Human Rights in Australia and Argentina: a clear rights framework

By Alexandra Hurley

The recent budget is a good example of why Australia would benefit greatly from a more defined concept of human rights. The move towards privatising student loans and deregulating university fees shows the dubious access to education. The ambiguous place of human rights protections in place this country has also become evident.

Australia remains the only democratic nation without a national charter or bill of human rights. Our system, in comparison to Argentina, is ad hoc, without a clear and unified method of redress. Although Australia does have certain civil rights enshrined within the constitution, they are minimal and administrative in nature. Only five rights are specified; the right to vote (Section 41), protection against acquisition of property on unjust terms (Section 51 (xxxi)), the right to a trial by jury (Section 80), freedom of religion (Section 116) and prohibition of discrimination on the basis of state of residency (Section 117).

At the start of this year I was based in Buenos Aires, Argentina for two months, undertaking an internship in a human rights law firm, ACIJ. The differences in how the system of human rights manifest in both Argentina and Australia are striking. Although Argentina is a country with considerable economic structural issues, their human rights system is much more established than that of Australia. It is embarrassing.

In Argentina, there are over 30 human rights that are clearly incorporated into domestic legislation, alongside their constitution. These include a right to education, culture and a mental and physical health care. This is reinforced with a minister for human rights, along with a specific ministry for Justice and Human Rights.

In Australia, rights need to be clearly established, not merely accepted as existing within the national sentiment or legal culture. The new changes presented by the Abbott Government in the 2014–2015 budget jeopardise lower income earners access to both health and education. The move towards a privatisation of student loans and deregulation of university fees seems to overly commercialise the higher education system. These charges risk irrevocably making access to these basic services dependent on an individual’s income.

If rights are nebulous, they are less likely to receive legal recognition and redress. The lack of legislative definition of human rights means they are unclear, and not easily articulated or defended. It is not efficient to have a system that is so heavily reliant on the courts to clarify such fundamental public issues. The High Court in Al-Kateb v Goodwin was asked to determine if, due to flaws in migration legislation, a man without a criminal record could be detained indefinitely. The court was hesitant to determine such issues and restricted in their power to do so by overbearing legislation. The court lamented the “tragic” position of Mr. Al-Kateb, but highlighted that it is not within the judiciary’s power to determine “whether the course taken by Parliament is unjust or contrary to basic human rights.”

In comparison, Argentina’s general awareness and interest in human rights issues is impressive. The general population seems to have a practical knowledge of the importance of having an effective human rights framework and keeping the government in check. This is a valuable lesson learned after the total disintegration of order and human rights during the “Dirty War”.  They even have a public forum where politicians and the media are “checked” for logic and truth behind their statements.

The health care system is free in Argentina, even for foreigners. The education system is also free to access, up until your first undergraduate degree. While in Australia, the price of the average HECS debt continues to rise and postgraduate education costs anywhere between the equivalent of a luxury car or a one bedroom apartment. With the privatisation of HECS debts also being discussed, education seems to be treated more as an economic industry, rather than a human right. This comparison seems absurd when compared to the taxation rates applicable in both countries. Argentina’s top two tax thresholds are subject to between a 27–35 per cent taxation rate, while Australia’s are subject to a rate of 37–45 per cent. With less revenue, and in a much less stable economic environment, the Argentinean Government appears to give much more value to basic human rights.

Argentina does have its human rights issues, but they appear to be linked to overpopulation and the economic situation rather than a lack of intention or consideration. The urban slums in Buenos Aires, the “villas”, are a large and permanent issue, and the lack of support for people with disabilities is apparent.

In Argentina, the importance of the development and application of human rights seems to have permeated after experiencing the horrific disintegration of civil liberties during the 1970s and the “Dirty War”. Will Australia have to live through disappearances, military rule and disorder before we learn the importance of incorporating a clear human rights framework?

Alexandra Hurley is passionate about human rights, international law and migration. Her passion developed after she volunteered for five years with Sudanese Australian Integrated Learning. She has lived in Spain and Ecuador and is a student of Arts (International Studies)/ Law at Deakin University.

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