Table of Contents
The Universal Declaration of Human Rights (UDHR) establishes universal fundamental rights and liberties. The Declaration was approved by the United Nations General Assembly on December 10, 1948. Australia was a key contributor to the creation of the UDHR. The Universal Declaration is the first time that nations have accepted the entire assertion of universal human rights based on past insights of the previous World Wars (Haas, 2013).
Australia was a founding participant of the United Nations and played a pivotal role in the 1945 talks for the UN Charter, which were dominated by the United States. Australia was one of eight nations that participated to the establishment of the UDHR. This was largely owing to the efforts of Dr Herbert Vere Evatt, the head of Australia’s United Nations delegation. During the 1948 General Assembly of the UN, Dr. HV Evatt was chosen as its President. In the same year, he presided over the signing of the UDHR (Brohier, 2018). There is no widely agreed-upon concept of human rights. However, according to Haas, there is a broad consensus that human rights describe the notion that every human being should be allowed to enjoy a good quality of life with the fewest feasible constraints (AHRC, 2021). Furthermore, people should not be subjected to perfectly acceptable conduct, should have the freedom to fulfil social, economic, and cultural demands, and should be equally represented in the eyes of the law. With any of these criteria in mind, the purpose of this article is to examine the method wherein the UDHR has been incorporated into Austrian law, as well as to identify vulnerable groups and determine whether or not they are adequately protected.
Australia seems to be the only Western democracy and that the only common law nation in the world that has not enshrined or enacted any sort of bill or charter of rights. As Emeritus Professor Gillian Triggs points out, this has resulted in Australia becoming increasingly distant from the legal requirements as well as the jurisprudence of a nation in which we try comparing ourselves – Canada, the United Kingdom, the United States, France, Germany, as well as New Zealand – a separation and failing to comply with international human rights law that over 44 nations have condemned in the Human Rights Council (Triggs, 2018).
The UDHR was approved by the UN General Assembly, and Australia voted in support. It recognises fundamental human rights, but it is not a legally enforceable document in Australia (Parliament of Australia, 2021). Article 18 states that every person has the right to freedom of thought, sense of morality, religion, or even freedom to transform one’s religion or beliefs and freedom to express one’s religion and faith in teaching, practise worship, and adherence, either alone or in communion with others and publicly or privately. Additionally, Article 2 ensures that everyone has the right to the rights and freedoms guaranteed by the UDHR “without regard for any discrimination whatsoever,” as well as on the basis of religion (Mowbray, 2016).
The UDHR made a significant change by asserting that all humans are equal in terms of freedom and dignity, regardless of race, or creed, or religion. A worldwide alliance has given priority to people above power politics for the first time in history. The right to asylum, the right to live free from torture, the right to free speech, and educational opportunities are among the UDHR’s 30 fundamental freedoms and rights. It comprises both civil and political rights, including the right to life, liberty, speech freedom, and privacy (Amnesty, 2017). It also encompasses economic, social, cultural, and social rights as well as social security, education and health rights. Some of them are as follows:
Article 1: Each of us is born free. Each of us has unique thoughts and views, and there should be fair and equal treatment.
Article 3: All are entitled to life, freedom and security.
Article 5: There is no right to torture others or to subject them to inhuman or degrading treatment.
Article 6: People should enjoy the same degree of legal protection regardless of who we are or where we are on the globe.
Article 7: The law is universal and must treat everyone equally (Amnesty, 2017).
Article 8: Everyone should have the right to a lawyer representation if they are subjected to unjust treatment.
Article 9: There should be no arrest, imprisonment, or deportation from the nation unless there is a compelling basis to do so.
Article 10: Anyone accused of crimes has the right to a fair and open trial, and those who conduct the trial should be unbiased and untouched by other factors.
Article 11: Everyone accused of a crime has the right to be deemed blameless until their guilt can be shown beyond a reasonable doubt.
Article 13: In the nation, people have every freedom to travel freely and, if we desire, to visit and leave other states.
Article 14: If we are in danger of violence, people are entitled to seek protection in another nation.
Article 26: All have the right to education. Primary education should be provided for free. Everyone should be allowed to pursue their education to the extent that they choose. At school, our skills should be developed, and an awareness and respect for the rights of everyone should be taught. Additionally, we should be educated to get along with people regardless of their ethnic origin, religion, or place of origin. Regardless of what sort of school we attend, our parent have always had the freedom to choose for us (McCowan, 2013).
Article 30: No government, organisation, or person shall behave in a manner that would jeopardise the UDHR’ rights and freedoms.
The Law Council believes that the impediments to human rights protection can only be grasped in the context of specific issues of interest. Although there is a great deal of fun to practically celebrate Australian democracy, the Law Council is worried that human rights violations are still “routinely common” in Australia, especially by those held by disadvantaged or marginalised groups (Williams & Reynolds, 2017). While providing an exhaustive overview is well beyond the scope of this article, pertinent instances include those addressed in the following paragraphs. These indicators together indicate that a chasm exists between both the promise and execution of HR in Australia. Numerous examples highlighted highlight the possibility for human rights legislation to aid in reducing these ‘implementation gaps’ by converting international human rights commitments into national law and practice.
Aboriginal and Torres Strait Islanders had a multiplicity and severe disadvantage due to a background of dispossession as well as a legacy of institutionalised discrimination in Australia. Williams and Reynolds point out: Historically, it is astonishing how many indigenous people throughout this nation had been denied their fundamental rights. They were denied voting, parted from their children, instructed where to live even looted their salaries, to mention a few (Williams & Reynolds, 2017).
The above disadvantage is presently reflected in adverse health outcomes (such as shorter life expectancy, high numbers of mental illness, cognitive impairment or physical disabilities) (Parliament of Australia, 2021); low socio-economic consequences and massive unemployment rates; significantly higher rates of family violence and rising child protection contacts. Lower education performance and limited literacy; and overall discretionary experience (Productivity Commission, 2016).
The substantial difference in the number of Aboriginal and Torres Strait Islander prisons is a significant area in which injustice is visible in Australia.
In 2017 the United Nations Special Rapporteur on the Rights of Indigenous Peoples presented Australia’s rate of indigenous prison terms as “major concerns about human rights” and criticised Australia’s regulations for having an unequal impact on indigenous people, like Northern Territory digital laws on arrests (UNHR, 2021). Simultaneously, various legislation and policies, in particular, were also recognised as pushing up the Indigenous Incarceration Rate, such as those relating to bail, parole, default penalties, driving crime, compulsory conviction, public order crimes and enhanced police powers (Corrigan, 2018).
The Law Council argues that any discussion in Australia on the issue of human rights must begin with over-incarceration of its people who, from the beginning, undercut Australians’ primary status as ‘free and equal.’ It addresses doubts about whether a country wherein the over-incarceration incidence has exponentially increased can be described as having a well-functioning judicial system in order to resolve this problem, urgent and comprehensive laws, policies and programmes (Fletcher, 2012). Human rights legislation might also provide light on improved results. For instance, the ACT Act has various clauses relating to non-custodial remedies and the dismissal from the system of criminal justice. The ACT Act was used by an ACT magistrate in favour of a motion for a conviction of an offender, aimed at including the indigenous community in the conviction process and reducing the number of persons in touch with the criminal justice system.
Children have been abused and mistreated in juvenile prison throughout several Australian jurisdictions. Several investigations showed that there was an unacceptable and ‘illegal’ use of juvenile detention practises like brutality, long periods of isolation or solitary confinement, as well as inappropriate use of limitations and force, like the use of mechanical and perhaps other types of restraint, like hog-ties. The NT Royal Commission has stated that “shocking and systemically failures that are recognised and neglected at the highest level have happened for many years (Royal Commission, 2017).”
Whilst admitting that the Government has made attempts to address these issues, the Law Council is troubled that these are fragmented and that more is needed. Australia is only required to arrest, detain, or jail a child as a last option under the CRC (Zermatten, 2017).
After a long civil conflict with Sri Lanka in 2009, an enormous number of Tamils emigrated outside the country. According to the UNHCR, there were over a hundred and forty thousand Tamils relocated by the UN High Commissioner for Refugees from 65 countries in half of 2012. About seventeen hundreds of them travelled by water to Australia for sanctuary for refugees (Doherty, 2012). Some had been in transit countries such as Indonesia/Malaysia for some time. They were also recognised as refugees by UNHCR, but no permanent protection or somewhere else was offered. On arrival in Australia, they were obligatorily held as offshore entry individuals and then processed on the basis of a discretionary procedure for determining offshore conditions, where fewer procedural rights were granted (Australian Government, 2012). Finally, they were recognised as refugees by the DIAC (Department of Immigration and Citizenship).
It is also gravely concerned that, after substantial budget cutbacks, only a tiny proportion of asylum seekers in Australia get government-funded legal help, with the majority relying on pro bono services (Australian Government, 2012). For refugees and asylum seekers, legal help is essential. Immigration request forms may be complicated, particularly for those with minimal knowledge of English or legal language. This is compounded by a lack of access to interpreters (Law Council, 2021).
The UDHR does come with a noble cause, and Australia, being a signatory, does do its part in promising to uphold human rights. However, the sheer absence of a codified law that adopts what the principles of UDHR state, coupled with the manner in which the fundamental human rights of the different vulnerable groups has been breached, shows the superficial nature of Australia’s adherence to UDHR. Moreover, UDHR being an international treaty, which is not binding in Australia, or any other nation, till the time it is ratified in the domestic laws, continues to highlight only what has to be done instead of it being done.
Thus, based on the above debate, it can be inferred that a nation’s adherence to the UDHR principles of human rights is critical. Human Rights are very important for both citizens and nations. The UDHR has attempted to safeguard it in every circumstance, but Australia has failed to establish such effective policies and actions that would contribute to the fulfilment of human rights values for people. It is recommended that a federal human rights statute be enacted. Federal anti-discrimination law should be comprehensive and consolidated, preserving and strengthening current safeguards and enhancing the regime’s capacity to achieve substantive equality.
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