Area 3 - Human Rights

Question 1

Define human rights

Answer 1

basic entitlements and liberties that exist for all human beings, irrespective of any personal qualities and characteristics. One example is the right to vote, which has been held to be indirectly protected by the structure of representative government which is set up in s.7 and s.24 of the Constitution.

Question 2

Define United Nations

Answer 2

an intergovernmental organisation that aims to promote better living standards and human rights, maintain international peace and security, and develop friendly relations
among nations.

Question 3

define Universal Declaration of Human Rights

Answer 3

(UDHR) an agreement created by the United Nations that sets out the common entitlements that should be afforded to all peoples across all nations.
-30 articles e.g.
Article 5: No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.
Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law.
Article 18: Everyone has the right to freedom of thought, conscience and religion.
Article 23(2): Everyone, without any discrimination has the right to equal pay for work.

Question 4

define Australian Constitution 

Answer 4

the founding document of Australia that sets out the composition of the Australian Parliament, its function and layout, and its power. The Constitution differs from regular legislation in Australia in that it can only be altered via referendum in which a majority of electors from all states and territories, and a majority of electors in a majority of states approve the amendment.

Question 5

define express rights

Answer 5

the five human rights that are explicitly stated and entrenched in the Australian Constitution.

example: the right to freedom of religion (section 116) (this prohibits the Commonwealth from making laws that establish a religion or ban people from practicing their religion).

Question 6

what are the five express rights?

Answer 6

-the right to be not discriminated against based on your state of residence (s.117)
-the right to acquisition of property on ‘just terms’ when property is acquired by the Commonwealth (s. 51)
-the right to freedom of religion (s. 116)
-the right to free interstate trade and commerce (s. 92)
-the right to trial by jury for Commonwealth indictable offences (s.80)

Question 7

define implied right

Answer 7

Implied rights are rights that are not expressly stated in the Australian Constitution but are considered (or implied) to exist by the High Court when interpreting the Constitution’s meaning.

Question 8

example case: implied freedom of political communication

Answer 8

The High Court has ruled that the right to freedom of political communication is implied in our Constitution, as established in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106.

Facts: The Commonwealth Political Broadcasts and Disclosure Act 1991 banned political advertising on radio and television during elections. The Constitutional validity of the act was challenged in the High Court by a TV broadcaster

Decision:
Justice Mason confirmed the implied right to freedom of speech on political matters.
Members of Parliament and ministers are representatives of the people. To be representative they need to be accountable, and part of this accountability involves taking account of the views of the people.
The voting public must be free to express their views.
The Broadcasting Act was invalid as it interfered with the freedom to speak about political issues.

Question 9

define Structural protections

Answer 9

the systems and mechanisms established by the Constitution that indirectly protect human rights by ensuring the government’s actions achieve human rights protections.
-series of checks and balances, to indirectly protect our basic democratic and human rights by preventing the abuse of parliamentary power

Question 10

Separation of powers

Answer 10

a principle established by the Australian Constitution that ensures the legislative, executive, and judicial powers remain separate.
-separates 3 functions of the legal system to create a system of checks and balances and avoid abuse of power
-Chapter 1 deals with the legislature (s. 1)
-Chapter 2 (11) deals with the executive (s.61)
-Chapter 3 (111) deals with the judiciary (s.71)

Question 11

Representative government 

Answer 11

a system in which Members of Parliament are elected by the people of a community or nation to best represent the needs and views of those people.
-key structural protection in the Constitution
-designed to prevent governments from abusing power by making them answerable to people at elections, ensuring members of Parliament represent the views and needs of those who voted them in:
S.7 requires that the Senate be “directly chosen by the people”
S.24 states the House of Representatives must be “directly chosen by the people”
S.28 provides for three-year terms for the House of Representatives, meaning elections must occur at least every three years
S.13 means senators must face an election every six years

Question 12

what is a test case?

Answer 12

A “test case” is a legal action taken to challenge or clarify a specific law.
-seeks to clarify the legal rights and duties of a group or individual under common or statute law, or to challenge pre-existing interpretation of those rights
-Test cases are rare – they are expensive and there is no guarantee of success. They are however very important as they may allow a disadvantaged group or individual to attain redress, and pave the way for the advancement of human rights for a particular group…

Question 13

significance of the UDHR

Answer 13

Non-binding international agreement created by the UN that sets out the common entitlements that should be afforded to all people across all nations.
-it is aspirational in nature and can influence a country’s parliament to enact legislation that aligns with the articles of the declaration such as the commonwealth parliament passing the The Racial Discrimination Act 1975 (Cth).
-the UDHR has been adopted by each of the 193 members of the UN, and the principles of the UDHR have been incorporated into the national, or domestic laws of most countries in the world.
-it has inspired the creation of more than 80 international treaties, declarations and agreements, and a number of international human rights organisations that provide further recognition and protection of human rights.

Question 14

what is: the High Court

Answer 14

• one of the structural protections created in the Constitution
• the guardian of the Constitution in Australia, ensuring State and Commonwealth governments abide by its terms (through High Court interpretation)

Question 15

how are rights protected by the Constitution enforced?

Answer 15

-All rights protected by the Australian Constitution can be enforced by the High Court.
-If a case is brought before the High Court and the High Court decides that a law infringes a right either stated or implied in the Constitution, the High Court can declare the law to be unconstitutional and therefore invalid.
-The parliament must then either amend the legislation or change the Constitution by holding a referendum (section 128).

Question 16

What was the impact of the Roach case on the human rights of individuals?

Answer 16

The High court’s decision affirmed there is a constitutional right to vote for adult members of the Australian community, which is protected by the structure of representative government in s.7 and s.24 of the Constitution (the High Court did not go so far as to call the right to vote an implied right). Where prisoners are serving a prison sentence of less than three years, they retain their right to vote, despite being in prison when an election takes place.

Question 17

What was the impact of the Roach case on the legal system?

Answer 17

The High Court’s decision reaffirmed the importance of the separation of powers under the Constitution. The Commonwealth Parliament retains the right to pass legislation about who can vote. However, the check and balance on this power is the High Court’s ability to interpret legislation which impacts voting rights to ensure that Parliament cannot legislate to take away the right to vote without good reason. In particular, the structure of representative government set up in the Constitution under s.7 and s.24 acts as a limit on the powers and sovereignty of the Commonwealth Parliament when legislating on voting rights.

Question 18

The Commonwealth Constitution as a means of protecting rights- STRENGTHS

Answer 18

• express rights cannot be changed unless through a referendum; that is, with the support of the community via a public vote
  -the implied freedom of political communication shows that rights can be interpreted and clarified by the High Court
  -There are some rights that are indirectly protected through the text and structure of the Constitution, such as the right of the people to elect the parliament which is indirectly protected by the principle of representative government
  -All rights protected by the Constitution are fully enforceable through the High Court and any statute that is found to breach those rights can be declared invalid
  -The courts can interpret the meaning of the words and phrases in the Constitution so it can keep pace with changes in community values and remain relevant over time

Question 19

The Commonwealth Constitution as a means of protecting rights- LIMITS

Answer 19

-Rights contained in the Constitution are difficult to change due to the referendum process. Rights may therefore lad behind attitude changes
-very few rights are expressly protected under the Constitution
-The rights that are expressly protected in the Constitution are very limited in scope, such as the limited right to trial by jury
-It is expensive and time-consuming to take a case to the High Court to challenge statute that breaches a right
-The High Court cannot interpret the meaning of the Constitution and declare an infringement of rights until a case is brought before it

Question 20

What is the VCHRR?

Answer 20

The Vic Charter of Human Rights and Responsibilities Act 2006 sets out the basic rights, freedoms and responsibilities of all people in Victoria. The Charter is about the relationship between government and the people it serves.

The VCHRR defines human rights as basic entitlements that belong to each of us, regardless of our background, where we live, what we look like, what we think, or what we believe.
The Charter contains 20 basic rights that promote and protect the values of freedom, respect, equality and dignity. These rights are protected in three main ways:
1. Public authorities, including local government and Victoria Police, must act in ways that are compatible with human rights and take relevant human rights into account when making decisions.
2. Human rights must be taken into account when Parliament makes new laws (think back to when we covered statements of compatibility).
3. Courts and tribunals must interpret and apply all laws compatibly with human rights.

Question 21

examples of rights protected by the VCHRR

Answer 21

Right to recognition and equality before the law (s 8)
Right to life (s 9)
Right to freedom of movement (s 12)
Right to freedom of thought, conscience, religion and belief (s14)
Right to a fair hearing (s 24)
Right not to be tried or punished more than once (s 26)

Question 22

How are human right protected through statute law?

Answer 22

The Commonwealth Parliament has the power to pass legislation that applies to and protects the rights of all Australians, while each state and territory parliament has the power to pass laws that protect the rights of the residents of that state or territory.
Examples of rights that are protected by Victorian and Commonwealth legislation include:
The right to freedom from discrimination
Equal Opportunity Act 2010 (Vic)
Age Discrimination Act 2004 (Cth)
Racial Discrimination Act 1975 (Cth)
The right to feel secure and safe
Crimes Act 1958 (Vic)
Sentencing Act 1991(Vic)
Crimes Act 1914 (Cth)

Question 23

statute law and the VCHRR as a means of protecting rights STRENGTHS

Answer 23

• Parliament can amend statutes and charters to incorporate further rights, particularly as society changes
  -statutes and charters 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 does have the ability to pass laws quickly if there is a need to quickly protect additional rights

Question 24

statute law and the VCHRR as a means of protecting rights LIMITS

Answer 24

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

Question 25

how are rights protected under common law?

Answer 25

In Australia, many rights are protected by common law, established by judges when clear laws are absent. This includes interpreting legislation and setting legal precedents.

Judges have recognized rights, such as the right to remain silent during police questioning, which have been codified into laws like the Native Title Act 1993 (Cth), reinforcing principles from the Mabo case.

The High Court as the guardian of the constitution can protect the human rights of Australians by using their power to declare Acts of Parliament invalid if they are made outside or beyond Parliament’s law-making powers, known as ‘ultra vires’.

Individuals can challenge unconstitutional legislation in the High Court, which can declare it invalid, and Parliament cannot overturn this ruling. The High Court can also declare a law invalid if they violate constitutional rights.

Question 26

rights protected through common law STRENGTHS

Answer 26

-the courts and judges are independent of parliament and can establish precedent free from political pressures
-courts and judges are able to make decisions to establish rights in areas where the parliament has not
-the courts are able to infer rights without the need to consider how those rights may need to be limited
-courts are able to highlight to parliament gaps in the law that protect rights, which may encourage parliament to change the law to further protect rights
-historically, courts have been able to protect rights and parliament has not overly interfered with those common law rights by abrogating them

Question 27

rights protected through common law LIMITS

Answer 27

-common law rights are not always easy to define or identify (as opposed to statutory rights)
-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
-often judges are reluctant to recognise certain rights (such as right to privacy), leaving it up to parliament to protect those rights
-judges are limited in applying the law to the case that is before them. They cannot simply ‘create rights’ in any dispute

Question 28

define- the right to vote

Answer 28

The right to vote (sometimes called ‘suffrage’) is the freedom or ability of the people to choose their leaders or representatives in an election. While the right to vote is not expressly stated in the Australian Constitution, there is a right to vote in all Australian states and territories.

Question 29

the right to vote- statute law (laws that apply)

Answer 29

Australia lacks a single national bill of rights to protect basic human rights. However, various laws enacted by the Commonwealth, state, and territory parliaments do recognize these rights.

The Commonwealth Electoral Act 1918 (Cth) grants all Australian citizens aged 18 and over the right to vote in federal elections, making voting compulsory since 1924, barring certain disqualifications. Disqualifications include individuals deemed incapable of understanding voting, those guilty of treason or treachery, and those serving prison sentences of three years or longer.

Each state and territory has its own voting legislation. In Victoria, the right to vote is protected under the Victorian Charter of Human Rights and Responsibilities (VCHRR), which guarantees participation in public life. Disqualifications must be reasonable, necessary, justified, and proportionate.

Question 30

the right to vote- the aus constitution (laws that apply)

Answer 30

While the right to vote isn’t explicitly listed in the Constitution, the High Court interprets sections 7 and 24 as protecting a qualified right for eligible individuals to vote.
These sections require the Senate and House of Representatives to be directly elected by the people, supporting the principle of representative government. Senate members serve six-year terms, while House members serve three years. Regular elections ensure that citizens can remove the government if it fails to represent their views.

Question 31

the right to vote- common law (laws that apply)

Answer 31

The High Court as the guardian of the Constitution has established some legal principles when resolving constitutional disputes that protect the right to vote.
When interpreting the meaning of s.7 and s.24 of the Australian Constitution, the High Court has clarified the meaning of these sections and restricted the ability of the Commonwealth Parliament to unreasonably deny Australian citizens the right to vote.

Question 32

the right to vote common law- Rowe v electoral commissioner case (2010) (enrollment period)

Answer 32

Rowe challenged Commonwealth legislation that reduced the enrollment period for voting from 7 days to 3 days after a federal election was called. Those who did not enroll within this 3-day window were ineligible to vote.
The High Court ruled that this change unnecessarily restricted access to voting, declaring the provisions invalid as they violated sections 7 and 24 of the Constitution. In the 2004 federal election, about 423,000 people enrolled or updated their information during the original 7-day period, showing that the reduction decreased eligible voters.

Question 33

Roach v Electoral Commissioner (2007) case

Answer 33

In 2006, the Commonwealth Parliament passed the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act, which banned all prisoners from voting in federal elections. Before this, only prisoners serving sentences longer than three years were prohibited from voting.

As of June 2006, over 20,200 prisoners were in Australia, 24% of whom were First Nations individuals. Vicki Lee Roach, a First Nations woman, was serving a six-year sentence and challenged the law’s constitutionality on several grounds:

1. It violated sections 7 and 24 of the Australian Constitution, which ensure that representatives are “directly chosen by the people.”
2. It exceeded the law-making powers of the Commonwealth Parliament.
3. It contradicted the implied right to freedom of political communication.
4. It undermined representative government by ignoring that prisoners with lesser sentences could engage more in electoral processes.

In 2007, the High Court ruled that the 2006 Act was unconstitutional, affirming that the principle of representative government protects the right to vote. They stated that while Parliament could restrict voting rights, such restrictions must be reasonable. It was deemed reasonable to deny the vote to prisoners serving serious sentences.

Ultimately, the Roach case ensured that prisoners serving three years or less could vote, but it did not grant Roach the right to vote due to her six-year sentence.

Question 34

define common law

Answer 34

Common law: is the body of law that is derived from judicial reasoning and decisions in past cases. Common law is created where a legal issue arises and there is no existing law, and the facts of the case are different to any previous cases. In these cases, the court creates a new principle of law (common law) to resolve the issue, which will then be followed in future cases of a similar nature.

Question 35

define statute law

Answer 35

Statute law consists of laws enacted by Parliament, known as legislation. For a proposed law to take effect, it must receive majority approval from both Houses of Parliament and final consent from the King’s representative, the Governor at the state level and the Governor-General at the Commonwealth level.

Question 36

lowering voting age to 16 FOR

Answer 36

16 to 17-year-olds are politically engaged and impacted by political decisions, meaning they should have the right to vote.
* 16 to 17-year-olds who are working and paying taxes deserve to have their views and values represented in parliament as they are already engaged in, and affected by, systems that are determined by the government of the day.

Question 36

lowering voting age to 16 AGAINST

Answer 36

People under 18 years old do not have the political understanding to make a responsible choice.
* People under 18 years old who are not politically engaged may be more likely to make an ill-informed vote, due to their relative lack of maturity, or rely on parental influence or unreliable sources such as social media which may compromise the vote being truly reflective of the views and values of the people.

Question 37

making voting voluntary -against

Answer 37

-Compulsory voting ensures a large proportion of individuals in Australia participate in elections.
-Since the introduction of mandatory voting in 1924, over 90% of those registered have voted in each federal election (Parliamentary Education Office, 2023)
* Voting is not only a right, but a duty that citizens must undertake, like jury duty or paying taxes.
* Compulsory voting ensures parliament reflects the views and values of the majority of the Australian people as elected representatives have won a majority of the population’s votes.
* Individuals are more likely to engage with politics if they are required to vote,
increasing the population’s political education and awareness

Question 38

making voting voluntary- for

Answer 38

-Individuals who are not interested in politics may cast a random or ill-informed vote, diminishing the quality of votes and jeopardizing the integrity of the voting system.
* Individuals who do not support any of the candidates are still forced to vote for candidates that do not necessarily represent their views.
* Citizens should choose whether they want to vote, rather than being forced to do so.

Question 39

the right to vote- development/nature of the right

Answer 39

The right to vote has developed significantly since British colonisation.
The first federal election took place on 29 and 30 March 1901, allowing individuals to elect representatives to Commonwealth Parliament, however First Nations peoples were not granted the right to vote in federal elections until the Commonwealth Electoral Act 1918 (Cth) was amended in 1962.

Australia was one of the original countries to support the Universal Declaration of Human Rights (1948) (UDHR). In doing so, Australia committed to respecting and promoting the achievement of the basic human rights and freedoms outlined in the UDHR.
The UDHR sets out a range of basic human rights and freedoms that broadly acknowledge the right to vote by recognising:
The right of all people to take part in the government of their country, either directly or through freely chosen representatives.
That the will (or wishes) of the people shall be ‘the basis of the authority of government’, and that the people will have the opportunity to express these wishes through the right to vote.

Question 40

analyse the impact of a case study on the human rights of an individual and on the legal system

Answer 40

The right to vote (sometimes called ‘suffrage’ is the freedom or ability of the people to choose their leaders or representatives in an election. The case of Roach vs Electoral Commissioner (2007) is a significant High Court case relating to the human rights issue of voting rights for prisoners in Australia. Specifically, it shows us how the right to vote is indirectly protected by one of the “structural protections” set up by the writers of the Constitution, namely representative government.
The plaintiff, Vicki Lee Roach, was an indigenous prisoner serving a 6-year jail sentence. The plaintiff questioned the validity of certain amendments made to the Electoral Act 2006 which prohibited all prisoners serving a sentence of imprisonment for a Commonwealth, State or Territory offence from voting in federal elections. Previously, only prisoners serving a sentence of more than three years were prohibited.
Roach challenged the constitutional validity of the 2006 amendments on 4 grounds, one being that the act limited the operation of the system of representative government (a structural protection set up in the Constitution). The High Court decided the amendment that imposed a complete ban on voting rights was invalid and unconstitutional because it was contrary to the principle of representative government, set up by s.7 and s.24 of the Constitution which require respectively that the Senate and the House of Representatives be directly elected by the people. The court found that the right to vote must exist to uphold this structure of representative government.
The Roach case impacts the right to vote for individuals because it affirmed there is a constitutional right to vote for adult members of the Australian community, which is protected by the structure of representative government in s.7 and s.24 of the Constitution (the High Court did not go as far as to call the right to vote an implied right). As a result of the Roach case, where prisoners are serving a prison sentence of less than three years, they retain their right to vote, despite being in prison when an election takes place. Unfortunately, for Vicki Roach she was serving a prison sentence of six years, meaning that she won her constitutional argument but was still prohibited from voting in the 2007 election.
The Roach case impacts the legal system because it shows us how the structure of representative government can act as a limit on the powers and sovereignty of Commonwealth Parliament where necessary to protect our rights. It also reinforces the importance of the separation of powers where our Parliament has the power to make laws with respect to voting rights, however our High Court as the guardian of the Constitution is able to interpret legislation in the area of voting rights to ensure it does not threaten our system of representative government as set up under s.7 and s.24 of the Constitution. In Roach’s case, the High Court’s decision protected this structure of representative government by finding that the Commonwealth Parliament could not legislate away the right to vote without good reason (good reason may include unsound mind, and prisoners serving sentences of more than three years). However, the Roach case also highlights that this protection in our legal system can only function effectively if individuals such as Roach are prepared to bring test cases at their own risk, such as large cost orders against them to clarify the operation of human rights.