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Ligma > CH 16 Jobby > Flashcards

CH 16 Jobby Flashcards

Fuck off politics

1
Q

How was Australia created

A

Through democratic processes and with the consent of colonial power in Britain. The process was peaceful and gradual

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2
Q

How does creation affect role of gov AUS

A

Means government has always been an active and progressive force in Australia

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3
Q

How was USA created

A

Fought a war on independence in which britain was activiley hostile to

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4
Q

How does creation affect role of gov USA

A

Americans have always been suspicious of government preferring to check its power and let individua enterprise develop the nation

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5
Q

How does creation affect rights

A

Resulted in very different views on rights and how to protect them

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6
Q

How many express rights in AUS con + give 2 eg’s

A

5
S80 right to trial by jury
s116 right to freedom of religion

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7
Q

eg of 1 implied right

A

Nationwide News V Wills 1992 implied right to pol comm

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8
Q

Human Rights and Equal Oppurtunity Act 1986

A

The cmwth parliament attempted to enact a single broad act with a HR and Equal oppos commission to enforce the law

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9
Q

Human rights and equal oppo commission

A

Intended to be a powerful dispute resolution body with powers to hear complaints about human rights violations and make legally binding rulings

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10
Q

What happened to HREOC

A

It’s judicial powers were struck down by the Brandy v HREOC 1995 case

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11
Q

Details of brandy case

A

Judged that HREOC was not a chapter 3 court and therefore could not exercise judicial power thus weaking the power of HREOC and the protection of HR in AUS

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12
Q

Why is seeking redress for HR violations hard now

A

There is court like body exercising judicial power in matters relating to HR so must seek redress in a normal court system which is time consuming and costly

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13
Q

Who administers the HR laws

A

Australian human rights commission

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14
Q

Aus HR commission

A

Administer the law through appointed commissioners who address HR violations

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15
Q

How does AUS HR administer the law

A

Use conciliation to address matters which is a non legally binding lest costly agreement

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16
Q

Parliamentary join committee on human rights Job

A

Standing committe with the purpose of scrutinising all legislation and delegated legislation introduced parliament for compatibility with seven international convenants

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17
Q

3 egs of HR statute law

A

Racial Discrimination Act 1975
Sex Discrim ACt 1983
Age Discrim act 2004

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18
Q

How does the PJCHR achieve its role

A

Publishes a scrutiny report to both houses alerting them to any human rights concerns contained within bills and regulations

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19
Q

What does PJCHR help to do

A

Helps to maintain the status of international covenants protocals and treaties signed by AUS

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20
Q

Refugee convention and PJCHR

A

Is not included in the list which the committee refers to when scrutinising thus the current migration act which allows the detention of asylum seekers offshore is not subject to scrutiny

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21
Q

Proticols defo

A

Are optional additional treaties related to original international human right covenants and conventions

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22
Q

Optional protocols

A

Must be signed ratified and then enforced and will often go into specific detail concerning the implementation of conventions and covenants

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23
Q

Eg of Optional protocol

A

OPTIONAL PROTOCOL TO THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DESCRIM AGAINST WOMEN

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24
Q

what does the option protocol for women contain

A

Contains a communications procedure which allows for individuals to make complaints

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25
Q

NT National Emergency response

A

Created in response to the little children are sacred report that highlighted a series of domestic, child and sexual abuse in abo communities in NT

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26
Q

Nickname for NT response

A

The intervention

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27
Q

Making the intervention legal

A

Certain sections of the RDA had to be ammended as without these changes the intervention could be deemed unlawful

28
Q

How did the intervention become legal and what did it show

A

Some rights were suspended which was easy as gov controlled both houses, showing how vulnerable and flexible rights are to government

29
Q

Statutory bill of rights and eg

A

States have sought to overcome the limitations of CMWTH Law by enacting their own BOR
eg The charter of HR and Responsibilites act 2006 Victoria

30
Q

Vic Charter

A

Promotes 20 basic human rights mostly derived from International Covenants

31
Q

3 basic facts about the Charter

A
  • Requires Vic Parliamant and all public service to consider human rights when developing laws and policies
    Laws must be checked against the charter and a statement of compatibility
  • Parliament can still override the charter must explain why it is passing a law that does not meet the standard of the charter
32
Q

What is covenant/convention the same as

A

International law

33
Q

3 positives of charter

A

Fosters a positive human rights culturs
Increased awareness of HR
Improvement in gov services delivery

34
Q

Main argument for critics against charter

A

Give too much power to judges who are not elected officials

35
Q

How does vic charter counter this argument

A

Parliament only needs to explain why a law doesn’t meet the charter

36
Q

How does only having to explain weaken the charter

A

Limits the power of the judiciary to stand up for human rights and provide real remedies for infringements

37
Q

Remedie limitation Vic charter

A

The charter does provide any remedies rather it is focused on prevention meaning it is limited for someone who is seeking redress

38
Q

Piggyback limitation vic charter

A

No person can bring an action to court using the charter aloe meaning they must piggyback another dispute

39
Q

Eg of charter in action

A

Castles v Secratery to the Department of Justice

40
Q

Who is castles

A

Kimberly castles was serving a prison for serving social security fraud. prior to her imprisonment she had bein receiving IVF treatment to try and get pregnant

41
Q

What did she want to do in jail

A

Receive IVF treatment in jail at her own expense because if after her sentence was served she would become inelegible and thus forgo an oppurtunity at having a child

42
Q

Department of justice response

A

Refused the request saying that prisoners dont have the entitlement to that kind of medical treatment

43
Q

What did castles then do

A

Began a court action on the basis of the vic correction act which states prisionors have access to reasonable medical care and treatment necessary for the preservation of health

44
Q

how did castles piggyback

A

She was already brining an action under the corrections act and thus was able to arhue that she had rights under the charter

45
Q

Decision of the court

A

found that access to health care was a fundamental aspect of human dignity and that the department had not given proper consideration castles human rights thus not complying with the charter

46
Q

Results of the statutory bills of rights

A

Have lead to improvements in gov policy and promoting human rights in its jurisdiction whilst still ensuring the parliamant is the main guarantor of rights

47
Q

Why could QLD be the next state to get a BOR

A

The premier responded to demands of peter willington who she relies on to form government for a parliamentary inquiry into a human rights act

48
Q

Why queensland

A

It is the only state with a unicameral parliament

49
Q

why does a unicameral parliament undermine rights

A

The government is usually the source of hr violations and the upper house has often been able to scrutinise legislation and highlight potential rights issues before they pass .

50
Q

upper house and minorities

A

Often rep minorities more effectively and it usually these minorites that undergo rights violations

51
Q

what has the lack of upper house checks resulted in

A

Worst cases of hr violations in aus history including Mabo and Koowarta, policy brutality

52
Q

where do most common law rights operate

A

at the state level because states have residual power over crim and civil law

53
Q

Common law rights and vulnerability

A

Are vulnearble to executive dominated parliament swhich may respond to easily to populist pressure to be tough on different sorts of crime

54
Q

Tough on crime in AUS

A

Since 2001 AUS has passed a number of statutes criminalising terrorist acts and giving significant power to agencies of the executive to deal with terrorism

55
Q

2 rights affected because of counter terrorism

A

Right to fair trial: Terror suspects cant know evidence against them
Right to presumption of innocence: Terror suspects can be detained in secret without charge for 7 days

56
Q

Sunset clauses in terrorist law

A

Laws contained sunset clauses which automatically limit the duration of a law, inserted because parliament recognised the danger of these laws

57
Q

How does counter terrorism law show the bad of parliamanarinism

A

Shows how a determined executive can persuade parliament into to passing laws that override common law rights. If parliament is in decline relative to the executive how can it be trusted as the guarantor of rights

58
Q

3 recent asylum seeker policies

A

Offshore detention on Nauru and Manus island
No refugee will ever be allowed to settle in AUS
Towing back of boat to their home country

59
Q

What are the policies in breach of

A

In breach of human rights as found by the UN

60
Q

Seeking asylum in other countries is a ?

A

is a human right under the universal declaration of human rights

61
Q

Conditions in detention centres

A

are very poor- reports of rape and abuse and many detainees suffere mental health consequences

62
Q

Journalist and doctors at detention centres

A

Journos banned from travelling to and reporting on

Doctors and camp employees etc face legal prosecution if they speak out about them

63
Q

justification for harsh policies

A

Deter people from attempting the dangerous sea journey and are credited for preventing hundreds of deaths at sea

64
Q

moral dilemma of gov

A

Allow more deaths at sea by accepting people that make it or enforce a brutal message to other

65
Q

What is parliamentarinism intended to create

A

a dialogue between parliament and courts with parliament remaining supreme

66
Q

What do charters do in terms of parliamentarinism

A

Impose constraints on each parliament whilst ensure they remain sovereign i.e constrained parliamentarinism

67
Q

3 limitations to vic charter

A

piggyback
remedie
judiciary

Ligma (19 decks)

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