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WHAT IS THE LAW?

 

UNITED NATIONS CHARTER

According to Article 1 of the United Nations Charter of 1945, one of the UN’s key purposes is “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” Under Articles 55 and 56 of the UN Charter, its member States undertake to take joint and separate action, in cooperation with the UN, to promote universal respect for human rights.

 

INTERNATIONAL BILL OF RIGHTS

Universal Declaration of Human Rights (UDHR)

The UN adopted the UDHR in 1948. It sets out the human rights and fundamental freedoms that all people are entitled to. The UDHR is not itself a treaty but it is the key international measure for human rights standards.

 

International Covenant on Civil and Political Rights (ICCPR)

This treaty was adopted by the UN in 1966 and came into force in 1976. The ICCPR aims to protect people’s civil and political rights. The ICCPR came into force for Australia on 13 August 1980.

 

International Covenant on Economic, Social and Cultural Rights (ICESCR)

The ICESCR was adopted by the UN in 1966 and aims to protect economic social and cultural rights. The ICESCR came into force for Australia on 10 December 1975.

 

These three documents make up The International Bill of Rights

 

 

Optional Protocols to the International Covenant on Civil and Political Rights

There are two Optional Protocols that supplement the ICCPR. If a country agrees to be bound by the First Optional Protocol (adopted in 1966), then individuals may submit complaints to the UN (specifically, the UN Human Rights Committee) about alleged breaches of their ICCPR rights by that country. The First Optional Protocol came into force for Australia on 25 September 1991.

 

The Second Optional Protocol (adopted in 1989) aims to eradicate the death penalty. The Second Optional Protocol came into force for Australia on 2 October 1990.

 

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

The Optional Protocol to the ICESCR allows the Committee on Economic, Social and Cultural Rights to consider complaints from individuals about breaches of their rights under the ICESCR. Australia is not a party to this Protocol.

                                     

OTHER GLOBAL HUMAN RIGHTS TREATIES

Convention on the Elimination of Racial Discrimination (CERD) 1965

The CERD provides protection against discrimination on the basis of race, colour, descent, national or ethnic origin. It came into force for Australia on 30 September 1975.

 

Convention to Eliminate All Forms of Discrimination against Women (CEDAW) 1979

The CEDAW recognises the equality of men and women and requires countries to combat discrimination against women. It came into force for Australia on 28 July 1983.

 

Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984

The CAT protects people from torture and other cruel, inhuman or degrading treatment or punishment. It came into force for Australia on 8 August 1989.

 

Convention on the Rights of the Child (CROC) 1989

The CROC recognises that all people under 18 deserve special protections and hold special rights. It came into force for Australia on 17 December 1990.

 

Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (CMW) 1990

The Migrant Workers’ Convention protects the rights of migrant workers and their families. Australia has not ratified the Migrant Workers’ Convention.

 

Convention for the Protection of All Persons from Enforced Disappearances (CED) 2006

The CED protects people from “enforced disappearances”. “Enforced disappearances” occur when the government arrests, detains or abducts a person, but refuses to acknowledge that they have done so. Australia has not ratified the CED.

 

Convention on the Rights of Persons with Disabilities (CRPD) 2006

The CRPD recognises the inherent dignity of people with disabilities and their right to make decisions for themselves and become active members of society. It came into force for Australia on 17 July 2008.

 

REGIONAL HUMAN RIGHTS TREATIES

European Convention on Human Rights (ECHR) 1951

The ECHR entered into force on 3 September 1953. All members of the Council of Europe are party to the ECHR.

 

American Convention of Human Rights (ACHR) 1969

The ACHR is open to Member States of the Organisation of American States. The ACHR was entered into force on 18 July 1978.

 

African Charter of Human and People’s Rights (AfCHPR) 1981

The AfCHPR entered into force on 21 October 1986. It protects not only the rights of the individual, but also the rights of a people as a collective whole. It is open to all State members of the African Union.

 

Arab Charter on Human Rights (see it here) 2004

The Arab Charter on Human Rights entered into force on 15 March 2008. It is open to members of the Arab League.  

 

In the Asia-Pacific region, there is no regional treaty. Though it has a much lower status than a treaty, the ASEAN nations adopted their own human rights declaration in 2012.

 

AUSTRALIAN LAWS

While there is no national human rights legislation, such legislation does exist in Victoria and the Australian Capital Territory.

See further:

The Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic)

See also the Victorian Equal Opportunity and Human Rights Commission website and factsheet about the Charter

The Human Rights Act 2004 (ACT)

See also the ACT Human Rights Commission website, which includes a list of

 

ENFORCEMENT OF HUMAN RIGHTS

 

Even though all people have human rights and they are globally recognised, human rights violations unfortunately occur. This does not mean that human rights law does not exist. It means that human rights law is being violated.

There are many ways that human rights are nevertheless enforced, at both the international and level levels, including via:

-          international political bodies such as the Human Rights Council

-          the “treaty bodies” which monitor and supervise implementation of the core UN human rights treaties, such as the UN Human Rights Committee (which supervises the implementation of the ICCPR)

-          international courts such as the International Court of Justice and the International Criminal Court

-          regional bodies such as the European Court of Human Rights

Ultimately, however, if a State perpetrates human rights abuses, it is very difficult to “punish” a country. Therefore, international law enforcement is very different to that of law enforcement inside countries.  

The most efficient way to enforce human rights is through national systems of protection. Many countries have constitutional bills of rights, such as Canada, the United StatesFranceSouth AfricaIndia and China (see Chapter II of the Chinese Constitution). Other countries have national human rights legislation, even though rights are not protected in their Constitutions, such as the United Kingdom and New Zealand.

Australia is unusual for a liberal democracy in not having comprehensive human rights legislation. Rather, rights are protected in a variety of other ways, such as through the Australian Human Rights Commission and in various laws, such as those that prohibit torture.

Certain constitutional principles also protect rights in Australia. For example, under the doctrine of separation of powers, the legislative, executive and judicial branches of government are independent to each other. This prevents any branch from holding all the power. It also ensures a check and balance act between the three branches of government, and therefore protects the rule of law and individual rights.

The High Court has also held that a limited freedom of political communication can be implied from our constitutional right to have a parliament that is directly chosen from the people. (see further, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and Australian Capital Television v Commonwealth (1992) 177 CLR 106).

 

Updated as of 7 February 2015


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