After the High Court judgment in the Bob Brown case, there was pressure on the NSW government to consider repealing its law, because its similarity to the invalidated Tasmanian law rendered it also likely to be invalid on the ground of the implied freedom of political communication. However, in June a magistrate dismissed those charges. In spite of this, the NSW government seems determined to press on. In June it announced new provisions that would allow it to ban gatherings on public land.
He critiqued, among other things, a chilling effect on civil society, funding cuts, gagging clauses in funding agreements, secrecy laws and undermining of the Australian Human Rights Commission.
There is considerable evidence that Australia is not abiding by its obligations under international law in several policy areas. Nevertheless, it is also important to recognise that human rights are not absolute.
How do we balance competing rights, or the exercise of rights in ways that can harm others? For example, does freedom of expression include the right to say anything a person wants, or do minorities at whom harmful speech is targeted have the right to live a life free from discrimination and fear, and in human dignity?
All human rights carry with them commensurate responsibilities; you cannot understand rights without also understanding the responsibilities they impose on rightsholders to others who possess the same rights they do, and whose rights they have a duty not to infringe.
Of course, some people would argue that speech does not harm others, it is just the externalisation of thought, and it does not have the capacity to harm in material ways. But we do things with our words all the time; we give permission, we judge, we allow, we condemn, we deny, we extol, we praise, and so on.
The things we do with words can have legally binding impacts, such as the act of getting married. So it does not seem feasible to argue that speech is simply the externalisation of thought. And if we can do things with our words, then it seems logical that we can do both good and bad things with our words. This means that words are at least capable of harm. The Ethnic Disability Advocacy Centre noted: As a consequence of the Migration Act being exempted from the Disability Discrimination Act , refugees and migrants with disability and their families are not offered the same protection from discrimination that apply to other areas of Australian law.
Historically disabilities have been considered with health requirements to protect the community from transmittable diseases. It is time to break this nexus. Health regulations should not single out people with disability and refuse them visas or place different requirements on them.
Clearly it is time to ensure that immigration law conforms to Australia's obligations under international conventions including the Disability Convention. We need to look at the way society treats a person with disability including under its visa requirements to maintain their legitimate human rights.
Naively, we did not think that her blindness could be an obstacle to her application, as Australia had enacted the Disability Discrimination Act in The Committee sought views on the impact of removing the migration exemption from the Disability Discrimination Act Cth.
Mr Brandon Ah Tong Pereira, Vision Australia, commented that: Let us be absolutely clear: to discriminate in immigration solely on the basis of disability contravenes the moral standards of fairness that underpin international human rights norms and, by admission, is at odds with international law. Dr Rhonda Galbally of the National People with Disabilities and Carer Council responded to questions as to whether the removal of the exemption would distort demand for places in Australia.
She noted that a more liberal approach in the past had not produced that result: We have gradually seen a change over time where the interpretations of the law have become different over the last two decades.
We have never seen a flood to Australia. We have seen genuine families applying to come here or people in refugee situations where they happen to have a family member with a disability or who declare, and there will be families who do not declare them as things have become harsher and harsher… Mrs Catherine McAlpine of Down Syndrome Victoria suggested that the removal of the DDA would simplify migration processes: The Disability Discrimination Act just means that people cannot be discriminated against because of their disability, so all the other criteria apply.
You asked the question: what if it was a family reunion? It is the same thing. We are not just talking about skilled migrants. We are saying that if it is a family reunion and you meet every other requirement, then there should be no discrimination on disability. If it is a refugee and you meet the refugee requirements, you should not be discriminated against.
So to a certain extent it is just very simple: if the disability act applies, you cannot discriminate on those grounds. Professor Jan Gothard agreed, observing that the DDA makes clear the distinction between discriminating against people with a disability, irrespective of their skills or assets, and population policy. However, a key issue for the Committee is clarity in the application of legislation and its regulation.
This provides transparency and certainty for applicants and also avoids potentially time consuming and costly litigation as a means of determining outcomes. Professors Mary Crock and Ron McCallum AO, respectively experts in migration and law, did not see that a more generous approach would not cause an appreciable increase in litigation.
Professor Crock stated: There will be litigation. Whenever there is a rule change, people litigate to see what the boundaries of the rules are. It is inevitable. There is litigation at the moment that goes on in this area. It is not entirely settled. So I do not think that it is going to open the floodgates to litigation. It is, on the other hand, going to take a lot of pressure off the minister.
That is what it is going to do and it is better to have litigation where you can actually see how the rules are operating and it is transparent than to have everything happening behind a closed door. Professor Ron McCallum concluded: I think the main group that would benefit are families that have a disabled member.
We are not going to see a flood of disabled people from around the world applying as independent migrants without any job prospects or family members here.
At hearings in Sydney, Mr Graeme Innes, Disability Discrimination and Race Discrimination Commissioner, commented on a further impact of removing the exemption: I think that if the exemption were completely removed it would mean that the government was, if you like, giving away its capacity to make decisions as to who is granted visas to come to Australia because, if the act were to apply without any restriction, such grants would need to be on a non-discriminatory basis unless the government was able to demonstrate unjustifiable hardship in making such a decision.
In this report the Committee has set out a template for reform of the current migration arrangements which will provide a more appropriate and just approach for the migration assessment for people with a disability across the visa streams. The Committee believes this model for reform will also better reflect our international obligations and domestic policy on disability.
The Committee notes that removal of the exemption would not deactivate provisions in the DDA which allow for discretion to protect against infectious disease: This Part does not render it unlawful for a person to discriminate against another person on the ground of the other person's disability if: the person's disability is an infectious disease; and the discrimination is reasonably necessary to protect public health.
This would suggest that even if the migration exemption was removed, Australia retains the right to continue to exercise discretion in considering health conditions that might pose a threat to the community. The Committee considers that improved domestic administration of migration assessment procedure is a more appropriate and just means to proceed. Australia was reviewed for the second time under the UPR on 9 November The AHRC also made a submission. In its Report it stated that Australia has accepted or accepted-in-part of recommendations from the First UPR, and that it has implemented in whole or part, or is progressing implementation of recommendations.
Holding a referendum to recognise Aboriginal and Torres Straight Islanders in the next term of Parliament, including a national consultation process. Improving the way the criminal justice system treats people with cognitive disability who are unfit to plead or plead not guilty due to their impairment.
Further steps to strengthen advocacy for the abolition of the death penalty, which will be informed by the outcomes of a Parliamentary Inquiry. International Human Rights Law. It affirms fundamental human rights, but is not a binding treaty. Article 18 states:. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Religious freedom is again located in Article 18, which states in full:. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
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