Liberal Democracy HUMAN RIGHTS

Transcription

1 HUMAN RIGHTS

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3 Liberal Democracy HUMAN RIGHTS Notes from board Additional information Readings attached from the Australian Human Rights Commission

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5 Australian Human Rights Commission FACT SHEET 1: everyone, everywhere, everyday Human rights are often defined in different ways. Simple definitions that are often given include: the recognition and respect of peoples dignity 1 a set of moral and legal guidelines that promote and protect a recognition of our values, our identity and ability to ensure an adequate standard of living the basic standards by which we can identify and measure inequality and fairness B those rights associated with the Universal Declaration of Human Rights. The Australian Human Rights Commission Act 1986 (AHRC Act) contains a limited definition of human rights for the purposes of that Act. 'Human rights' are defined by section 3 of the AHRC Act as the rights and freedoms contained in specific international instruments that are scheduled to, or declared under, the AHRC Act. These instruments are: r International Covenant on Civil and Political Rights B Convention on the Rights of Persons with Disabilities Convention on the Rights of the Child a Declaration of the Rights of the Child a Declaration on the Rights of Disabled Persons B Declaration on the Rights of Mentally Retarded Persons Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. The effect of this limited definition is to limit the scope of the functions of the Australian Human Rights Commission that relate to 'human rights' (see section 11 of theahrcact). The Aboriginal and Torres Strait Islander Social Justice Commissioner also exercises functions on behalf of the Commission in relation to the human rights of Aboriginal and Torres Strait Islander people (see section 46C of the AHRC Act)). 'Human rights in this context includes the rights and freedoms recognised by the International Convention on the Elimination of All Forms of Racial Discrimination (see section 46A of the AHRC Act). In exercising these functions, the Commissioner is also required to have regard to additional human rights instruments where appropriate, namely: a Universal Declaration of Human Rights a International Covenant on Economic, Social and Cultural Rights Any other instrument relating to human rights that the Commissioner considers relevant (see section 46A(4) of the AHRC Act). All Human Rights Explained fact sheets are online at: Australian Human Rights Commission 2009

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7 FACT SHEET 5: bill Australian Human Rights Commission everyone, everywhere, everyday After the end of World War II a series of conventions and declarations began to articulate universal human rights. A convention (sometimes called a covenant) is a binding treaty, coming into force upon ratification by a certam number of States. Article 26 of the Vienna Convention on the Law of Treaties provides that: Every treaty in force is binding upon the parties to it and must be performed by them in good faith'. A declaration is not legally binding but carries moral weight because it is adopted by the international community. The United Nations was established, partly to continue the work of the dissolved League of Nations, in response to proposals for the creation of a new world body to monitor relations between States. The United Nations is'an international organisation representing the body of States, established according to the United Nations Charter in One of the purposes of the United Nations is to promote and encourage respect for human rights through international co-operation. There are currently one hundred and ninety two member States. Each has one vote in the United Nation's parliament, the General Assembly [ What is known as the International BiU of Human Rights is made up of: Universal Declaration of Human Rights (1948) International Covenant on Civil and Political Rights (1966) International Covenant on Economic, Social and Cultural Rights (1966) Optional Protocol to the International Covenant on Civil and Political Rights Optional Protocol to the International Covenant on Economic, Social and Cultural Rights UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) In 1948 the United Nations General Assembly adopted the UDHR. This was the first time that countries agreed on a comprehensive statement of inalienable human rights. The UDHR is not a treaty, so it does not directly create legal obligations for States. The Declaration has however, had a profound influence on the development of international human rights law. It is argued that because States have constantly invoked the Declaration over more than 50 years, it has become binding as a part of customary international law.2 ^ On the same day that it adopted the UDHR, the United Nations General Assembly asked its Commission on Human Rights to draft a covenant on human rights, which could become a bmding treaty. After sue years of drafting and debate, in 1952 the General Assembly requested that the Commission on Human Rights draft two covenants rather than one. The covenants, International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were opened for signature in 1966 and entered into force in For the rules on treaties coming into force go to: http;//un.treaty.un.org/e;nglish/"rreatyhandboo.i.</chapter4.htm INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966 (ICCPR) Cml and political rights include the right to freedom of conscience and religion, the right to be free from torture, and the right to a fair trial. Most of these rights are not absolute. Instead they are subject to reasonable limitations which are created for a legitimate purpose. For example, it may be legitimate to limit a right in order to protect national security, public order or the general welfare of a democratic society. Some rights, such as the right not to be held in slavery and the right to be free from torture are absolute. Article 4 of the ICCPR identifies absolute (or non-derogable) rights which can not be infringed in any circumstances. All Human Rights Explained tact sheets are online at: Australian Human Rights Commission 2009

8 PAGE 2: Australia agreed to be bound by the ICCPR on 13 August 1980, subject to certain reservations.3 Article 2(2) of the ICCPR requires Australia to take all necessary legislative and other measures to give effect to the rights in the Convention. The ICCPR is scheduled to the Australian Human Rights Commission Act 1986 (Cth) (the AHRC- Act), and the Australian Human Rights Commission is responsible for monitoring Australia's compliance with the ICCPR.4 The ICCPR has two Optional Protocols. An optional protocol supplements the original convention with additional obligations. Optional Protocol to the International Covenant on Civil and Political Rights 1966 On 25 September 1991, Australia agreed to be bound by the First Optional Protocol to the ICCPR. This means the United Nations Human Rights Committee can hear complaints from individuals who allege that the Australian Government has violated their rights under the ICCPR. However, the findings of the Human Rights Committee are not enforceable. For examples refer to the case studies. Second Optional Protocol to the International Covenant on Civil and Political Rights On 2 October 1990, Australia agreed to be bound by the Second Optional Protocol to the ICCPR. The purpose of this protocol is for States to eliminate the death penalty. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966 (ICESCR) Economic, social and cultural rights include the right to an adequate standard of living, the right to education, the right to fair wages and the right to safe working conditions, Article 2(1) of the ICESCR requires States to take steps, including legislative measures, to achieve the progressive realisation oficescr rights. This requires that States only demonstrate in good faith the fulfilment of the rights over time within their capacities. For example, it is assumed that where States have inadequate resources to ensure free education is provided, they will work towards achieving this goal. The United Nations Committee on Economic Social and Cultural Rights (the CESCR) monitors compliance with the ICESCR and provides guidance on how countries should interpret the ICESCR.5 An increasing number of countries, across all continents and legal systems, have incorporated judicial review of economic, social and cultural rights. These include South Africa, Finland, Argentina, Mauritius, Canada, Latvia, France, India, Bangladesh, Nigeria, and most countries in Central and Eastern Europe. On 10 December 1975, Australia agreed to be bound by the ICESCR. The IC-ESCR does not, however, form part of Australia's domestic law and is not scheduled to, or declared under, the AHRC Act. However, the AHRC Act does give the Aboriginal and Torres Strait Islander Social Justice Commissioner specific statutory functions in relating to protecting and promoting the human rights of Aboriginal persons and Torres Strait Islanders.6 In the performance of these functions the Social Justice Commissioner must have regard to a number of international declarations and conventions, including the ICESCR.7 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights This Optional Protocol was adopted by the United Nations General Assembly on 10 December It will be open for signature for State Parties to the ICESCR from 24 September There have been numerous other human rights treaties developed since A list of the major human rights treaties is available at the Office of the High Commissioner for Human Rights website [ ' Article 1, United Nations Charter available at b.ttp://\vww.un.otg/aboutun/chartei:/inde;x.htnil. 2 Henry J Steiner and Philip Alston, International Human Rights in Context: Law, Politics. Morals, (2nd ed), Oxford University Press, Oxford, For a list of Australia's reservations, see http;/7www.ausei.u.edu.au/,;iu/oth,er/dl'at/treatk:s/l980/23.1ituil. 4 Since 1986, the Commission has had the powers to mvestigate alleged violations of the ICCPR, although it has no power of penalty or enforcement. The Commission also has other powers to monitor Australia's compliance with the ICCPR, mduding the power to examine whether federal legislation complies with Australia's obligations under the ICCPR. See Australian Human Rights Commission Act 1986 (Cth), sll(l)(e)andsll(l)(f). 5 Committee for ESCR General Comment l\'o. 03: The Nature of States Parties Obligations, U.N. Doc HRI\GEN\l\Rev.l at 45 (1994), available at: 6 Australian Human Rights Commission Act 1986 (Cth) s46c(l). 'Australian Human Rights Commission Act 1986 (Cth) s 46C(4)(a). All Human Rights Explained fact sheets are online at: Australian Human Rights Commission 2009

9 Australian Human Rights Commission FACT SHEET 6: everyone, everywher&s everyda} to The process of committing to international human rights treaties involves: SIGNING INTERNATIONAL HUMAN RIGHTS TREATIES If Australia signs an international human rights treaty it is making a preliminary endorsement of the treaty. Signing the instrument does not create a binding legal obligation but does demonstrate the States intent to examine the treaty domestically and consider ratifying it. RATIFYING INTERNATIONAL HUMAN RIGHTS TREATIES States that are members of the UN can elect to ratify or accede to a treaty or convention. Ratification or accession is a voluntary undertaking by the State to be bound by the terms of the treaty under international law. Though accession has the same effect as ratification, the process differs. In the case of ratification, the State first signs and then ratifies the treaty. The process for accession has only one step - it is not preceded by an act of signature. If a State chooses to ratify and become party to a human rights treaty, that country is obliged to ensure that its domestic legislation complies with the treaty's provisions. In the case of major human rights treaties, the obligations of State Parties include regular reporting to and scrutiny by, UN human rights bodies. If a State faus to comply with the terms of the treaty, that country will be in breach of international law. RESERVATIONS AND UNDERSTANDINGS Reservations and Understandings are statements made by State Parties at the end of a Convention, which limit some of their obligations under the terms of the Convention. The Australian Government has made reservations to specific Articles in Conventions where the requirement of the Article conflicts with an area of domestic law. MAKING INTERNATIONAL HUMAN RIGHTS TREATIES PART OF DOMESTIC LAW Each State must create legislation that incorporates the articles of Conventions that have been ratified. This process can differ according to each States legal system. For example, in the United States all international conventions are automatically considered part of federal law after the convention has been ratified, owing to their Constitution. In Australia however, federal legislation needs to be created by parliament for a convention to be binding in Australia. Depending on the area of law, Australian states and territories may also be required to introduce relevant legislation. All Human Rights Explained tact sheets are online at: wivw.humanrights.gov.au/education/hr_explained/ Australian Human Rights Commission 2009

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11 Australian Human Rights Commission FACT SHEET 7: everyone, everywhsre, everyda} Australia does not generally agree to be bound* by a human rights treaty unless it is satisfied that its domestic laws comply with the terms of the treaty. Australia has agreed to be bound by the ICCPR and the ICESCR as well as other major human rights instruments, Convention on the Prevention and Punishment of the Crime of Genocide Convention on the Political Rights of Women International Convention on the Elimination of all forms of Racial Discrimination Convention on the Elimination of all forms of Discrimination against Women r Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment» Convention on the Rights of the Child s Convention on the Reduction of Statelessness a Convention relating to the Status of Stateless Persons Convention Relating to the Status of Refugees Slavery Convention of B Supplementary Convention on Slavery s Convention on the Rights of Persons with Disabilities While Australia has agreed to be bound by these major international human rights treaties, they do not form part ofaustralias domestic law unless the treaties have been specifically incorporated into Australian law through legislation.2 Some provisions of a treaty may however already exist in national legislation. For instance, many of the provisions contained in the Convention on the Rights of People with Disabilities are mirrored in Australian law through the Disability Discrimination Act 1992 (Cth). This principle reflects the fact that agreeing to be bound by a treaty is the responsibility of the Executive in the exercise of its prerogative power, whereas law making is the responsibility of the parliament. Section 51(xxix) of the Australian Constitution, the external affairs' power, gives the Commonwealth Parliament the power to enact legislation that implements the terms of those international agreements to which Australia is a party.3 For further information on the treaties and conventions that Australia has signed see the Department of Foreign Affairs and Trade (DFAT) Treaty Database [ ' States can agree to be bound by a treaty by ratifying it or acceding to the treaty. Ratification is the process by a which a signatory state to a treaty confirms that it intends to be bound by that treaty. This is usually done by the signatory state signing the treaty. 'Accession occurs when a state, which did not ratify a treaty, formally accepts its provisions. 2 Kioa v West (1985) 159 CLR Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1. All Human Kigflts Explained fact sheets are online at: Australian Human Rights Commission 2009

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13 Australia and the Human rights on refuge (Ethan and Alex) TREATIHG- PROBLEM Human rights apply to all human beings and need to be upheld to the highest point by the liberal democracy. One of the founding principles of the liberal democracy in Australia is how the people from Australia and outside Australia are to be treated and the rights that everyone is entitled too. Australia and its relation to refugees have been in the political spotlight for some years now and many of the people of Australia have made they concern heard by the leaders of this country. This image was taken at rally due to two Afghan refugees taking legal action over Australia delaying Australian citizenship. The Government and today's society view asylum seekers as the problem. The liberal democracy today and its view on the asylum seeker is a big deal to the Australian people and its leaders sparking a massive debate on not only social media, but the government as well. Due to terror attacks in the US and the Middle Eastern countries, Australia and US are both worried about taking in asylum seekers and in particular, Muslim religious people. Australia is a signing collaborator of the Geneva Convention and how to treat people in difficult situations and this needs to be more prominent in today's society.

14 Australia has always been a major advocate of human rights-it was a founding member of the UN, and one of the 8 nations involved in drafting the Universal Declaration of Human Rights. In 2008, we issued an invitation for UN human rights experts to come and inspect Australia for violations of the UDHR. However, in 2015, Australia denied a visit from Frangois Crepeau-who is a UN human rights expert. He was declined access to offshore detention centres-and legal immunity was denied for any detention staff members who talked to him. This means that if they disclosed any information to him, they could be risking a prison sentence of up to 2 years. The Australian rights of women and children in the Nauru detention centre are to be free from abuse and assault, and to adequate medical care (these are basic human rights). However, Australia can freely refuse responsibility for these rights, since they rely on the Nauru government. At the time of the visit, Prime Minister Malcolm Turnbull and Minister for Foreign Affairs Julie Bishop were in New York, competing for one of the last two places on the UN Human Rights Council This incident, along with several other concerns about Nauru's care for its inhabitants, has caused many people to call for it to be either closed down or be drastically overhauled to be more humane. To do this under the laws of a liberal democracy, the people choose and elect someone who shares their belief that the centre should be shut down. Malcolm Turnbull has, for a while now, been planning to close the centres and have the refugees resettled to the US. However, this plan comes with several more problems that we won't be touching upon for now-(trump).

15 ^ ^ ^ iff'^r'':v'^ ""'"'"u'^ EVERY Every human being has rights. Whether they be in a detention centre, or in our country, or anywhere, all human beings have the rights to education, to freedom from abuse and assault, to free speech, etc, etc. One of the founding principles of liberal democracy is that the government should not have the power to refuse people those rights. Australia has always been a huge supporter of human rights and liberal democracy. We operate under a representative and liberal democracy-but even so, we still have a long way to go in completely observing human rights for all human beings. This image is from a Human Rights rally in 2011, which was the 60th anniversary of the United Declaration of Human Rights. References Priyankamogul.wordpress.com. (2017). petition -Priyanka Mogul. [onlme] Available at: [Accessed 8 Mar. 2017]. The Conversation. (2017). Have faith: civil religion can counter the lure of eternal life for Jihadists. [online] Available at: [Accessed 8 Mar. 2017]. UNSW Human Rights Clinic, T. (2017). Australia's Human Rights Doublethink. [onlme] The Diplomat. Available at: [Accessed 8 Mar. 2017]. Murphy, T (2016). Afghan refugees take legal action over Australian citizenship delays - Humanosphere. [online] Humanosphere. Available at: [Accessed 3 Mar. 2017]. Humanrights.gov.au. (2015). Asylum seekers and refugees guide Australian Human Rights Commission. [online] Available at: [Accessed 3 Mar. 2017].

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17 Molly and Zeke Human Rights Article 9 of the Universal Declaration of Human Rights: "No one shall be subjected to arbitrary arrest, detention or exile." Every person has the right and freedom not to be arbitrarily arrested, exiled. This means that no person can be arrested or exiled unless there is evidence or a likelihood that the law was broken and a crime was committed. Article 9 of the International Covenant on Civil and Political Rights says: "1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." "2.Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him." "3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general mle that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement." "4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfalness of his detention and order his release if the detention is not lawful." "5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."

18 Molly and Zeke Article 11 of the Universal Declaration of Human Rights: "1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at -which he has had all the guarantees necessary for his defence. " "2. No one shall be held guilty of any penal offence on account of any act or omission -which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. Were all proven until Every person who is charged with a penal offence has the right to the presumption of innocence. The presumption of innocence is if you are accused of a crime, you don't have to prove you are innocent, rather, the prosecutor has to prove you are guilty beyond reasonable doubt. To be proven guilty beyond reasonable doubt means if there is any element of doubt in your case, you are to be found innocent. This feature of the system is designed to protect the rights of individuals when they are accused of a crime. The foundation behind this feature is that it is better that the guilty are free rather than the innocent convicted wrongfully. From the Affording Justice website, "But our system is not without controversy. Many victims of crime see the system as being stacked in favour of the accused person, rather than protecting their rights. And despite all of the protection in the system there are still miscarriages of justice where innocent people are convicted."

19 Molly and Zeke Article 25 of the Universal Declaration of human rights states that: "1. Everyone has the right to a standard of living adequate for the health and -well-being of himself and of his family, including food, clothing, and housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control." "2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. " IHoMEiess -rbswk^ IALL My BELONGWCS Hwf Bwtf!STbt^,-.Gww.auuamr<'»»*'"- Itfl^to te'ftorfou*'* * "^ ISEiS^rt&.^ia.^^ The Australian Government recognises that homelessness is a complex issue that affects many Australians. It requires a long-term and systematic effort across agencies, sectors, and the community. While state and territory governments are responsible for service delivery, the Commonwealth supports state and territory governments in their role of providing services to the homeless, or those at risk ofhomelessness, with funding through the National Affordable Housing Afireement and the National Partnership Agreement on Homelessnes The Government is providing $230 million over two years for the National Partnership Agreement on Homelessness to 30 June 2017.The Government also provides $1.3 billion per annum to states and territories, through the National Affordable Housing Agreement, which includes around $260 million for homelessness services. The Government invests approximately $23.8 million per annum for the Reconnect program which assists young people who are homeless, or at risk ofhomelessness. Regardless of the funding towards solving homelessness, currently there are 105,000 people experiencing homelessness every night in Australia. Even though it is our right, it isn't necessarily law. ("Homelessness Department Of Social Services, Australian Government")

20 Molly and Zeke References: 1. Right to security of the person and freedom from arbitrary detention Australian Human Rights Commission, (n.d.). Retrieved from 2. What does the presumption of innocence mean? - Affording Justice. (n.d.). Retrieved from

21 Josh, Makayla, Michelle are the basic rights and freedoms that belong to everyone. They apply to you whether you are young or old, sick or healthy, regardless of where you are from, what you believe or how you choose to live your life. Your rights can't be taken away, although they can sometimes be restrictedfor example if a person breaks the law, or in interests of national security. In Australia, human rights are protected in different ways. Unlike most similar liberal democracies, Australia has no Bill of Rights to protect human rights in a single document. Rather, rights may be found in the Constitution, common law and legislation. Gender equality is having access to rights or opportunities regardless of gender. It links to liberal democracy in that it protects the rights of individuals in law. There is a different amount of male and female representation in the government to the public. This is because males are stereotypically seen as leaders, and therefore women leaders are seen as less important. Women only gained ' ',, the right to vote and to be elected to parliament in The Sex Discrimination Act of 1984 promoted equality \ \ between men and women, eliminated discrimination on I the basis of sex, marital status or pregnancy and with I ] respect to dismissals or family responsibilities, it also tried to eliminate sexual harassment at work, educational institutions, in the provision of goods and services, or in the provision of accommodation. Although this Act is still in effect, women in Australia still experience up to 17% less pay than men. The Right to Protest is the right to join with fellow citizens in protest or peaceful assembly against a law, proposed law, discriminations, flawed right etc. This links to liberal democracy in that it is crucial to a functioning democracy for people to have a say and voice their opinions, as this is what a democracy tries to accomplish. There is no free standing right to protest, but protest is protected directly and indirectly by the law. First, the common law protects protest as a fundamental right and freedom. Secondly, even without a bill of rights, the Australian constitution provides indirect constitutional protection for protest- as political speech -through the suggested freedom of political communication. Australian case law on the suggested freedom of political communication is puzzling, and to some extent unresolved. But with the right set offsets, there is the likelihood of constitutional protection for protest.

22 Freedom of speech is when you have freedom of opinion and expression, our laws strike a balance between preserving these freedoms and protecting people from unfair treatment and discrimination. There are laws to protect the community against being exposed to obscenities and to protect a person's integrity against false information, such as the Defamation Act 2005 and Anti-Discrimination Act Under the Anti-Discrimination Act 1991 there are laws against saying or writing things to ignite hatred against others because of their race, religion, sexuality or gender identity (transgenderism). Under the Racial Discrimination Act 1975, it is illegal to commit an act likely to offend, insult, humiliate or intimidate another person or group if you're doing it because of their race, colour or national or ethnic origin. These restrictions relate to the content of the material, as well as how and where it's distributed, and exhibited. In Australia, Freedom of speech is important in liberal democracies because it allows a citizen to express their opinions to government. httds://