Chapter 5: What rights and fundamental freedoms should be protected in a Human Rights Act? 5.1 Introduction (a) Source of rights Australia is a party to seven of the major international human rights treaties: • International Convention on the Elimination of All Forms of Racial Discrimination (CERD) 1965 • International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 • International Covenant on Civil and Political Rights (ICCPR) 1966 • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979 • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984 • Convention on the Rights of the Child (CRC) 1989 • Convention on the Rights of Persons with Disabilities (CRPD) 2008 The two core treaties, adopted by the UN General Assembly in 1966, are the ICCPR and ICESCR. Together with the Universal Declaration of Human Rights (UDHR) these instruments are regarded as the ‘International Bill of Rights’. The ICCPR protects a broad range of civil and political rights. Many aim to ensure that all people are able to participate in public and political affairs – for example, the right to vote, and freedom of speech, association and assembly. Other rights aim to protect people’s physical liberty and safety – for example, the right to life and to be free from torture, as well as freedom of movement, freedom from arbitrary detention, and the right to a fair trial. ICESCR sets out the basic necessities that people need to lead a healthy and dignified life – for example, the right to adequate housing, food and clothing and the right to adequate health care, as well as equitable access to education. Other rights in ICESCR aim to ensure that all people can develop to their full potential and have access to economic opportunities – for example, the right to work and to fair and safe conditions at work. All of the human rights treaties require Australia to take concrete measures, including changing or adopting laws, to implement the terms of the treaty domestically.1 In Australia, a treaty is not binding domestically unless it is incorporated through domestic legislation.2 Australia has also expressed support for a number of international declarations relating to human rights. Unlike an international treaty, a declaration does not create binding legal obligations. However, declarations do carry significant political and moral weight because they are adopted through agreement by the international community. They therefore act as key standard-setting documents, or as a codification of existing standards. Some declarations contain customary international law, namely parts or all of it have become widely adopted through international practice and reach the status of binding international law. A particularly important international declaration for the Australian context is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly in 2007, and supported by Australia in 2009.3 The declaration does not ‘create’ new rights. Rather, it elaborates existing human rights as they apply to Indigenous peoples. FREE AND EQUAL A Human Rights Act for Australia 2022 105