Ch 12: Protecting Human Rights Flashcards
Define individual/natural rights
modern view seriously expressed since the 1700s that people are naturally free and are citizens who are tied to the nation by ‘free agreement’ through a social compact, as equal citizens people have equal rights to ‘life, liberty and the pursuit of happiness’ that are not subject to the will of governments
What are legal rights?
claim that is authorised by law and enforced by the courts
Define first, second and third generation rights
- first generation/negative rights: cover essential political and legal freedoms that are required to protect free political decision-making and include free speech, freedom of assembly and democratic voting rights. Include the legal freedoms that are required to protect individuals against the power of the state i.e. modern anti-discrimination laws
- habeas corpus
- protection from cruel and inhuman punishment
- equality before the law
- second generation rights/positive freedoms: socio-economic rights that require government action to make them possible
- right to freedom from poverty and disease
- right to practice religion
- right to practice culture
- third generation/collective-developmental rights: of people and groups
- right to self-determination of peoples
- right to economic and social development
What are human rights?
rights that belong to all people simply because they are human beings. A basic principle of a free society is that people have inalienable rights (cannot be ‘given away or legitimately reduced by the actions of govt.) incl. legal rights (right to a fair trial) and civil rights (freedom of speech)
Define civil, political, cultural and economic rights
civil rights: rights that generally restrict the powers of the govt. in respect to actions affecting the individual and his/her autonomy (individual rights) i.e. right to life, right to freedom, freedom from discrimination, right to trial
political rights: similar to civil rights but relates to govt. processes which are structured to ensure opportunities for political participation of all eligible citizens i.e. franchise, elections, seeking office/seeking to take part in the political processes either directly or indirectly
cultural rights: human rights that ensure people ad communities have the freedom to access and participate in the culture of their choice. These cultural rights are aimed at ensuring humans can enjoy their culture and therefore preserve and develop one’s cultural identity. When cultural rights are upheld people can enjoy their culture and ethnicity in conditions of equity, human dignity and non-discrimination
economic rights: ensure that every person is afforded conditions under which they are able to meet their needs i.e. right to work, education, food and water, health, housing and social security
What are the requirements for a human rights culture?
- democratic system of govt. (essential foundation)
- acceptance of liberal constitutional principles
- limited govt.
- rule of law (and therefore legal rights)
- open society
- democratic elections
- effective accountability of political and legal institutions
- general respect for individual and minority rights
What are mechanisms for the protection of human rights?
- constitutional entrenchment of rights: provides very strong protection of rights and rigidity as constitutional provisions override any other law and are often difficult to change i.e. the Bill of Rights in the Const. of the US
- statutory bill of rights: essential human rights are set out in general legislation. Gives parliament the final say – they can exempt specific legislation from human rights standards and they can amend the bill of rights if they think the judgements of courts do not reflect the democratic will of the people. Courts can hear cases of alleged breached and determine remedies and also make advisory judgements that an existing new statute is in breach of human rights standards
- rely on the strength of existing institutions to protect rights i.e. Australia relies on constitutional law, specific rights statutes and common law standards as sufficient to protect rights
Describe the UN and its key treaties and agreements
Origins
- grew out of WWII (1939-1945) and the tragedies that occurred
- founded in 1945 by the victorious nations with the central aim of achieving continuing world peace
Rights agreements
Universal Declaration of Human Rights
- seen as the foundation document of the UN
- placed greatest emphasis on civil rights – political and legal freedoms needed to protect individuals and groups from the exercise of repressive and undemocratic govt. power
International Covenant on Civil and Political Rights (1966)
- covers three general areas of human rights and freedoms:
- personal integrity rights i.e. right to life, right to self-determination, identity and nationality, freedom from slavery and discrimination, right to privacy, family and correspondence, freedom of thought, religion
- political rights i.e. freedom of movement, assembly and association, right to participate in free and fair elections
- legal rights i.e. right to liberty, legal equality and open and fair trial, presumption of innocence and right to judicial review, immunity from self-incrimination and compensation for wrongful punishment
International Covenant on Economic, Social and Cultural Rights (1966)
- covers wide range of rights incl. right to employment, social and economic security, right to education and health, right to family life and to participate in cultural life
What is the scope and effectiveness of the UN?
- UN documents set out the scope of the negative and positive rights that gather together to form a widespread international consensus on human rights
- however the documents are not completely accepted by all nations i.e. US and Islamic nations of the Saudi peninsular, have not formally accepted the ICCPR. Large numbers of countries have not accepted the documents or have accepted them subject to reservations about some of their conduct
- these rights are only completely effective when they have been incorporated into the domestic law of the individual countries that make up the UN – far from accomplished
- full acceptance of UN treaties creates significant obligations – countries that ratify a treaty are bound under international law to ensure that standards within the treaty are reflected in their own domestic policies, regular reports are submitted on implementation of treaty standards, and special Rapporteurs (UN investigators) visit member countries, some may agree to optimal protocols that can enable the UN committees to hear complaints
Describe the postive view of Aus’s human rights record
- strength of its political and legal traditions – reflecting the creation of representative and responsible govt. and the early achievement of democratic rights, also has a legal system that incorporates key Westminster traditions
- contemporary view believe the fact that human rights are not an issue for the large majority of the population suggests that Australia deserves a five star rating
Describe the negative view of Aus’s human rights record
- our colonial and significantly mono-cultural society – reflected in significant exceptions to the generally high quality of human rights in the nation – exceptions that denied Indigenous Australians political and legal equality and created discriminations against minorities and ‘outsiders’
- one view is that Australia has a utilitarian approach to govt. and law (govt. policies should aim to achieve the greatest number of citizens) which can narrow protections for minorities and can lead to an approach to governance that is more concerned with responses to immediate crises than adherence to rights (can be seen in reports by Amnesty International)
- weaknesses in Australia’s human rights protections include
- historical and contemporary life experience of Indigenous Australians
- examples of unequal laws and the unequal administration of law
- treatment of migrants over time and asylum seekers today
- failures to treat vulnerable people with dignity
- excessive to crises i.e. sedition and anti-terrorism laws passed in the early 2000s
- the failure to formally incorporate many aspects of UN’s human rights instruments into Australian law
- ‘law and order’ approaches that have led to statutes that restrict basic civil rights
How does mandatory sentencing affect human rights?
definition: laws that remove judicial discretion in the setting of criminal sanctions i.e. under mandatory sentencing laws passed in the NT and WA in the 1990s, courts delivering sentences for property crimes were required to apply fixed terms of detention to repeat offenders
examples in WA
- if a person aged 10 or older is convicted of an offence of home burglary and has 2 or more previous convictions for the same offence, the court must impose a penalty of detention for a year (juveniles must have committed the offences within 2 years)
- 2009: minimum mandatory jail terms of 6 months for an assault on a public officer (police/ambulance etc.)
Issues with human rights
- access and equity: disproportionately affect Aboriginal people (esp. youth). Male Indigenous Australians juveniles are 25 times more likely to be detained for law breaking than the average for other young males. Detention at a young age is likely to reinforce, not reduce, offending in adult years. The impact of these laws have been diluted recently by the use of intensive supervision orders for juvenile offenders, allowing detention to be suspended if requirements are met
- seen to be contrary to the terms to the International Covenant of the Rights of the Child to which Aus is a signatory
- absence of judicial discretion in application of laws was argues to be a dilution of the rights of an individual to be afforded a fair trial
How does Australia’s treatment of refugees affect human rights?
detention of asylum seekers
- under Australian policy asylum seekers arriving by boat were held in secure detention camps while their claims to be genuine refugees were assessed
- camps were constructed near cities and remote towns on offshore islands, and also in neighbouring countries (in. PNG and Nauru). Detention (of children and adults) lasted for a no. of months and in some cases years
- Australian law redefined the nation’s migration zone, excluding locations (Christmas Island) intending to prevent asylum seekers who had reached those islands from appealing to Australian territory in the Indian Ocean
cases and human rights issues
- Plaintiff M61 (2010): HC ruled that refugees had the same appeal rights as any other Australian resident
- Bakhtiyovi v. Australia (2002): the Human Rights Committee of the UN found that the holding of two children in immigration detention for 2 years and 8 months violated the children’s human rights
- 2008: several policies relating to asylum seekers were changed i.e. children were no loner to be detained
Many critics have suggested these alleged shortcomings would be best overcome with a bill of rights.
Describe constitutional protection of human rights
- a small number of rights are protected by the Constitution, however these protections mostly only apply to the application of federal law and the administration acts of the CW government
Explicit rights
definition: specifically written in law or can be drawn from the Australian COnstitution
- s41: right to vote, only for people who were enfranchised in the States at the time of federation
- s51(xxi): right for individuals to be compensated on just terms of the acquisition of property
- s80: right to trial by jury for an indictable offence under federal law
- s92: right of freedom of trade within Australia
- s116: limited protection of freedom of religion that specifically prevented the federal government from imposing a state religion/using a religious test in public sector employment
- s117: rights of citizens of one state to not be subject to any disability or discrimination in another state that would not apply in that other state
Implicit rights
definition: political or legal freedoms inferred from (possibly underlie the words of) the Australian Constitution, not directly stated. Must be inferred/ given interpretation from the words written in the Constitution. These implied rights have been contested in landmark decisions of the High Court.
- through s24 (‘the HoR is composed of members directly chosen by the people of the CW…’) created democratic representative govt. which therefore necessarily required some guarantees of the freedom of speech through the creation of a representative democracy
- Capital TV (1992): ruled invalid a CW Act that banned political advertising on TV during election campaigns
- Theophanus (1994): defamation law could not be used to prevent public discussion of political issues
- Levy (1997) and Lange (1997): put limits on the implied right of free speech, these decisions made it clear that the Court’s decisions had intended to limit the actions of govt. and politicians rather than create widely defined individual rights
- Roach (2007) and Rowe (2010): found an implied right to vote and limits to enrolment to vote were unconstitutional
- Plaintiff s157 (2003): federal government policy could not deny access to judicial review for anyone covered by CW laws based on the courts mandamus power in s75
Describe common law protection of human rights
- common law assumes that every citizen enjoys basic rights and freedoms unless statutes specifically remove them
Rights and freedoms assumed by common law:
- freedom form arbitrary arrest
- right of access to the courts
- freedom of speech, movement and association i.e. Haneef (2007)
- right to be presumed innocent until proven guilty
- right to fair trial
- right to compensation for deprivation of property
- equality of religion
- right to legal counsel when accused of a serious crime
- fair trial procedures incl. the rejection of illegally obtained evidence, the inadmissibility of coerced confessions and the right to remain silent
Limitations
- common law can recognise a right that affects the outcome of a specific legal case, it does not create general freedoms that can be used to nullify decisions under common law or to overturn statutes
Extension of rights and freedoms
- Mabo (1992): HC created native title rights to land and water for Indigenous Australians
- Dietrich (1992): Court found a right to publically provided legal representation existed when a person accused of a serious crime was unable to afford legal counsel
