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Explain how the Constitution strengthens and weakens the federal government's power to legislate in response to human rights issues. Refer to two sections of the Constitution to support your answer.
The federal government’s power to legislate in response to human rights issues is both strengthened and weakened by the Constitution. Human rights are not specifically listed as a Commonwealth power, meaning the Commonwealth does not have a general power to legislate on human rights and many areas remain within the states’ residual powers. However, s 51(xxix) gives the Commonwealth power over “external affairs”, which the High Court has interpreted to include implementing Australia’s obligations under international treaties, including human rights treaties such as the Convention on the Rights of the Child. Therefore, s 51(xxix) strengthens the Commonwealth’s ability to legislate on human rights, while the division of powers limits its ability to do so generally.
Explain how Article 2(4) of the United Nations Charter promotes the protection of Members’ rights. In your response, explain the principles of territorial integrity and political independence.
Article 2(4) of the United Nations Charter promotes the protection of Members’ rights by instructing Members against using force or threats of force against another country in any way, including against their territorial integrity and political independence. Territorial integrity refers to a country’s independence related to its physical and demographic resources in its land, air and sea boundaries. According to Article 2(4), this means one country cannot legally impose border changes on another or access their resources without that country’s permission. Political independence is related to the non-material elements of a country’s autonomy, such as freedom of political decision making. This means it is not legal, under Article 2(4), for one country to impose a political governance system on another.
Describe and explain the role of the Australian Constitution (including the external affairs power within s 51) in protecting express and implied human rights in Australia
S 51 of the Constitution - the external affairs power - has been interpreted by the High Court to allow the Federal (Commonwealth) government to enter into treaties on Australia's behalf. As a result, the Foreign Minister or their delegate are allowed to go to the United Nations and enter into treaties, even on matters generally considered state affairs (e.g., the environment). Because Australia has signed these treaties, the Federal Parliament must therefore pass laws to give domestic legal effect to those treaties. S 51 of the Constitution therefore enables legislation that implements Australia's international human rights obligations.
Explain the - process by which treaty obligations translate into domestic law through accession or ratification, the role of reservations
Ratification/Ascension: Australia's executive (a government minister) agrees to be legally bound by an international treaty.
Reservation: Australia agrees to the treaty but states that a particular provision will not apply, or will apply in a modified way.
Domestic implementation: Ratification alone does not make a treaty Australian law. Commonwealth legislation is generally required to implement the treaty domestically. The external affairs power in s 51(xxix) can provide constitutional authority for this legislation.
Explain the effect of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) contains two key processes that contribute to the protection of human rights. It establishes a Parliamentary Joint Committee on Human Rights, consisting of Members of the House of Representatives and the Senate, which examines Bills and Acts for their compatibility with human rights, and to report on human rights issues in Australia. The Committee has a crucial role in protecting human rights because it ensures that all legislation passed in the Commonwealth Parliament complies with international human rights law. The Act also mandates that proposers of legislation prepare a Statement of Compatibility which also examines whether Bills conform with human rights. This is an important step in the legislative process because it ensures that all Bills introduced in Parliament conform with human rights.
Explain the United Nations High Commissioner for Refugees
The role of the UNHCR is to protect refugees – a person who is fleeing their country due to a well-founded fear of persecution due to race, religion, politics or other characteristics. The UNHCR’s main roles include protecting and advocating for refugees, administering real-time assistance for refugees and ensuring that refugees are assimilated into new countries. The UNHCR assist refugees in fleeing dangerous situations by providing aid or support and they encourage other nation-states to accept refugees. The UNHCR also supports stateless people in finding a nationality.