‘The Australian legal system protects & enforces HR.’ Assess this statement with reference to examples (8 marks)
The Australian legal system has varying levels protecting & enforcing HR that is largely reliant on their compliance with international treaties & standards of HR.
Through Australia’s ratification and codification of international HR treaties into domestic legislation, the legal system’s ability to protect & enforce HR domestically is enhanced. This is seen in Australia’s implementation of the Anti-Discrimination Act 1977 which codified Article 23 of the UDHR ‘Everyone has the right to work.... Without discrimination’. This act protects individuals HR through the legal-backing it provides Australia with enforcing anti-discrimination laws in accord with the UDHR. As such, through enforceable domestic legislation, the Australian legal system is able to enforce HR such as freedom from discrimination. Moreover, Australia also implemented the Education Act 1990 in response to Article 26 of the UDHR ‘Everyone has the right to education’. Education is a fundamental entitlement of all people to attend school and receive instruction which assists in the betterment of their lives, & thus by making it a right for children aged 6-17 to attend school, this domestic legislation protects the HR to an education. Thus, the implementation of domestic legislation to reflect international standards of HR allows the Australian legal system to protect & enforce HR.
In contrast, the case-by-case interpretation used in common law can detract from the protection of HR by allowing the legal system to interpret HR treaties and use SS to enforce legislation that devalues HRs. This is seen in the use of the Terrorism (Police Powers) Act 2002 (NSW) to detain Dr Haneef for 14 days, denying him the presumption of innocence & rule of law, thus depriving him of his HR. This demonstrates the inability of the legal system to protect HR through enforcing legislation that undermines international standards of HR. Additionally, in the Sharma v Minister for Environment case, the judges use of common law established a precedent that Australians can’t hold their leaders accountable for environmental neglect. Through judicial discretion, the judge was able to make this decision despite signing the ACHPR which states that ‘All people shall have the right to a general satisfactory environment’, as there was no implementation of domestic legislation to reflect this. This shows how Australia's lack of compliance with otherwise hard to enforce international HR treaties hinder the legal system from protecting & enforcing these HR as there is no way to hold Australia accountable due to the notion of SS.
Therefore, the moderate use of compliance with international HR treaties has caused some challenges in the Australian legal system protecting & enforcing HR.
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