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    Human Rights Safe in Australia - Whose Rights?

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    Introduction

    HUMAN RIGHTS SAFE IN AUSTRALIA - WHOSE RIGHTS "A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inferences"1 I INTRODUCTION Australia is somewhat a strange and nonsensical oddity in the world today. As a nation that has championed the cause of fundamental human rights,2 and was one of the original drafters of the Universal Declaration of Human Rights,3 it has consistently failed to equally guarantee the protection of those very same rights for its own people.4 Despite being a signatory to all human rights treaties, Australia stands today as the only western democracy in the world without a Bill of Rights,5 a failing that has permitted repeated breaches of fundamental freedoms committed under the 'lawful' authority of government policy and legislation.6 This paper will briefly outline the case for an Australian Bill of Rights and echoes the call of many people who recognize the current system is vastly inadequate.7 II WHO NEEDS PROTECTING? Rights protection for white, upper-middle class male conservatives has generally been assured throughout Anglo-Australian history, because they have almost exclusively occupied the strongest positions of political, legal and social power; including the drafting and judicial oversight of the Australian Constitution and all other legislation.8 In contrast, people outside this group, including Indigenous Australians, women, homosexuals, young people, religious minorities and those from non-English speaking backgrounds, are vastly unrepresented in such positions and are most at risk from rights abuses.9 Ultimately, there is no true protection of fundamental freedoms unless it is firmly grounded in equity.10 III THE ARGUMENTS AGAINST A BILL OF RIGHTS - POLITICAL MYTHS 3.1 Parliamentary Protection? Democratic representation is a poor conduit for the protection of individual rights,11 clearly demonstrated during almost 12 years of the neo-conservative Howard government.12 His leadership dominated the party at all levels and effectively nullified any alternate views, ensuring an almost dictatorial form of government, far detached from democratic representation.13 This failure ...read more.

    Middle

    Builders Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372. Coco v R [1994] HCA 15. Durham Holdings v New South Wales (2001) 205 CLR 399. Fardon v Attorney-General (Qld) [2004] HCA 46. Haneef v Minister for Immigration and Citizenship [2007] FCA 1273. Hicks v Ruddock [2007] FCA 299. Kartinyeri v Commonwealth (1998) 195 CLR 337. Kable v Director of Public Prosecutions (NSW) [1996] HCA 24. Kruger v Commonwealth (Stolen Generations case) [1997] HCA 27. Krygger v Williams [1912] HCA 65. Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203. Miller v TCN Channel Nine Pty Ltd [1986] HCA 60. Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 78 ALJR 737. Minister of Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 219 CLR 664. Newcrest Mining (WA) v The Commonwealth (1997) 190 CLR 513. Powell v Apollo Candle Co (1885) 10 App Cas 282. Re Woolleys [2004] HCA 49. R v Cheng (2000) 203 CLR 248. R v Pearson; ex parte Sipka (1983) 152 CLR 254. South Australia v O'Shea [1987] HCA 39. State Government Insurance Commission v Trigwell (1979) 142 CLR 617. Street v Queensland Bar Association [1989] HCA 53. Thomas v Mowbray [2007] HCA 33. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. 3. Legislation Anti-Terrorism Act (No 2) 2005 (Cth). Australian Constitution. Dangerous Prisoners (s****l Offenders) Act 2003 (Qld). Hindmarsh Island Act 1997 (Cth). Migration Act 1958 (Cth). Northern Territory National Emergency Response Act 2007 (Cth). 4. Treaties Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Universal Declaration of Human Rights, UN GA Res 217 A(III) of 10 (1948). 5. ...read more.

    Conclusion

    <http://www.amnesty.org/en/library/asset/ASA12/003/2005/en/dom-ASA120032005en.html> at 3 September 2008, McHugh, above n 3, 17. 85 Al-Kateb v Godwin [2004] HCA 37, [2](Gleeson CJ). 86 Ibid. 87 Al-Kateb v Godwin [2004] HCA 37, [24](Gleeeson CJ). 88 Al-Kateb v Godwin [2004] HCA 37, [36]-[51](McHugh J) 89 Australian Constitution s 51 (xix). 90 Al-Kateb v Godwin [2004] HCA 37, [36]-[51](McHugh J). 91 Al-Kateb v Godwin [2004] HCA 37, [31](McHugh J). 92 McHugh, above n 3, 18, See also Minister of Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 219 CLR 664. 93 Re Woolleys [2004] HCA 49, Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 78 ALJR 737. 94 Re Woolleys [2004] HCA 49, Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 78 ALJR 737. 95 Re Woolleys [2004] HCA 49, [108]-[109](McHugh J), McHugh, above n 3, 18, Human Rights and Equal Opportunity Commission (HREOC), A Last Resort? National Enquiry into Children in Immigration Detention (2004) 214. 96 Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 97 Human Rights and Equal Opportunity Commission (HREOC), A Last Resort? National Enquiry into Children in Immigration Detention (2004) 847-879. 98 Re Woolleys [2004] HCA 49, [186]-[189](Kirby J). 99 Re Woolleys [2004] HCA 49. 100 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36. 101 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36, [21](Gleeson CJ). 102 Kruger, above n , 335. 103 McHugh, above n 3, 43-44, Williams, above n 5, 89-91, Mason, above n 2. 104 ABC TV, 'Howard unveils IR plan', 7.30 Report, 26 May 2005, <http://www.abc.net.au/7.30/content/2005/s1378092.htm> at 3 September 2008. 105 Kingston, above n 12, McHugh, above n 3, 36-39, von Doussa, above n 5, Brennan, above n 7, 1-3. 106 Jefferson, above n 1. ?? ?? ?? ?? ...read more.

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