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Legal Studies HSC > 2.4 g) The role of a Charter of Rights (Arguments for and Against) > Flashcards

2.4 g) The role of a Charter of Rights (Arguments for and Against) Flashcards

1
Q

How many international treaties has Australia signed that support HR?

A

5

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2
Q

When was the 1st attempt to incorporate some basic rights into the Constitution?

A
  1. The referendum was defeated, as it gained only 45.39% of the vote
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3
Q

Is Australia the only Western democracy that doesn’t have a Charter of Rights?

A

Yes!!!

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4
Q

What did AG Lionel Murphy do in 1973?

A

Attempted to introduce a HR Bill 1973 that would’ve implemented the ICCPR into Aust law by protecting a no. rights. It failed though.

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5
Q

What did AG Lionel Murphy argue with regard to his failed HR Bill 1973?

A

“although we believe these rights to be basic to our democratic society, they now receive remarkably little protection in Australia.”

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6
Q

What did AG Gareth Evans do in 1985?

A

Proposed a statutory charter of rights.

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7
Q

How far did AG Gareth Evans’ Proposed statutory charter of rights get in 1985?

A

it got through cabinet but wasn’t introduced to parliament

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8
Q

what was passed in the lower house but then withdrawn?

A

A watered down version of AG Gareth Evans’ proposal: Australian HR Bill 1985

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9
Q

What also happened in 1985?

A

Hawke Labor gov set up a ‘Constitutional Commission’ to investigate and recommend changes to the Aust. Const.

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10
Q

what was proposed in 1985?

A

a new chapter on rights and freedoms, however this referendum failed

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11
Q

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?

A
  • -> Be changed over time w. changing community attitudes

- -> Require more attention be given to rights of all Aust. people

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12
Q

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?

A
  • ->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
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13
Q

What limitations on individual rights have been implemented in Australia?

A
  • 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
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14
Q

Why else do we need a bill of rights

A

> there is such a large volume of law mean

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15
Q

What does having such a large volume of law for parliament to deal with mean for rights?

A

there is inadequate examination of legislations, leading to overlooked human rights

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16
Q

What does it mean when one party dominates both the upper and lower house?

A

our rights can become quite weak

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17
Q

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.’

A

‘Wisdom of politicians is frail shield for our rights’ G Williams, SMH 2009.

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18
Q

in ‘Wisdom of politicians is frail shield for our rights’ G Williams, SMH 2009. what did G Williams argue?

A

‘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.’

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19
Q

What was developed by the Human Rights Commission in 2009?

A

A model for a charter which would involve the commission notifying AG when legislation was inconsistent with the charter of rights.

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20
Q

Why was the HRC’s model for a charter of rights in 2009 criticised?

A

it could make the HRC similar to a constitutional court in striking down laws

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21
Q

What did former premier Bob Carr say in the SMH 2009 article ‘Rights charter like a dead parrot’

A

a reason why a charter was suggested was that a constitutional bill of rights wouldn’t pass at referendum

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22
Q

(Argument for) eg. Same Sex marriage

A

Common law doesn’t adequately protect HR

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23
Q

(Argument for) eg, deportation of Vivian Solon in 2003 highlighted deficiencies in the Migration Act

A

Statue law doesn’t adequately protect HR

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24
Q

(Argument for) Minorities who are discriminated against

A

be better protected

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25
Q

(Argument for) eg. Aboriginal people still aren’t adequately protected

A

Minorities who are discriminated against would be better protected

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26
Q

How would a charter of rights improve the gov’s decision making?

A

they would need to accord with the Charter

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27
Q

(Argument for) help educate about

A

would help educated us about our rights

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28
Q

(Argument for) A bill would promote

A

tolerance and acceptance in the community

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29
Q

How would a charter of rights envisaged by the HR Consultation reduce the problem of a right being inconvenient?

A

It would be very difficult to get rid of, eg. USA ‘right to bear arms’

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30
Q

(Argument against) eg. right to freedom of political communication in High Court Case

A

Rights are well protected by the common law.

31
Q

(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

A

Rights are well protected by statute law

32
Q

(Argument against) Parliament is

A

the best protector of rights

33
Q

(Argument against) Judges could

A

become involved in making political decisions, breaking the separation of powers

34
Q

(Argument against) Decision making could become

A

more difficult with challenges based on a charter of rights

35
Q

(Argument against) What is more important than a bill of rights?

A

proper educational programs on rights

36
Q

(Argument against) Australian culture is already

A

‘tolerant and accepting’

37
Q

(Argument for) It would redress

A

the inadequacy of existing human rights protections

38
Q

Is there strong community support for a charter of rights?

A

yes

39
Q

What would a charter of rights reflect?

A

reflect basic Australian values

40
Q

Who would a charter of rights protect?

A

the marginalised and disadvantaged

41
Q

What would a charter of rights contribute to?

A

a culture of respect for human rights

42
Q

If Australia had a charter of rights, how would their international standing change in relation to HR?

A

It would improve

43
Q

Could a charter of rights generate economic benefits?

A

YEs, but check as to why

44
Q

What would bring Australia into line with other western democracies??

A

A charter of rights

45
Q

What would bring Australia into line with other western democracies??

A

A charter of rights

46
Q

What could a charter of rights undermine?

A

a tradition of parliamentary sovereignty, including transferring legislative power to unelected judges

47
Q

Would better human rights protection be guaranteed under a charter of rights?

A

No

48
Q

What could a charter of rights potentially cause?

A

negative outcomes for human rights

49
Q

what would litigation be in order to create a charter of rights?

A

excessive and a major economic cost

50
Q

Why would we not need a charter of rights?

A

Democratic processes and institutions offer better protection of rights

51
Q

Why would we not need a charter of rights?

A

Democratic processes and institutions offer better protection of rights

52
Q

What is a charter of rights?

A

a document that outlines the basic rights to which every human is entitled

53
Q

How can a Charter of Rights be part of a country’s laws?

A
  1. It can be entrenched

2. It ca be legislative (passed as normal legisation)

54
Q

What was a key recommendation of the 2009 National HR Consultation Committee?

A

To introduce a Federal ‘HR Act’ enshrining HR in Aust legislation

55
Q

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?

A

They would not be introducing this legislation

56
Q

What would an entrenched Charter of Rights be?

A

part of Australia’s Constitution

57
Q

What would be a benefit of having an entrenched Bill of Rights?

A

As part of the Constitution it would be hard to change, helping to protect HR despite who was in power.

58
Q

If a Charter of Rights was entrenched what could no government do?

A

Pass a law which contradicts any right of the Charter

59
Q

What would be the problem with having an entrenched Charter of Rights?

A

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

60
Q

Why is it hard to control gun laws in the US?

A

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

61
Q

Was the proposed Human Rights Act by the National HR Consultation Committee in 2009 entrenched or legislative?

A

Legislative

62
Q

Do people have the same protections under a legislative Charter of Rights?

A

No. Whilst there is a level of protection as it can be easily changed by the legislature.

63
Q

Despite a legislative bill of rights not offering the same level of protection as an entrenched bill of rights, what is argued?

A

This doesn’t matter as a population can just elect another government if they’re unhappy with the changes to rights/they’re removed

64
Q

What is a case showing that the common law doesn’t adequately protect rights?

A

McInnes v Queen 1979 it was found there was no right to legal representation

65
Q

Can the common law meet contemporary needs?

A

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

66
Q

What would a Charter of Rights protect people from?

A

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

67
Q

What would a Charter of Rights adopt?

A

A major recommendation of the National HR Consultation Committee, whose report was released in 2009.

68
Q

The recommendations for a Charter of RIghts by the National HR Consultation Committee were given after what?

A

one of the largest public consultations in Aust’s history

69
Q

Human rights are already adequately protected through?

A

International agreements, common and statue law

70
Q

Can a Charter of Rights protect all HR?

A

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

71
Q

Why would the judiciary have to take on a political role if we had a Charter of Rights?

A

It would have to decide whether laws infringed on the Charter of Rights

72
Q

What is the danger of a legislative Charter of Rights?

A

It’s too easy to change and can be amended according to the policies of political parties in power.

73
Q

A charter of rights is

A

the document that sets out a country’s or group of people’s human rights and entitlements within a nation state.

Legal Studies HSC (45 decks)

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