Politics & Law Human Rights Investigation Essay:

Assess the importance of international covenants, protocols and treaties in protecting human rights in Australia in relation to other methods of protection.

Introduction:

Body Paragraph 1 – International Law & Human Rights:

Body Paragraph 3 – Statutory Law & Human Rights:

Body Paragraph 4 – Common Law & Human Rights:

Conclusion:

Human rights, recognised as universal, inalienable, interdependent, and indivisible, are the core freedoms and entitlements inherent to every individual. International covenants, protocols and treaties — such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) — embody these principles by binding states to respect and protect human dignity. Yet, in Australia, the protection of human rights is fragmented. The dualist legal system ensures that while international law establishes important standards, these rights do not gain force domestically unless incorporated through parliamentary legislation. Alongside international law, rights are protected through the Constitution, statutory enactments, and common law principles. The relative importance of these mechanisms varies: international covenants provide influential benchmarks and catalyse reform, but constitutional entrenchment offers stronger security, statutory law gives the most comprehensive practical protections, and common law supplies essential but vulnerable safeguards.

International covenants, protocols and treaties are important in shaping Australia’s rights framework, as they establish global standards and often serve as catalysts for domestic reform. Treaties such as the ICCPR (ratified by Australia in 1980) and the Convention on the Rights of the Child (CRC) oblige Australia to uphold a wide range of civil, political, and social rights. Yet under the dualist system, ratification alone does not create enforceable rights; Parliament must legislate under s 51(xxix) of the Constitution (the external affairs power) to incorporate them into domestic law. For instance, the Racial Discrimination Act 1975 (Cth) was enacted to implement the Convention on the Elimination of All Forms of Racial Discrimination (CERD). Similarly, Toonen v Australia (1994) highlighted the persuasive role of international law, where the UN Human Rights Committee found Tasmania’s criminalisation of homosexuality inconsistent with the ICCPR, prompting the Commonwealth to pass the Human Rights (Sexual Conduct) Act 1994. Despite these successes, international law is limited by weak enforceability: UN treaty body findings are not binding, and governments have at times disregarded international criticism. Australia’s offshore detention practices on Manus Island and Nauru, condemned by the UN as breaching the Refugee Convention (1951), exemplify the fragility of international law’s influence. International covenants therefore serve as normative benchmarks and pressure points for reform, but they lack the direct enforceability of domestic protections.

Compared to international law, the Constitution offers a stronger but narrower form of rights protection. Only five express rights exist: voting (s 41, now spent), acquisition of property on just terms (s 51(xxxi)), trial by jury (s 80), freedom of religion (s 116), and non-discrimination on the basis of state residence (s 117). Additionally, implied rights arise from constitutional principles. In Roach v Electoral Commissioner (2007), the High Court identified an implied right to vote under ss 7 and 24, striking down a blanket ban on prisoner voting, while Australian Capital Television v Commonwealth (1992) recognised an implied freedom of political communication. These decisions demonstrate that constitutional rights, though limited in number, are entrenched and judicially enforceable — Parliament cannot override them by ordinary legislation. However, their scope has often been interpreted restrictively. For example, in R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928), the High Court held that Parliament itself could determine which offences were “indictable” for the purposes of s 80, significantly narrowing the right to trial by jury. The Constitution thus provides secure protections but within a confined and judicially constrained framework.

Statutory law represents the most comprehensive method of rights protection in Australia, with legislation frequently implementing international obligations. Statutes such as the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), and Disability Discrimination Act 1992 (Cth) incorporate CERD, CEDAW and CRPD respectively, ensuring enforceable rights across Australian society. Their practical impact is evident: the Toonen case directly triggered legislative reform, while more recently, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) reflected evolving social views on equality. Statutory rights also rely on institutions such as the Australian Human Rights Commission, although its powers were curtailed in Brandy v Human Rights and Equal Opportunity Commission (1995), where the High Court limited the Commission to making recommendations rather than binding determinations. Importantly, statutes are highly adaptable to social change, but their fragility is evident in the 2007 Northern Territory Intervention, where the Racial Discrimination Act was suspended to allow measures targeting Indigenous communities. Statutory law therefore provides wide-ranging and practical rights protection, yet its strength is contingent on political will and parliamentary priorities, leaving minorities vulnerable when rights clash with government agendas.

Common law rights, while less comprehensive, play a crucial role in filling the gaps left by constitutional and statutory protections. They include fundamental principles such as the presumption of innocence, the right to silence, and the principle of legality. A key example is Dietrich v The Queen (1992), where the High Court ruled that a fair trial required the provision of legal representation for indigent defendants in serious criminal matters, a decision aligning with international fair trial standards in the ICCPR. These protections demonstrate that courts can uphold human rights even without explicit statutory authority. However, common law rights are inherently vulnerable because Parliament can override them at any time, as seen in anti-terrorism laws permitting detention without charge and limiting the presumption of innocence. Moreover, common law protections are reactive, available only when disputes reach the courts, rather than serving as proactive guarantees. While common law provides practical safeguards in individual cases and aligns judicial practice with international norms, it remains the weakest and most easily overridden method of rights protection compared to international, statutory, or constitutional frameworks.

In assessing the importance of international covenants, protocols and treaties in protecting human rights in Australia, it is clear that they play a foundational and catalytic role: they provide benchmarks, influence statutes, and shape jurisprudence. However, their effectiveness is constrained by Australia’s dualist system and the political nature of compliance. Compared with constitutional rights, international law is weaker in enforceability but broader in scope. Compared with statutory rights, it is less practical but underpins many legislative protections. Compared with common law, it is more aspirational but less enforceable. Ultimately, Australia’s fragmented system means that no single mechanism suffices. International covenants are important in setting standards and pressuring reform, but the protection of human rights in Australia rests more heavily on constitutional interpretation, statutory enactments, and judicial principles. As contemporary global events — from sanctions on Russia to Palestine’s statehood recognition — demonstrate, international law’s symbolic and normative influence remains significant, but its practical power depends on domestic incorporation.

International covenants, protocols & treaties play a significant role in the protection of human rights in Australia. Evaluate this claim with reference to the status of international covenants, protocols and treaties in protecting human rights.

Introduction:

Body Paragraph 1 – Constitutional Law & Human Rights:

Body Paragraph 2 – Statutory Law & Human Rights:

Body Paragraph 3 – Common Law & Human Rights:

Body Paragraph 4 – Charters of Rights & Human Rights:

Conclusion:

International covenants, protocols and treaties are central instruments of international law designed to safeguard human dignity and equality across states. Australia has ratified key treaties, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and CEDAW. Yet under Australia’s dualist legal system, treaties acquire enforceable status only once implemented through domestic legislation. The extent to which international law significantly protects human rights in Australia must therefore be measured against the strength of domestic frameworks: constitutional law, statutory enactments, common law, and state or territory human rights charters. While international covenants establish normative standards and strongly shape statutory and institutional protections, their significance lies more in influence and guidance than in direct enforceability.

The Constitution, as the supreme law, offers entrenched but limited rights protection, and the role of international covenants within this framework is marginal. Five express rights (ss 41, 51(xxxi), 80, 116, 117) exist alongside several implied rights, including the freedom of political communication (Australian Capital Television v Commonwealth (1992)) and the right to vote (Roach v Electoral Commissioner (2007)). In Mabo v Queensland (No. 2) (1992), Justice Brennan acknowledged that international human rights norms could guide the evolution of common law, signalling some influence of international law on constitutional reasoning. Yet the High Court has resisted relying directly on treaties. In Minister for Immigration v Teoh (1995), the Court suggested ratified treaties could create “legitimate expectations” in administrative decision-making, but Parliament swiftly rejected this interpretation. Thus, while constitutional rights are entrenched and judicially enforceable, they are rarely shaped by international covenants. The Constitution therefore provides strong but narrowly confined protection, with international law playing only an indirect and limited role in its operation.

Statutory law represents the most effective vehicle for translating international covenants into enforceable rights. Through the external affairs power in s 51(xxix) of the Constitution, Parliament has enacted major rights-protecting statutes. The Racial Discrimination Act 1975 (Cth), implementing CERD, prohibits racial discrimination; the Sex Discrimination Act 1984 (Cth) reflects CEDAW’s commitments to gender equality; and the Disability Discrimination Act 1992 (Cth) incorporates CRPD standards. These Acts demonstrate how international treaties underpin domestic protections. Their significance is evident in cases such as Toonen v Australia (1994), where the UNHRC’s finding under the ICCPR compelled the Commonwealth to legislate the Human Rights (Sexual Conduct) Act 1994, invalidating discriminatory Tasmanian laws. Statutes are therefore the clearest avenue by which international law shapes rights in Australia. However, they remain vulnerable to political override, as seen in the 2007 Northern Territory Intervention, which suspended the Racial Discrimination Act. While statutory law is directly enforceable and comprehensive, its fragility demonstrates that international law’s role, though significant, is heavily dependent on parliamentary will.

Common law rights, though judge-made and less comprehensive, remain important in bridging gaps left by statutory and constitutional protections. Rights such as the presumption of innocence, the right to silence, and the principle of legality underpin the rule of law. International norms often inform their development: Mabo (No. 2) reflected international principles against racial discrimination, while Dietrich v The Queen (1992) recognised the right to legal representation in serious trials, aligning with ICCPR fair trial standards. Despite this alignment, common law protections are inherently insecure, as Parliament can override them through legislation — exemplified by counter-terror laws enabling detention without charge and limiting the presumption of innocence. The principle of legality mitigates this by requiring clear parliamentary intent before curtailing rights, but it is only a partial safeguard. Consequently, while international law may shape common law values, its influence remains indirect, and statutory incorporation remains the stronger path for enforcing treaty obligations.

Although Australia lacks a federal bill of rights, state and territory charters provide a statutory model for rights protection. The Charter of Human Rights and Responsibilities Act 2006 (Vic), the Human Rights Act 2004 (ACT), and the Human Rights Act 2019 (Qld) are based heavily on the ICCPR, demonstrating international law’s direct influence. These charters require statements of compatibility for new legislation, oblige public authorities to act consistently with rights, and empower courts to issue declarations of incompatibility. Cases such as Castles v Secretary to the Department of Justice (Vic), where a prisoner’s access to IVF was upheld under the Victorian Charter, illustrate their significance. While these charters cannot strike down laws, they embed international standards into domestic governance and cultivate a rights-aware culture. Their existence underscores the significant role of international covenants in shaping domestic frameworks, albeit with limits imposed by parliamentary sovereignty.

International covenants, protocols and treaties have a clear and continuing significance in Australia’s human rights landscape. They establish global standards, pressure governments to reform, and underpin key statutory enactments and charters. Yet, their practical effect is indirect: the dualist system ensures that international law only acquires enforceable power when mediated through parliamentary or judicial processes. Compared with constitutional protections, covenants are less secure but broader in scope; compared with statutory law, they are foundational but dependent; compared with common law, they carry greater normative weight but lack enforceability. Ultimately, the enduring importance of international law lies not in its immediate enforceability, but in its role as a catalyst and benchmark for domestic human rights protections, shaping Australia’s evolving rights culture while highlighting the need for stronger, more consistent national safeguards.

Assess the importance of international covenants, protocols and treaties in protecting human rights in Australia in relation to other methods of protection.

Scaffold:

Introduction:

Body Paragraph 1 – International Law & Human Rights:

Body Paragraph 3 – Statutory Law & Human Rights:

Body Paragraph 4 – Common Law & Human Rights:

Conclusion:

International covenants, protocols & treaties play a significant role in the protection of human rights in Australia. Evaluate this claim with reference to the status of international covenants, protocols and treaties in protecting human rights.

Scaffold:

Introduction:

Body Paragraph 1 – Constitutional Law & Human Rights:

Body Paragraph 2 – Statutory Law & Human Rights:

Body Paragraph 3 – Common Law & Human Rights:

Body Paragraph 4 – Charters of Rights & Human Rights:

Conclusion: