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legal studies 1/2 > 15 rights > Flashcards

15 rights Flashcards

1
Q

What is a right?

A

a moral or legal entitlement to have or do something

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2
Q

5 fundamental freedoms

A
  • freedom of speech
  • freedom of association
  • freedom of assembly
  • freedom of religion
  • freedom of movement
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3
Q

3 ways Australia protects rights

A
  • Statute law (Parliament passing legislation)
  • Common law (Courts creating precedents)
  • The Australian Constitution
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4
Q

Protection of rights through statute law

A
  • Protected by Commonwealth, state and territory legislation
  • Commonwealth Parliament can pass legislation that protects the rights of all Australians
  • State and Territory Parliaments can pass laws to protect residents’ rights within their jurisdiction
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5
Q

Issue with statutes

A

Parliament is the supreme law-making body
and can pass legislation to change or abrogate an
existing right protected by statute or common law

  • Federal Parliament can overrule the states
    and territories
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6
Q

The Victorian Charter of Human Rights and
Responsibilities

A
  • Australia does NOT have a National charter
  • The Charter of Human Rights and Responsibilities Act sets out the basic rights, freedoms and responsibilities of Victorian people
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7
Q

Strengths of statute law in protecting rights

A
  • Parliament can amend statutes to incorporate further rights, particularly as society changes
  • Statues are often detailed and precise and protect human rights specifically, rather than being implied
  • Rights contained in statutes are generally enforceable and need to be recognised by government organisations
  • Parliament has the ability to pass laws quickly if there is a need to promptly protect additional rights
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8
Q

Weaknesses of statute law in protecting rights

A
  • As the supreme law-making body, parliament can amend statutes, so rights may become limited or no longer exist
  • Parliament can include limitations or restrictions in statutes, so protected rights are NOT always absolute
  • Statutes do NOT always enable a person to be awarded any damages if their rights are breached
  • Rights protected in statute law are NOT as well protected as rights in a constitution, as constitutional rights can only be altered or removed with public approval
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9
Q

Protection of rights through common law

A
  • established by courts through precedents
  • judges protect rights when resolving disputes by interpreting the legislation that protects human rights
  • may establish common law rights; a legal principle (precedent) that protects the rights of Australian people
  • precedents must be followed by all lower courts in the same hierarchy in cases where the facts are similar
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10
Q

Declaring Acts to be invalid

A

Courts can protect the rights of Australian people by using their power to declare Acts are invalid if they are made outside their law-making power

  • ultra vires: ‘beyond the powers’; a law made beyond the powers of the parliament
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11
Q

Codification or abrogation of court decisions

A

Court judgements that establish human rights can be codified or abrogated by parliament

  • codify: to collect all laws on one topic together into a single statute
  • abrogate: to cancel or abolish a court-made law by passing an Act of Parliament
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12
Q

Strengths of common law in protecting rights

A
  • Courts are independent of parliament and can establish precedents free from political pressures
  • Courts can make decisions to establish rights in areas where parliament has not established rights
  • Courts are able to inter rights without needing to consider how those rights may need to be limited
  • Courts are able to highlight gaps in the law that protect rights, which may encourage parliament to change the law to protect rights further
  • Courts have been able to protect rights and parliament has not overly interfered with common law rights by abrogating them
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13
Q

Weaknesses of common law in protecting rights

A
  • Common law rights are not always easy to define or identify
  • Courts must wait for a case to come before them to be able to declare the existence of rights
  • Parliament, as the supreme law-making body, can abrogate common law rights
  • Courts are often reluctant to recognise certain rights, leaving it up to parliament to protect those rights
  • Judges are limited in applying the law to the case that is before them and cannot extend their decision to rights or issues that are not in dispute in the case
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14
Q

The Australian Constitution

A

The Commonwealth of Australia Constitution Act 1900 (UK) does not contain a bill of rights, but it protects their rights in three ways:

  • Express rights
  • Implied rights
  • Rights in the Constitution’s structure
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15
Q

Express rights

A

rights that are stated in the Australian Constitution - express rights are entrenched, meaning they can only be changed by referendum

  • Right to free interstate trade and commerce
  • Right to not be discriminated against by the Commonwealth based on state of residence
  • Right to receive ‘just terms’ when property is acquired by the Commonwealth
  • Right to a trial by jury for indictable Commonwealth offences
  • Right to a limited freedom of religion
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16
Q

Freedom of religion

A

Preventions of the Commonwealth Parliament to pass a law that:

  • establishes a state religion
  • imposes any religious observance
  • prohibited the free exercise of any religion
  • requires a religious test as a requirement for holding any Commonwealth office
17
Q

Implied rights

A

rights that are not expressly stated in the Australian Constitution but are considered to exist through interpretation by the High Court

18
Q

Rights in the Constitution’s structure

A

?

19
Q

Enforcement of constitutional rights

A

All rights protected by the Australian Constitution are fully enforceable by the High Court.

If a party believes the Cth Parliament has passed legislation that has infringed on their right, they can challenge the law in the High Court.

If the High Court declares legislation to be invalid, the parliament’s options are to:

  • amend the legislation to remove the unconstitutional provisions
  • try to change the Constitution by holding a referendum or public vote
20
Q

Strengths of the Australian Constitution in protecting rights

A
  • Express rights cannot be changed unless through a referendum
  • The implied freedom of political communication shows that rights can be implied by the High Court even though they may not be expressly written in the Constitution
  • All rights protected by the Constitution are fully enforceable through the High Court, and any statute found to breach those rights can be declared invalid
  • The High Court can interpret the meaning of the words and phrases in the Australian Constitution so it can keep pace with changes in community values and remain relevant over time
21
Q

Weaknesses of the Australian Constitution in protecting rights

A
  • Rights in the Constitution are difficult to change due to the referendum process. Therefore, rights may lag behind changes in community attitudes
  • Few express rights in the Constitution
  • It is expensive and time-consuming to take a case to the High Court to challenge a statute that breaches a right contained in the Constitution
  • The High Court cannot interpret the meaning of the Constitution and declare an infringement of rights until a case is brought before it
22
Q

signatory

A

a state or organisation that has signed an international treaty to demonstrate a nation’s intent to adopt the treaty and incorporate it into its law

23
Q

ratification

A

confirmation by a nation’s parliament of its approval of an international treaty signed by its government

24
Q

International treaties

A

a legally binding agreement between countries in which they undertake to follow obligations set out in the agreement and include them in their local laws

25
Q

International declaration

A

a non-binding agreement between countries that sets out the aspirations of the parties to the agreement

26
Q

The Universal Declaration of Human Rights (1948)

A

this declaration sets out the basic human rights that all nations, governments and people should strive to uphold and promote

27
Q

International Covenant on Civil and Political Rights (1980)

A
28
Q

Enforcement of international treaties

A

International Court of Justice (ICJ): established by the United Nations to resolve legal disputes between member nations

  • Limitation: nations aren’t compelled to attend the ICJ

Office of the High Commissioner for Human Rights (OHCHR): encourages nations to uphold their commitments under various human rights treaties by offering education and assistance to member nations

International human rights committees: many international human rights treaties include terms that establish committees that have the responsibility to monitor treaties, and those signatories involved

legal studies 1/2 (11 decks)

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