2.4 g) The role of a Charter of Rights (Arguments for and Against) Flashcards
How many international treaties has Australia signed that support HR?
5
When was the 1st attempt to incorporate some basic rights into the Constitution?
- The referendum was defeated, as it gained only 45.39% of the vote
Is Australia the only Western democracy that doesn’t have a Charter of Rights?
Yes!!!
What did AG Lionel Murphy do in 1973?
Attempted to introduce a HR Bill 1973 that would’ve implemented the ICCPR into Aust law by protecting a no. rights. It failed though.
What did AG Lionel Murphy argue with regard to his failed HR Bill 1973?
“although we believe these rights to be basic to our democratic society, they now receive remarkably little protection in Australia.”
What did AG Gareth Evans do in 1985?
Proposed a statutory charter of rights.
How far did AG Gareth Evans’ Proposed statutory charter of rights get in 1985?
it got through cabinet but wasn’t introduced to parliament
what was passed in the lower house but then withdrawn?
A watered down version of AG Gareth Evans’ proposal: Australian HR Bill 1985
What also happened in 1985?
Hawke Labor gov set up a ‘Constitutional Commission’ to investigate and recommend changes to the Aust. Const.
what was proposed in 1985?
a new chapter on rights and freedoms, however this referendum failed
What did George Williams (Law Professor at UNSW) argue that a charter of rights which has worked successfully in Britain, NZ, ACT and Victoria would do?
- -> Be changed over time w. changing community attitudes
- -> Require more attention be given to rights of all Aust. people
What else did George Williams (Law Professor at UNSW) argue that a charter of rights which has worked successfully in Britain, NZ, ACT and Victoria would do?
- ->Give more attention to rights of marginalised and disadvantaged
- ->Mean that if parliament wanted to make a law that infringed on HR it would involve more deliberation and be subject to more media and public scrutiny
What limitations on individual rights have been implemented in Australia?
- Suspension of the Racial Discrimination Act in the intervention in Aboriginal communities in the NT
- children in immigration
- federal sedition laws preventing freedom of speech
Why else do we need a bill of rights
> there is such a large volume of law mean
What does having such a large volume of law for parliament to deal with mean for rights?
there is inadequate examination of legislations, leading to overlooked human rights
What does it mean when one party dominates both the upper and lower house?
our rights can become quite weak
In what artile did G Williams argue ‘we should adopt a national charter of rights to improve how our parliament operates so laws are made and basic services delivered in a way that better reflects HR for everyone.’
‘Wisdom of politicians is frail shield for our rights’ G Williams, SMH 2009.
in ‘Wisdom of politicians is frail shield for our rights’ G Williams, SMH 2009. what did G Williams argue?
‘we should adopt a national charter of rights to improve how our parliament operates so laws are made and basic services delivered in a way that better reflects HR for everyone.’
What was developed by the Human Rights Commission in 2009?
A model for a charter which would involve the commission notifying AG when legislation was inconsistent with the charter of rights.
Why was the HRC’s model for a charter of rights in 2009 criticised?
it could make the HRC similar to a constitutional court in striking down laws
What did former premier Bob Carr say in the SMH 2009 article ‘Rights charter like a dead parrot’
a reason why a charter was suggested was that a constitutional bill of rights wouldn’t pass at referendum
(Argument for) eg. Same Sex marriage
Common law doesn’t adequately protect HR
(Argument for) eg, deportation of Vivian Solon in 2003 highlighted deficiencies in the Migration Act
Statue law doesn’t adequately protect HR
(Argument for) Minorities who are discriminated against
be better protected
(Argument for) eg. Aboriginal people still aren’t adequately protected
Minorities who are discriminated against would be better protected
How would a charter of rights improve the gov’s decision making?
they would need to accord with the Charter
(Argument for) help educate about
would help educated us about our rights
(Argument for) A bill would promote
tolerance and acceptance in the community
How would a charter of rights envisaged by the HR Consultation reduce the problem of a right being inconvenient?
It would be very difficult to get rid of, eg. USA ‘right to bear arms’
(Argument against) eg. right to freedom of political communication in High Court Case
Rights are well protected by the common law.
(Argument against) eg. Young Persons Care and Protection Act 1998 (NSW)
eg. same property rights of married couple and de facto hetero and homosexual couples
Rights are well protected by statute law
(Argument against) Parliament is
the best protector of rights
(Argument against) Judges could
become involved in making political decisions, breaking the separation of powers
(Argument against) Decision making could become
more difficult with challenges based on a charter of rights
(Argument against) What is more important than a bill of rights?
proper educational programs on rights
(Argument against) Australian culture is already
‘tolerant and accepting’
(Argument for) It would redress
the inadequacy of existing human rights protections
Is there strong community support for a charter of rights?
yes
What would a charter of rights reflect?
reflect basic Australian values
Who would a charter of rights protect?
the marginalised and disadvantaged
What would a charter of rights contribute to?
a culture of respect for human rights
If Australia had a charter of rights, how would their international standing change in relation to HR?
It would improve
Could a charter of rights generate economic benefits?
YEs, but check as to why
What would bring Australia into line with other western democracies??
A charter of rights
What would bring Australia into line with other western democracies??
A charter of rights
What could a charter of rights undermine?
a tradition of parliamentary sovereignty, including transferring legislative power to unelected judges
Would better human rights protection be guaranteed under a charter of rights?
No
What could a charter of rights potentially cause?
negative outcomes for human rights
what would litigation be in order to create a charter of rights?
excessive and a major economic cost
Why would we not need a charter of rights?
Democratic processes and institutions offer better protection of rights
Why would we not need a charter of rights?
Democratic processes and institutions offer better protection of rights
What is a charter of rights?
a document that outlines the basic rights to which every human is entitled
How can a Charter of Rights be part of a country’s laws?
- It can be entrenched
2. It ca be legislative (passed as normal legisation)
What was a key recommendation of the 2009 National HR Consultation Committee?
To introduce a Federal ‘HR Act’ enshrining HR in Aust legislation
After the 2009 National HR Consultation Committee recommended a Federal ‘HR Act’ enshrining HR in Aust legislation be introduced what did the Aust gov announce?
They would not be introducing this legislation
What would an entrenched Charter of Rights be?
part of Australia’s Constitution
What would be a benefit of having an entrenched Bill of Rights?
As part of the Constitution it would be hard to change, helping to protect HR despite who was in power.
If a Charter of Rights was entrenched what could no government do?
Pass a law which contradicts any right of the Charter
What would be the problem with having an entrenched Charter of Rights?
As it is hard to change, it couldn’t be amended to reflect changing societal values as is sometimes needed. It could become irrelevant or inappropriate
Why is it hard to control gun laws in the US?
They have an entrenched Bill of Rights - the right to bear arms. Might have been necessary when bill was created, but now less necessary and contributes to murder and violence within the US
Was the proposed Human Rights Act by the National HR Consultation Committee in 2009 entrenched or legislative?
Legislative
Do people have the same protections under a legislative Charter of Rights?
No. Whilst there is a level of protection as it can be easily changed by the legislature.
Despite a legislative bill of rights not offering the same level of protection as an entrenched bill of rights, what is argued?
This doesn’t matter as a population can just elect another government if they’re unhappy with the changes to rights/they’re removed
What is a case showing that the common law doesn’t adequately protect rights?
McInnes v Queen 1979 it was found there was no right to legal representation
Can the common law meet contemporary needs?
No, esp. with advancing tech and it can’t protect people’s rights fast enough with regard to technology that encroaches on people’s rights, eg. surveillance tech
What would a Charter of Rights protect people from?
gov interference with basic HR. At the moment they can still make laws that infringe on people’s rights and people can do little to challenge these laws
What would a Charter of Rights adopt?
A major recommendation of the National HR Consultation Committee, whose report was released in 2009.
The recommendations for a Charter of RIghts by the National HR Consultation Committee were given after what?
one of the largest public consultations in Aust’s history
Human rights are already adequately protected through?
International agreements, common and statue law
Can a Charter of Rights protect all HR?
No. It can only protect people within the limits of the rights it lists. This could mean that the only recognised rights people have are those listed in the charter
Why would the judiciary have to take on a political role if we had a Charter of Rights?
It would have to decide whether laws infringed on the Charter of Rights
What is the danger of a legislative Charter of Rights?
It’s too easy to change and can be amended according to the policies of political parties in power.
A charter of rights is
the document that sets out a country’s or group of people’s human rights and entitlements within a nation state.
