Myth 7: Our human rights are adequately protected already

The Myth: Due to our rigorous democratic system of representative democracy, robust common law and entrenched Constitution, fundamental human rights are already adequately protected.

The Reality:  Although Australia is one of the freest nations in the world, not all basic human rights are protected under Australian law, and human rights are sometimes infringed.  There is generally no requirement in Australia (outside the ACT and Victoria, which have human rights legislation) for public officials to act in accordance with human rights in making decisions which affect people's lives.  There are some relevant requirements in administrative law, but these normally regulate the procedure by which a decision is made, rather than the outcome of the decision itself. Without legal protection, certain groups are particularly vulnerable, such as the elderly, children, Indigenous people, prisoners or other detainees, refugees and asylum seekers, the homeless and the mentally ill.  They are at risk of being treated as problems to be dealt with, rather than as persons who deserve respect and protection of their human rights, when decisions are made that profoundly affect their lives (eg their health, their houses, or their liberty). 

Brough v Australia is an international case which demonstrates the deficiencies in Australian law in remedying human rights abuse.  Brough was a 16 year old Aboriginal boy with a mental disability.  He was arrested and detained in New South Wales in 1999. Amongst other abuses related to his conditions of detention (eg. periods of solitary confinement, constant artificial light), he was administered anti-psychotic medicine without his consent and without a proper assessment of whether the drug was appropriate. No effective domestic remedies were available to Brough.  His treatment was ultimately found to breach his human rights by the UN Human Rights Committee.

While infringements of human rights are fewer in Australia than in many other countries, it is important to ensure that redress is available for those infringements that do occur - through court proceedings and other mechanisms.   We also need comprehensive preventative measures such as government and parliamentary scrutiny, human rights training and action plans for government departments and agencies.

For a longer discussion of the arguments regarding the inadequacy of current protections, see this section of the Castan Centre's submission to the National Human Rights Consultation.