Human Rights in Australia

Gearty Conor , The Hamlyn Lectures 2005: Can Human Rights Survive? (2006).

Salvaris Mike , ‘Economic and Social Rights: The Victorian Charter's Unfinished Business’ (2007) 43 Just Policy: A Journal of Australian Social Policy 30.

Evans Simon , ‘Improving Human Rights Analysis in the Legislative and Policy Process’ (2005) 29 Melbourne University Law Review 665.

Noone Mary Anne and Curran Liz , ‘Access to Justice and Human Rights: An Exploration of the Experiences of Social Security Recipients in Postcode 3081’ (Paper presented at the W G Hart Legal Workshop, London, June 2007); Buck Alexy Balmer Nigel and Pleasence Pascoe , ‘Social Exclusion and Civil Law: Experience of Civil Justice Problems among Vulnerable Groups’ (2005) 39(3) Journal of Social Policy and Administration 302, 318–20; Sandefur Rebecca , ‘The Importance of Doing Nothing: Everyday Problems and Responses of Inaction’ in Pleasence Pascoe Buck Alexy and Balmer Nigel (eds), Transforming Lives: Law and Social Process (2007) 112, 117.

An illustration is contained in a letter to the author (9 August 2006) from Civil Law Policy, Department of Justice (Victoria) in response to a query in a letter (17 July 2006) about the legal costs for seeking a Declaration of Inconsistent Interpretation with the Charter of Human Rights and Responsibilities 2006 (Vic) from the Supreme Court. The Department of Justice indicated the procedure would be the same as in any other action under the Supreme Court Act 1986 and the Supreme Court (General Civil Procedure) Rules 2005, as the Charter ‘is silent on the question of costs’.

James Allan argues that recent human rights legislation in Australia has given power to an unelected judiciary, and lawyers and judges will play a much greater role in social policy-making largely through the power to decide the scope and ambit of the enumerated rights. See Allan , ‘The Victorian Charter of Human Rights and Responsibilities: Exegesis and Criticism’ (2006) 30 Melbourne University Law Review 28. This ignores that under the Charter, Parliament is left with the ultimate decision as to what action to take after a court's Declaration of Inconsistent Interpretation. I would argue the conversation on human rights between the Executive, courts and Parliament is more democratic and transparent than current process where such issues are rarely contemplated.

An example is the prison escapee given Kentucky Fried Chicken on a rooftop. Media portrayed the case as the Human Rights Act giving luxury items to a convicted felon. In reality police were trying to capture the man, keep him calm and protect themselves. In many other cases where the British press criticised the Act, court rulings have arisen more to correct administrative ineptitude than because of the Act. Rather than criticise poor administration leading to the prisoner's release, media preferred to target the Act. A further example is the release of paedophiles due to officers failing to consider all material reports pertaining to offenders being an ongoing risk to the community. This was also blamed on the Human Rights Act. For a further discussion of tabloid treatment and absence of facts, see Sedley Stephen Sir , ‘The Rocks or the Open Sea: Where is the Human Rights Act Heading?’ (2005) 32 Journal of Law and Society, 3.

Universal Declaration of Human Rights, adopted and proclaimed by UN General Assembly resolution 217 A (III) of 10 December 1948.

Public Interest Advocacy Centre (PIAC) is an independent, non-profit law and policy organisation that identifies public interest issues and works co-operatively with other organisations to advocate for individuals and groups affected.

The Hon Ron Dyer, ‘Reflecting on what has worked in past campaigns’ (Paper presented at the PIAC 25th Anniversary Conference, Sydney, 18 October 2007). See also Williams George , ‘The Victorian Charter of Human Rights and Responsibilities: Origins and Scope’ (2006) 30 Melbourne University Law Review 880.

In 1999, a survey of 3000 respondents in three Victorian municipalities asked what human rights should be guaranteed in a Constitution. The results ranked ‘quality public health and education’ above civil and political rights. These are economic and social rights. See Salvaris, above n 2.

The difficulty is that ministers and civil servants often appear confronted by the notion including economic, social and cultural rights as this allows scrutiny of areas of Executive activity problematic for governments such as health and education. Many argue that expenditure matters are for the Executive rather than courts. If courts held government to account on expenditure, this would intrude on the separation of powers. Such arguments fail to recognise human rights as indivisible and belonging to people rather than the governments and courts and contradict notions of elected government accountability integral in democracy. Initially in Victoria, the Attorney-General was very conscious in statements of a human rights framework that recognised the economically disadvantaged. As the Charter moved through Cabinet and government departments, its focus was contained to civil and political rights. This is now reflected in the legislation, although the inclusion of economic, social and cultural rights will be the subject for ongoing review. See Charter of Human Rights and Responsibilities Act 2006 (Vic). Similarly, the Human Rights Act 2004 (ACT) was confined to civil and political rights. For a discussion of the ACT process, see Evans Carolyn , ‘Responsibility for Rights: The ACT Human Rights Act’ (2004) 13 Federal Law Review 291. For further discussion of the political machinations in Victoria see Salvaris, above n 2.

Gearty , above n 1, 21.

Gearty illustrates how a redefinition of human rights, in the context of terrorist attacks, has been used to excuse repression as necessary to prevent the destruction of human rights values, thus justifying the suspension of those very human rights through suspending processes of law: Ibid 108. For a discussion of the derogation of human rights in Australia, see Charlesworth Hilary , The Australian Reluctance About Rights' (1993) 31 Osgoode Hall Law Journal 195, 218; Golder Ben and Williams George , ‘Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism’ (2006) 8 Journal of Comparative Policy Analysis: Research and Practice 43.

Gearty , above n 1, 5.

Salvaris , above n 2.

Joint Committee on Human Rights, UK Parliament, Sixth Report (2003) [13].

Article 2(1) of the International Covenant on Economic, Social and Cultural Rights states that State parties to the Covenant must undertake steps to the maximum of their available resources to achieve progressively a full realisation of the rights in the Covenant.

Gould argues that forms of bureaucracy and administrative politics are often faceless and participation of democracy involves networks of engagement with other concrete individuals. See Gould Carol , Globalizing Democracy and Human Rights (2004) 101.

See Evans , above n 3.

Others jurisdictions have adopted similar models which have been in operation for some time. In Norway, see ‘Handbook in Human Rights Assessment: State Obligations, Awareness and Empowerment’ (2001) published by the Norwegian Agency for Development Cooperation (Norad). In New Zealand, see ‘The Guidelines on the Bill of Rights Act 1990: A Guide to Freedoms in the Bill of Rights Act for the Public Sector’ (2004), Ministry of Justice, provided to all public servants. Guidelines are being developed in Victoria.

Human Rights Act 2004 (ACT).

Kelly Elizabeth , ‘Government in the ACT: A Human Rights Dialogue’ (Speech delivered at the Assessing the First Year of the ACT Human Rights Act Conference, Canberra, 29 June 2005) cited in Evans, above n 3.

The right to social security is in Article 22 of the Universal Declaration of Human Rights, and amplified in Article 9 of the 1966 International Covenant on Economic Social and Cultural Rights (ICESCR) (operative 10 March 1976 for Australia) that provides ‘the right of everyone to social security, including social insurance’. The ICESCR norms must be recognised in appropriate ways within the domestic legal order and the appropriate means of redress, or remedies, must be available to any aggrieved individual or group.

Noone and Curran , above n 4; Curran Liz , Ensuring Justice and Enhancing Human Rights: A Report on Improving Legal Aid Service Delivery to Reach Vulnerable and Disadvantaged People, La Trobe University and Victoria Law Foundation (2007).

Sandefur , above n 4.

Ibid.

Pleasence Pascoe , ‘Mounting Problems: Further Evidence of the Social, Economic and Health Consequences of Civil Justice Problems,’ in Pascoe Pleasence, Buck Alexy and Balmer Nigel (eds), Transforming Lives: Law and Social Process (2007) and Buck Alexy Pleasence Pascoe and Balmer Nigel , Education Implications from the English and Welsh Civil and Social Justice Survey, Annexe to the PLEAS Task Force Report (2007) 32–34.

See Buck Balmer and Pleasence , above n 4, 320.

Sceats Sonya , The Human Rights Act – Changing Lives, The British Institute of Human Rights (2006) 7–14.

Ibid.

Kelly , above n 23.

Curran , above n 25.

Gearty , above n 1.

Sen Amartya , ‘Elements of a Theory of Human Rights’ (2004) 32 Philosophy and Public Affairs 315.

Ibid 323 and Gearty , above n 1.

Gearty , above n 1.

Gould argues that democracy must be interpreted as more than merely majority rule; in its fullest sense it involves widespread opportunities for participation. She argues democracy should involve recognition of the importance of difference and the individuality of members of the political community, and notes majority rule does not necessarily protect minorities. Gould argues democracy needs to be understood as multi or pluricultural in a specific sense and connected to citizenship and democratic communities. See Gould, above n 19, 93, 104, 114, 116.

Gearty , above n 1, 42–5.

Constitution of the Republic of South Africa 1996, Chapter 2. By including economic, cultural and social rights along with civil and political, the South African Bill of Rights has enlarged the legislative provisions and expectations on the State surrounding welfare, education and health within the human rights framework.

For example, class actions can be taken on the appropriateness of the social assistance scheme of the government. See de Villiers Nick , Social Policy in a Development Context: How research can be translated into policy and action (2006) The Legal Resources Centre <www.lrc.org.za/Publications/AcademicPapers.asp> at 29 May 2008.

Salvaris , above n 2.

Gearty , above n 1, 7.

Gould , above n 19, 73.

O'Neill Nick Rice Simon and Douglas Roger , Retreat from Injustice: Human Rights Law in Australia (2nd ed, 2004) 26.