Legal essay Human rights are protected under Australian law in three key ways; statute law, the constitution and common law. It could be argued that if Australia adopted a bill of rights, human rights would be more clearly defined, consistent in all states and territories and more easily understood. Human rights are protected in Australia through statute law. Statute law refers to laws made by parliament, also known as legislation. Moreover statute laws set up administrative bodies whose responsibility it is to carry out the workings of these acts.
Occasionally, judges are required to interpret legislation or make decisions about the application of statute law. These decisions will have binding impacts on human rights protection. Examples of statute laws that protect human rights in Australia include the Anti-Discrimination Act 1977 (NSW), the Sex-Discrimination Act 1984 (cth) and the Racial-Discriminations Act 1975 (cth). The HREOC is one of the administrative bodies that are extremely effective in protecting human rights. An example of this involved the case of Scarlett Finney in 1998.
In this case they found that the Hills Grammar School discriminated against Scarlett Finney on the ground of her disability by refusing her enrolment to the kindergarten class at the school in 1997 in breach of the Disability Discrimination Act 1992 (cth). The Hills Grammar School refused the enrolment of Scarlett Finney because they did not have the facilities for her and that it would be hard to get the facilities due to financial concerns. The commission determined declaring that the school pays the sum of $42,628 to Mr. and Mrs.
Finney as trustees for their daughter Scarlett Finney, on or before 28 days from the date of publication of this decision. The commission also determined that the school let Scarlett Finney into their school. The NSW Ombudsman is another administrative body that can protect human rights, it investigates and reports complaints about the conduct of government departments and statutory authorities; including police, local council, universities, TAFE, colleges and some non-government agencies that include health services, non-government schools, child care agencies and agencies which provide substitute residential care.
Some human rights in Australia are also protected by the constitution. Human rights covered by the constitution include; the right to vote (section 41, the right to just compensation for property acquired by the commonwealth (section 51), the right to trial by jury for serious offences (section 80), the right to freedom of movement (section 92) and the right to freedom of religion (section 116). The constitution is made more effective in protecting human rights because it can only be changed by the people. A referendum is required when a government puts a proposed bill to the voters, and the voters have to decide ‘yes’ or ‘no’.
However, for amendments to be made to the commonwealth constitution a double majority is needed. That is a majority of ‘yes’ voters overall, as well as a majority of ‘yes’ voters in a majority of Australia’s states and territories. Therefore, evolving concepts of human rights cannot be easily accommodated by the constitution. I think the constitution is very effective in protecting human rights because as the highest law in Australia, the Constitution specifically protects certain rights and freedoms, including trial by jury in specified circumstances, the free exercise of any religion, and just terms for acquisition of property.
The Constitution also gives jurisdiction to the High Court of Australia to hear challenges to the lawfulness of government decisions. Common law is the third manner by which human rights are protected in Australia. Common law is often called ‘judge-made’ law. This distinguishes it from laws made in Parliament. It is certainly true that many protections we can identify as human rights are protected by Australian judges applying common law principles.
Examples include the obligation of a court to refuse to allow an unfair trial to go ahead (even though the common law does not recognise a right to free legal representation in a criminal trial) and the interpretation of permissible limits on freedom of movement within Australia. Examples of common law decisions that protect human rights in Australia include the Mabo Decision in 1992and the case of Dietrich V R 1992. In the case Dietrich V the Queen; Olaf Dietrich was accused of importing 70 grams of heroin into Australia, which he had concealed within condoms that he had swallowed.
It should be noted that the Court explicitly recognised that there is no “right” to legal representation at public expense. However, the Court’s decision was premised on the common law right that an accused receive a fair trial and that legal representation is a component of a fair trial for a serious criminal offence. The reasoning of the majority is reflected in the following passage from the judgment of Mason CJ and McHugh J: It should be accepted that Australian law does not recognise that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense.
Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused. Also the case of Mabo and others V the state of Queenslandwas led by Eddie Mabo, David Passi and James Rice, all from the Meriam people (from the Murray Islands in the Torres Strait).
They commenced proceedings in the High Court in 1982, in response to the Queensland Amendment Act 1982 establishing a system of making land grants on trust for Aboriginals and Torres Strait Islanders, which the Murray Islanders refused to, accept. The Mabo decision presented many legal and political questions, including:the validity of titles issued after the commencement of the Racial Discrimination Act 1975;the permissibility of future development of land affected by native title;the procedures for the large-scale determination of issues of native title.
The limitation of common law is that the government can opt to pass new legislation (statute law) to overcome the effect of any common law decision which they do not accept; this is something that happened after the case of Mabo. A bill of rights is a formal document which enshrines human rights in a national code. It is literally a statement of protected rights usually incorporated in a countries Constitution. In Australia there have been various movements in favour of a bill of rights, however this proposal has not yet been passed by an Australian referendum.
Those in favour of a bill of rights have suggested that with the creation of a republic can come a bill of rights. Two arguments for Australia to have a bill of rights are: a bill of rights would clearly define and protect basic human rights; the constitution cannot be easily amended to protect more rights. Two arguments against Australia having a bill of rights are: Australian statute, constitutional and common law already adequately protect human rights in Australia; a bill of rights would be just as hard to amend as the constitution.
Therefore it can be seen that human rights are currently protected in three main ways by the Australian legal system. I think the most effective way of protecting human rights is through the constitution, common law and statute law. It would be argued that a national bill of rights would improve human rights protection by making the Australian people more aware on a national level what their specific human rights are.
