In AUSTRALIA
THE INCORPORATION
OF HUMAN RIGHTS
INTO DOMESTIC LAW
OUTLINE how human rights are incorporated into Australian
domestic law
You need to know HOW
our human rights have been
put into Australian Law.
THE INCORPORATION
OF HUMAN RIGHTS
INTO DOMESTIC LAW
OUTLINE how human rights are incorporated into Australian
domestic law
Australia DOES NOT HAVE a ‘Bill of
Rights’ (a single list of rights).
This means that human rights in
Australia don’t come from ONE
single source – our human rights
come from LOTS of different
laws, cases and the Constitution.
THE INCORPORATION
OF HUMAN RIGHTS
INTO DOMESTIC LAW
OUTLINE how human rights are incorporated into Australian
domestic law
Even when Australia has signed a
human rights treaty, it does not
automatically become part of
Australian law.
UN Treaty
The government has to pass a normal
law through our parliament to say that
people in Australia have the rights we
agreed to at the UN.
We should just pass the WHOLE
agreement, but we never have.
There are always SOME rights that we
LEAVE OUT, even though we told the
UN that we agreed to them.
Australian Law
THE INCORPORATION
OF HUMAN RIGHTS
INTO DOMESTIC LAW
OUTLINE how human rights are incorporated into Australian
domestic law
The CONSTITUTION
The Executive
GovernorGeneral
Includes some EXPRESS (“clearly
written”) RIGHTS
Can INTERPRET the Constitution to have
IMPLIED RIGHTS (rights not written, but the
words mean that certain rights DO still exist)
Can REFUSE TO SIGN laws passed
by parliament if they violate the
rights found in the Constitution
T
h
e
Agrees to treaties
PM
FEDERAL
PARLIAMENT
Ministers
Can PASS STATUTES that replace
common law decisions (can
override the decision by passing
a law)
Passes statute laws (including laws that reflect our obligations
under human rights treaties we have signed).
Starting in 2012, all Bills come with a ‘Statement of Compatibility’,
which tells Australians if parliament is passing a law that is
incompatible with Australia’s international human rights obligation
– Human Rights (Parliamentary Scrutiny) Act 2011) – but even if a
Bill fails this test, it doesn’t stop the Bill from becoming a law!
INFLUENCE
NGOs
INFLUENCE
INFLUENCE
THE MEDIA
Can INTERPRET
statute laws to
include HR
APPLY HR statutes
to cases
COURTS
& TRIBUNALS
(there are some long-standing
common law rights)
H
I
G
H
C
O
U
R
T
THE INCORPORATION
OF HUMAN RIGHTS
INTO DOMESTIC LAW
OUTLINE how human rights are incorporated into Australian
domestic law
The CONSTITUTION
The Executive
GovernorGeneral
Includes some EXPRESS (“clearly
written”) RIGHTS
Can INTERPRET the Constitution to have
IMPLIED RIGHTS (rights not written, but the
words mean that certain rights DO still exist)
Can REFUSE TO SIGN laws passed
by parliament if they violate the
rights found in the Constitution
T
h
e
Agrees to treaties
PM
FEDERAL
PARLIAMENT
Ministers
Can PASS STATUTES that replace
common law decisions (can
override the decision by passing
a law)
Passes statute laws (including laws that reflect our obligations
under human rights treaties we have signed).
Starting in 2012, all Bills come with a ‘Statement of Compatibility’,
which tells Australians if parliament is passing a law that is
incompatible with Australia’s international human rights obligation
– Human Rights (Parliamentary Scrutiny) Act 2011) – but even if a
Bill fails this test, it doesn’t stop the Bill from becoming a law!
INFLUENCE
NGOs
INFLUENCE
INFLUENCE
THE MEDIA
Can INTERPRET
statute laws to
include HR
APPLY HR statutes
to cases
COURTS
& TRIBUNALS
(there are some long-standing
common law rights)
H
I
G
H
C
O
U
R
T