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Human Rights for Australia Human Rights Commission Monograph Series No. 1 Human Rights for Australia A survey of literature and developments, and a select and annotated bibliography of recent literature in Australia and abroad Alice Erh-Soon Tay Challis Professor of Jurisprudence in the University of Sydney Australian Government Publishing Service Canberra 1986 C Commonwealth of Australia 1986 ISBN for Monograph Series. 0 644 03677 X ISBN for this volume: 0 644 03432 7 Prepared with the assistance of Adrian Diethelm Andrew Frazer Eugene Kamenka Sheila McGregor David Mason Gabriel Moens Roma Sadurska Roger Wilkins Professor A. E-S. Tay, as author, takes responsibility for the opinions expressed in the Survey and other prefatory material. They do not necessarily reflect those of the Human Rights Commission or the Australian Government or the views of those who have assisted her in preparing the material. Published in the International Year of Peace Typeset by Graphicset Pty Ltd Mitcham Victoria Printed by Watson Ferguson and Co., Brisbane Foreword This is the first volume in the Human Rights Commission's Monograph Series. The Series is designed to include publications under the auspices of the Commission which have the status of a major research project and which, in the view of the Commission, are likely to form a continuing source of reference. It is intended that the Commission Monographs will cover a wide range of topics reflecting the Commission's interests and will contribute to better understanding and acceptance of human rights in Australia. At present there is no comprehensive survey of human rights literature which has an Australian focus. Nor is there a bibliography, including a graded set of reference items, that provides a satisfactory guide to the literature dealing with human rights of particular concern to the Commission. By bibliography is meant here both a comprehensive and annotated listing of works to which reference should be made in the study of human rights and the indexing framework which guides the reader or researcher to relevant material. This first Monograph is a significant and practical contribution to human rights research. It sets the discussion of human rights in a worldwide and Australian frame and it provides a means of locating relevant publications, particularly of Australian origin. The Commission hopes the Survey and the Bibliography will encourage reading and research, and will be glad to receive comments on either aspect of the Monograph. It intends later to publish revised editions of the Bibliography. The views that may be expressed or implied in the Monograph Series are not necessarily those of the Human Rights Commission and should not be identified with it or them. iii Contents Foreword Preface ix PART ONE: SURVEY OF LITERATURE AND DEVELOPMENTS 1. Human rights in the post-war world 3 2. Human rights and international law 10 3. United Nations: Australia's international obligations 13 4. Legislating for human rights in Australia: Common Law and constitutional problems 17 5. New Commonwealth initiatives 22 6. Human Rights Commission 25 7. A Bill of Rights? 31 8. Racial and sex discrimination laws 34 9. Aborigines: land rights and customary law 44 10. Mentally retarded and physically disabled persons 51 11. Rights of the child 60 12. International procedures for the protection of human rights 62 13. The philosophical bases of human rights 77 14. Education or indoctrination? 88 15. Principle of equality and equal treatment 89 16. Affirmative action 92 17. Right to life 98 18. Abortion 100 19. Euthanasia 106 20. Freedom of expression 109 21. Civil disobedience 112 PART TWO: THE BIBLIOGRAPHY 22. Guide to this bibliography and further research 117 23. Synoptic table of human rights 120 24. Bibliography 131 vi Contents Human rights — general 131 International instruments and agencies 134 United Nations Charter and Universal Declaration of Human Rights 137 United Nations Commission on Human Rights 141 United Nations Covenants and Conventions 142 International Labour Organization (ILO) and other specialised organisations 145 Regional instruments and agencies 146 American Convention on Human Rights 146 European Convention on Human Rights 147 European Court of Human Rights 150 European Commission on Human Rights 152 Committee of Ministers of the Council of Europe 153 European Community law 154 Domestic instruments and agencies 154 Ombudsman 157 United States Constitution 159 Bill of Rights debate 160 Australia 161 Canada 163 Great Britain 164 Non-government organisations (NG0s) 165 Philosophy of human rights 167 Philosophy of equality 173 Civil and political rights 176 Right to self-determination 180 Right to life 182 Abortion 184 Euthanasia 188 Definition of death 191 Capital punishment 192 Security of the person 193 Bodily integrity 194 Cruel and unusual punishment and torture 198 Habeas corpus and detention 200 Police powers 201 Slavery and forced labour 204 Terrorism 204 Contents vii. Privacy 205 Confidential information 210 Computers and data banks 211 Legal protection 213 Surveillance 215 Freedom of assembly 217 Freedom of association 220 Trade unions 221 Freedom of expression 221 Access to the media 225 Censorship 227 Contempt of court 229 Defamation and libel 231 Freedom of the press (media) 231 Obscenity 235 Freedom of information 237 Crown privilege 239 Freedom of information legislation 240 Official secrecy 243 Freedom of movement 244 Right to fair trial (due process) 245 Double jeopardy 253 Natural justice 253 Right to bail 254 Right to counsel 254 Right to silence 254 Freedom of religion, thought and conscience 255 Conscientious objection 258 Civil disobedience and symbolic speech 258 Discrimination 260 Racial discrimination (Aborigines, indigenous peoples and minorities) 269 Criminal process 278 Aboriginal customary law 280 Land rights 281 External affairs power 282 Voting 283 Incitement to racial hatred and prejudice 284 Employment 286 Education 286 Viii Contents Sex discrimination — women 228948 Employment Social services 297 Domestic violence 297 Discrimination — homosexuals 298 Affirmative action 299 Reverse discrimination 303 Preferential admission 305 Preferential hiring 307 Age discrimination 308 Religious discrimination 309 Rights of special groups 310 Children's rights 310 Child abuse and neglect 313 Children and the law 314 Health and medical care 318 Parental rights 319 Immigrants' and aliens' rights 320 Deportation and due process 324 Refugees 325 Prisoners' rights 325 Disabled persons' rights 329 Education, rehabilitation and training 330 Community care 332 Civil rights 332 Mentally retarded persons' rights 332 Medical care and therapy 335 Education, rehabilitation and training 335 Community care 337 Civil rights and legal safeguards 337 Social, economic and cultural rights 340 Multiculturalism 344 25. Table of international instruments 346 26. Table of statutes 348 27. Table of cases 350 Index (to Part One only) 352 Preface The strong commitment of successive Australian Governments to the promotion of human rights, exemplified in a growing body of legislation and in the creation and increased status and activity of the Human Rights Commission, has been accompanied by widespread public, political and academic discussion of the general principles and detailed problems of safeguarding and developing human rights. The discussion of principles and problems has been vigorous and international in scope; so have increasingly urgent demands by individuals and groups for protection of their rights. There is now planning of human rights curricula and the development of a human rights course for schools, a further extension of human rights courses in tertiary institutions and much legislative activity and popular and institutional involvement in the securing of human rights. An Australian Bill of Rights is in preparation. The Human Rights Commission itself is active in an increasing number of areas, conducting hearings and inquiries, receiving and investigating specific complaints, issuing reports tabled in Parliament, occasional papers, discussion papers, leaflets in a multiplicity of languages and a newsletter, and examining existing and proposed enactments. Knowledge has always been a necessary prerequisite for rational and effective action. The literature on human rights, in Australia and abroad, has grown enormously in recent years. It is both descriptive and evaluative; it summarises the situation (or situations in different countries and regimes); it assesses policies; it discusses very general principles. Increasingly in recent years, critical assessment arises from and remains intimately linked with detailed legislative enactments or proposals. One of the tasks specifically assigned to the Human Rights Commission was that of promoting understanding and acceptance of human rights in Australia and, to this end, of undertaking research and educational programmes. In consequence, in June 1982 the Commission asked me to prepare a select bibliography, with annotations, of recent literature on human rights published in Australia or especially relevant to Australia — for the human rights movement is by its very nature an international concern and part of an international discussion. The Bibliography was to be introduced by a Survey summarising and assessing that literature. The task, both demanding and rewarding, was much too great for one person to do alone. The Commission generously provided assistance, as did the Department of Jurisprudence in the University of Sydney and the History of Ideas
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