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A human rights act for Australia: Citing examples from the United Kingdom, New Zealand, Victoria and the ACT

Mitchell, Ewen (2014) A human rights act for Australia: Citing examples from the United Kingdom, New Zealand, Victoria and the ACT. Honours thesis, Murdoch University.

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Australia lacks a holistic instrument that protects human rights. Despite signing and ratifying many international treaties designed to protect human rights successive federal governments has failed to adequately enshrine these international obligations into domestic law. The current state of human rights protection in Australia is patchwork, representing potential failure to consider human rights in law making and policy development.

The constitution does not serve to effectively protect human rights as this was not the intention of its drafters. The common law cannot directly protect human rights as it is subservient to the express will of parliament. The above factors highlight the dangers of lacking an overarching human rights instruments and the need to address its absence. A dialogue model human rights act created at the federal level would serve to provide better practice for protecting human rights in Australia through removing the parliamentary monologue that exists in interpreting and applying human rights standards.

Existing human rights acts possess a commonality of human rights protected and mechanism of fostering dialogue. The human rights acts of New Zealand, The United Kingdom, Canada, Victoria, the A.C.T and chapter two of the South African constitution will provide guidance for developing a human rights act for Australia. They will also provide case studies against which the arguments for and against implementing a human rights act for Australia can be critically examined. Australia has its own unique separation of powers and constitutional system, therefore any legal challenges an Australia human rights acts would encounter will need to be examined in a more abstract and theoretical sense.

This thesis will present an argument for the adoption of a federal human rights act for Australia. Such an act should be based on provisions in other acts which are likely to assimilate and survive legal challenge in an Australian context. A human rights act will reduce criticism from human rights treaty monitoring bodies, allow Australia to participate in the development of international human rights jurisprudence and allow a better consideration of rights in the provision of public services. Legitimate criticism of dialogue model human rights instruments will also be explored in order to illustrate the counter arguments and their lack of probative value. This thesis will conclude that for the reasons discussed above Australia needs a human rights act in order to develop best practice for human rights protection.

Publication Type: Thesis (Honours)
Murdoch Affiliation: School of Law
Supervisor: Copeland, Anna
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