Are human rights adequately protected and promoted - Attorney ...

Human Rights (Sexual Conduct) Act 1994 (Cth), which overrode the Tasmanian
provision, and the Tasmanian Parliament ultimately repealed the provision. 24
There are a number of instances, however, where the Australian Government has
either failed or refused to adopt the recommendations of these committees. For
example, in A v Australia 25 the Human Rights Committee found that A’s immigration
detention was arbitrary (in violation of article 9(1) of the ICCPR) and that his inability
to challenge the lawfulness of the detention breached article 9(4). The Committee
recommended that Australia pay compensation to A, but the Federal Government
rejected the recommendation. 26
While the findings of treaty bodies can put political pressure on Australia to
reconsider laws and policies that are found to be inconsistent with its international
human rights obligations, the recommendations are not binding or enforceable. 27 As
the Gilbert + Tobin Centre of Public Law noted:
the Australian Government cannot be compelled by a successful applicant to
adhere to these recommendations … [They] are unlikely to affect our domestic
situation unless they receive media coverage and/or are incorporated into the
policies of either or both of the major parties. 28
5.3 The democratic system
Many submissions pointed to the strength of Australia’s democratic institutions as a
means of protecting and promoting human rights.
Australia’s democratic institutions
• The Australian Constitution. The Constitution is in written form and can be
amended only by referendum. This requires the approval of a majority of voters
nationally, as well as a majority of voters in a majority of states.
• Representative democracy. Australia is a democratic nation that elects its
governments by popular vote. For many this is a fundamental guarantee of
human rights. As Steve Pasfield submitted, ‘If the majority feel someone is not
getting a fair go then they will speak at the ballot box’. 29
24 N O’Neill, S Rice and R Douglas, Retreat from Injustice: human rights law in Australia (2004) 189.
25 Communication No. 560/1993 (30 April 1997).
26 N O’Neill, S Rice and R Douglas, Retreat from Injustice: human rights law in Australia (2004) 189.
27 For example, Castan Centre for Human Rights Law, Submission; Australian Lawyers Alliance, Submission.
28 Gilbert + Tobin Centre of Public Law (E Santow), Submission.
29 S Pasfield, Submission. See also L Bagnall, Submission.
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