Human Rights for Everyone
Eleanor Roosevelt holding the Universal Declaration of Human Rights (1949)
As an Australian, are you aware of your human rights? Did you know the Federal Government has unlimited powers and can rescind your human rights anytime? The following article will explore issues pertaining to Australia’s protection of human rights. It will first examine the necessity for a federal human rights charter. Following this, the article will analyse the difficulties pertaining to the average citizen accessing their human rights and whether implementing a human rights charter will amend this issue.
Context
A charter of human rights is an Act passed by parliament which outlines an individual's most basic rights. [1] Although they are in statute, they can still be reformed by parliament. Another adoption is a constitutionally protected human rights charter which is reinforced by the country's constitution, making it more difficult to reform. Australia is the only liberal democracy in the world that has not implemented a human rights charter or constitutional charter of rights on a federal level. [2] Australians rely on the Commonwealth Parliament and Courts to uphold ‘our’ human rights, which have unlimited power within the purview of s 51-2 of the Australian Constitution. [3] In 2010, the Commonwealth launched the Australian Human Rights Framework, providing recommendations to increase Australia’s human rights standing in turn with international obligations. [4] Many recommendations have been taken on board, such as: increasing human rights education and acts explicitly outlining its compliance with international obligations. [5] However, the adoption of a human rights charter has not yet been implemented. [6]
From 2019 to 2022, doubts emerged about the Commonwealth’s ability to protect our most basic rights such as the freedoms of movement, association, speech, and bodily integrity through the period of lockdowns. [7] Subsequently, more discussion of a human rights charter began to emerge. [8] Australia’s current human rights approach does not promote the inalienability of basic rights, however, a system that the federal government can alter at their own discretion. [9]
Concept
Our legal system is based on the presumption that laws apply to everyone, despite an individual's knowledge of them. As human rights are complexly constructed through statute and common law, people from non-legal backgrounds and facing disadvantage are discouraged from gaining an informed understanding of their basic rights, reducing accessibility. [10] If human rights apply to everyone for being human, they should be easily accessible. [11] However, Australia’s current system does not promote this; in fact, it does the opposite. This is extremely worrying as it could lead to governmental overreach and misuse of power if citizens aren’t aware of their rights.
When considering the level of understanding of a right necessary to classify it as accessible to the broader non-legal average citizen, we must consider Australia’s growing multicultural society, many of whom are non-native English speakers, [12] and whether they would be able to clearly understand the construction and language used to protect our rights.
One may argue these individuals can receive third-party information through lawyers or other mechanisms. However, due to the delicacy of human rights, the wider majority should be able to access them directly and not rely on third parties to convey it to them. Direct access is classified as someone being able to conduct their own research through government-published methods and reaching an informed opinion. Individuals should be able to do this for human rights, owing to their importance in promoting human liberty, duties and responsibility. Relying on external sources promotes a closed human rights system where individuals facing prejudice and disadvantge are not able to gain a thorough and clear understanding of thier rights.
Age Discrimination
Australia is party to seven main human rights treaties, none of these treaties specifically protect against age discrimination. [13] The United Nations has acknowledged that older people remain ‘invisible’ in international human rights law. [14] Australia’s recognition of ageism as a human right exceeds its international obligations. Though, the manner agism is protected still deems its accessibility complicated to an individual from a non-legal background or facing a disadvantage.
Age discrimination is protected through the Age Discrimination Act (‘ADA’). [15] The first issue is accessing this Act. Where would you first look? How would you use the website? Law students spend weeks learning to navigate the State and Federal Act registers. S 4 of the ADA provides a ‘simplified outline’. [16] However, instead outlining rights in simplistic terms, it directs the reader to different sections of different legislation. It in no way assists as a ‘simplified outline’ in terms of providing readers their rights in basic English. Assuming the individual has found all the relevant provisions, they are now met with convoluted language. To further gain an informed understanding, they are then expected to apply statutory interpretation to know its limits and true interpretations. Individuals lacking legal education would further find this a near-impossible task. This long and daunting process ultimately discourages people from gaining an informed understanding of this right.
Implied Freedom of Political Communication:
Articles 19 and 20 of the International Covenant on Civil and Political Rights (‘ICCPR’) outline that freedom of speech is a human rights. [17] Australia being a signatory to the ICCPR is bound by this. [18] An individual’s natural conception would be clearly and unequivocally protected. However, this is not the case. Australia’s equivalent to freedom of speech is freedom of political communication. Which by the courts, has been construed by the implied language in s 7 and s 24 of the Australian Constitution, as it is necessary to have freedom of political communication for a functioning democracy. [19] This right has been established in Lange v Australian Broadcasting Corporation and holds its relevant Common Law test. [20] Australia being a signatory to the ICCPR it is only logical to assume that one would naturally think they are able to exercise freedom of speech. However, Australia’s protection of this human right is hidden behind implied language and complicated legal tests. Someone from a non-legal and disadvantaged background is bound to develop a misinformed knowledge of their rights.
Analysis and Conclusion
Alongside other arguments made for a human rights charter, [21] having our first-generation rights ingrained in a constitutionally protected human rights charter would mitigate the concerns discussed throughout the article A plain language constitutionally protected human rights charter ultimately increases human rights accessibility amongst broader society. [22] It could act as a document for many from non-legal, disadvantaged backgrounds to unequivocally understand their rights..
It is paramount to ensure human rights are directly accessible as they are conventionally recognised as the most basic protections of our civil liberty; thus, our citizens should be able to access them easily. The implementation of a constitutionally protected human rights charter would have a positive impact in increasing the accessibility of human rights amongst citizens.
[1] Australian Human Rights Commission, ‘Human Rights - what do I need to know? (2008), Australian Human Rights Commission (Publication, 2008) <https://humanrights.gov.au/our-work/publications/human-rights-what-do-i-need-know-2008>.
[2] Irina Kolodizner, ‘The Charter of Rights Debate: A Battle of the Models’ (2009) 16 Australian International Law Journal 219, 219; See also, Julie Debeljak, ‘Rights Protection Without Judicial Supremacy: A Review of the Canadian and British Models of Bills of Rights’ (2002) 26 Melbourne University Law Review 285, 285; George Williams, ‘A Charter of Rights for Australia’ (2008) 27 Dissent 10, 12; Australian Human Rights Commission, ‘Commission launches model for an Australian Human Rights Act’ (Media Release, 9 March 2023) <https://humanrights.gov.au/about/news/media-releases/commission-launches-model-australian-human-rights-act>.
[3] Australian Constitution s 51-2.
[4] Australian Human Rights Commission, ‘2 Background and framework for promotion and protection of human rights’, Our Work (Web Page) 13 <https://humanrights.gov.au/our-work/2-background-and-framework-promotion-and-protection-human-rights#:~:text=On%2021%20April%202010%2C%20the,integration%20of%20Australia%27s%20international%20obligations>.
[5] Irina Kolodizner, ‘The Charter of Rights Debate: A Battle of the Models’ (2009) 16 Australian International Law Journal 219, 223, 1; Rosalind Croucher, ‘Executive discretion in a time of COVID-19 - promoting, protecting and fulfilling human rights in the contemporary public health context’(Speech, Australian Academy of Law and Charles Darwin University, September 2022) <https://humanrights.gov.au/about/news/speeches/executive-discretion-time-covid-19-promoting-protecting-and-fulfilling-human#_ftn1>.
[6] Irina Kolodizner, ‘The Charter of Rights Debate: A Battle of the Models’ (2009) 16 Australian International Law Journal 219, 223, 2.
[7] K Evans and N Petrie, ‘COVID-19 and the Australian Human Rights Acts’ (2020) 45(3) Alternative Law Journal 175, 176-178. See also for increase in rights violation complains during COVID-19, Rosalin Croucher, ‘Bringing Rights Home: Mapping An Agenda On Promoting, Protecting and Fulfilling Human Rights In Australia’ (2021) 1(10) Victoria University Law and Justice Journal 11, 15; This article is in American jurisdiction. However, outlines the importance of upholding human rights in COVID and its direct correlation with mental health issues, Muhammad Rahman et al, ‘Mental Distress and Human Rights Violations During COVID-19: A Rapid Review of the Evidence Informing Rights, Mental Health Needs, and Public Policy Around Vulnerable Populations’ (2020) 11 Front Psychiatry 603875; Bruce Chen, ‘COVID-19 Stay at Home Restrictions and the Interpretation of Emergency Powers: A Comparative Analysis’, (2023) 44 Statute Law Review 1.
[8] Human Rights Law Centre, ‘COVID-19 sees huge increase in support for a Charter of Human Rights: poll’, Human Rights Law Centre (Web page, 9 September 2021) <https://www.hrlc.org.au/news/2021/9/7/covid-19-sees-huge-increase-in-support-for-a-charter-of-human-rights-poll>; Julie Debeljak, ‘Why the time is right for Australia to enact a Charter of Human Rights’, Lens (Web page, 24 Aprile 2023) <https://lens.monash.edu/@politics-society/2023/04/24/1385673/why-the-time-is-right-for-australia-to-enact-a-charter-of-human-rights>.
[9] Julian Burnside, Perspectives (Future Leaders, 1st ed, 1994) 45.
[10] Natasha Jones and Miriam Williams, ‘The Social Justice Impact of Plain Language: A critical Approach to Plain-Language Analysis’ (2017) 60(4) IEEE Transaction on Professional Communication 412.
[11] Joe Derry-Malone, ‘Are Human Rights Universal’, E-International Relations (Web Page, 4 October 2012) <https://www.e-ir.info/2012/10/04/are-human-rights-universal/>; Australian Human Rights Commission, ‘Human rights based approaches’, Australian Human Rights Commission (Web Page) <https://humanrights.gov.au/our-work/rights-and-freedoms/human-rights-based-approaches#:~:text=Everyone%20has%20the%20right%20to,language%20which%20can%20be%20understood>; Australian Human Rights Commission, ‘An introduction to Human Rights’, Australian Human Rights Commission (Web Page) <https://humanrights.gov.au/our-work/education/introduction-human-rights>; See also, for international acknowledgement, Council of Europe, ‘Introducing human rights education’ Manual for Human Rights Education with Young People (Web Page, 22 May 2015) <https://www.coe.int/en/web/compass/introducing-human-rights-education>.
[12] ABS, 2021.
[13] Australian Human Rights Commission, ‘Human Rights in Australia’ Australian Human Rights Commission (Web Page, 11 August 2020) <https://humanrights.gov.au/our-work/education/human-rights-australia#:~:text=Convention%20on%20the%20Rights%20of,Forms%20of%20Racial%20Discrimination%20(CERD)>.
[14] Claudia Mahler, ‘Make UDHR promises a reality for older persons: UN expert’, United Nations Human Rights Office of the High Commissioner (Media Release, 1 October 2023) <https://www.ohchr.org/en/statements/2023/09/make-udhr-promises-reality-older-persons-un-expert#:~:text=Despite%20its%20existence%2C%20older%20persons,contain%20explicit%20references%20to%20age>; United Nations, Strengthening Older People’s Rights: Towards a UN Convention (Review, July 2010), Older Persons’ Rights Project, Human Rights of Older Persons (Review, 2022).
[15] 2004 (Cth) (‘ADA’).
[16] Ibid s 4.
[17] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 19-20 (‘ICCPR’).
[18] Australian Human Rights Commission, ‘Human Rights in Australia’ Australian Human Rights Commission (Web Page, 11 August 2020).
[19] Australian Constitution s 7, 24.
[20] [1997] HCA 25.
[21] Julian Burnside, Perspectives (Future Leaders, 1st ed, 1994) 45;
[22] Natasha Jones and Miriam Williams, ‘The Social Justice Impact of Plain Language: A critical Approach to Plain-Language Analysis’ (2017) 60(4) IEEE Transaction on Professional Communication 412.