and reflect, the ideational and cultural
differences that are intersecting with the global discourse on Islam and
Muslims", and the proliferation of diverse constructions of orthodox and
progressive ideas. Yasmeen observes that "this proliferation has been
25 See Chapter 19 by Carolyn Evans at [19.10].

14

Contemporary Perspectives on Human Rights Law in Australia

accompanied by an intra-Muslim struggle to define what constitutes being


a 'good Muslim"'?6 This has contributed to violations of the human rights
of Muslims by Muslims. The situation requires a combination of structural
changes that could come about through the sustained focus on increasing
the level of understanding of diversity of Muslim ideas and practices in a
globalised world. But it also requires a greater openness within Muslim
communities to accept that adversity does not privilege silence over
practices and attitudes that violate human rights and contravene the
essence of Islamic teachings?7
It is apt that Yasmeen' s work on Muslim identity and human rights is

followed by Kevin Dunn's geographical study and analysis of Australian


responses to human rights challenges. His chapter provides some striking
insight into the views of Australians on the importance of human rights,
how well people think they are currently protected and which human
rights they consider to be the most important.
Dunn focuses on attitudes about the human rights of asylum seekers, as
well as data on experiences of racism. The analysis, perhaps unsurprisingly,
"demonstrate[s] limited awareness, non-universality and a hierarchy of
sympathy towards vulnerable groups". He concludes that while most
Australians say that human rights are important, only 20 per cent report
that human rights infringements affect them (or someone close to them),
and only about 26 per cent perceive the need for further action on human
rights. 28 Thus, he contends that human rights education must be a priority
in developing a stronger human rights system and culture in Australia.
Education on the importance of human rights is the key to a more vigorous
and resilient culture of human rights, and to increased public support for
principled policy and legislation on human rights.

THE WAY FORWARD


The preceding chapters reveal that there is significant room for
improvement in the protection of human rights in Australia. Paula Gerber
and Annie Pettit provide one possible avenue for facilitating such
improvement, namely comprehensive school-based human rights education
(HRE) for all children in Australia. They note that at the time of drafting
the UDHR, the UN considered HRE to be an important tool to prevent
human rights violations, and has worked tirelessly since then to actively
encourage states to embrace HRE as a vital element in creating a culture
where human rights are valued, protected and respected.
While there is no legislative mandate for HRE in Australia, the National
Human Rights Framework recognises the central role that HRE should play
26 See Chapter 20 by Samina Yasmeen at [20.80].
27 See Chapter 20 by Samina Yasmeen at [20.100].
28 See Chapter 21 by Kevin Dunn at [21.110].

1 Human Rights Landscape in Australia

15

. promoting and protecting human rights in Australia. To this end the


~deral Government has c~mmitted sign~ficant funding .to HRE initiative~.
However, funding alone wlll.not lead to mcreased HRE 1r: s~hools. What IS
ecessary is for human nghts to be embedded w1thm the school
~urriculum. Gerber and Pettit highlight how Australia is in the process of
shifting from disparate State and Territory curricula to a single national
curriculum and the opportunities that this presents for incorporating HRE
into a new curriculum.
At the time of writing only five of the 11 curricula subject areas had been
either finalised or were close to being finalised, and thus only these five
subjects (English, Maths, Science, History and Geography) were scrutinised
for human rights content. Gerber and Pettit's in-depth analysis of the
curriculum for these five subjects revealed that although human rights are
mentioned intermittingly, "there remains no explicit overarching
commitment to HRE in the national curriculum". 29
It appears that we are still some way off ensuring that human rights

education becomes a mainstream component of every child's education.


The Civics and Citizenship curriculum is in the early stages of development,
and perhaps we will see significant elements of human rights incorporated
into that subject which would go a long way to increasing HRE within
Australian schools.

CONCLUSION
Australia's human rights record is positive when compared to
many other countries around the world, including, for example, states
where women are considered inferior to men and are subjected to
discrimination and inequality, 30 where children are trafficked, sexually
exploited and forced to serve as child soldiers,31 where homosexuality is
still punishable by death32 and where there are significant curtailments on
free speech. 33 However, as a wealthy, developed democratic nation, there is
enormous scope for improvement in the way human rights are promoted
and protected in Australia.
Australia has already demonstrated that it can be a world leader in a
number of diverse spheres, including, most recently, fighting smoking
29 See Chapter 22 at [22.110].
30 See, for example, Olivia Ward, "Ten Worst Countries for Women", TheStar.com (8 March
2008), at http://www.thestar.com.
31 For example, a significant number of children are known to be trafficked and work as
prostitutes in Thailand, Nepal, The Philippines and Brazil, and child soldiers are still
being used in a number of countries, including, Chad, the Congo Republic, Somalia,
Uganda, Myanmar and Colombia. See http://www.child-soldiers.org.
32 See, for example, Sudan, Mauritania, Somaliland, Saudi Arabia, United Arab Emirates,
Yemen and Iran.
33 See for example, Belarus, Cuba, Equatorial Guinea, Eritrea, Iran, Libya, North Korea,
Turkmenistan and Uzbekistan at http://www.freedomhouse.org.

16

Contemporary Perspectives on Human Rights Law in Australia

through mandating the plain packaging of cigarettes, combating global


warming through the introduction of a carbon tax and developing a
vaccine against cervical cancer. It is time that we turned our attention to
becoming a world leader in the human rights arena by addressing the
numerous areas of concern identified in this book.
Such reform could be achieved by the enactment of strong, comprehensive
legislation protecting human rights. However, that is not enough. Society
as a whole must move towards a fairer culture in which everyone's human
rights are valued and respected, where every person can live their life with
dignity and worth and where the most vulnerable and marginalised
persons are valued as much as the wealthy and powerful members of our
society. Such cultural change requires a multifaceted approach that:

is transparent;

is built on principles of non-discrimination and equality;

looks at the root causes of human rights violations and addresses


those causes;

encourages the participation and empowerment of all persons;

holds government accountable; and

prioritises widespread awareness-raising and education about human


rights.
If Australia starts taking concrete steps towards embedding human rights
within our laws, cultural change will follow. This is because the political
and legislative arms of our government are well placed to provide the
leadership necessary to spearhead the cultural and societal changes that are
a prerequisite to Australia becoming a world leader in respecting,
protecting and promoting human rights.

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