CH 16 Jobby Flashcards
Fuck off politics
How was Australia created
Through democratic processes and with the consent of colonial power in Britain. The process was peaceful and gradual
How does creation affect role of gov AUS
Means government has always been an active and progressive force in Australia
How was USA created
Fought a war on independence in which britain was activiley hostile to
How does creation affect role of gov USA
Americans have always been suspicious of government preferring to check its power and let individua enterprise develop the nation
How does creation affect rights
Resulted in very different views on rights and how to protect them
How many express rights in AUS con + give 2 eg’s
5
S80 right to trial by jury
s116 right to freedom of religion
eg of 1 implied right
Nationwide News V Wills 1992 implied right to pol comm
Human Rights and Equal Oppurtunity Act 1986
The cmwth parliament attempted to enact a single broad act with a HR and Equal oppos commission to enforce the law
Human rights and equal oppo commission
Intended to be a powerful dispute resolution body with powers to hear complaints about human rights violations and make legally binding rulings
What happened to HREOC
It’s judicial powers were struck down by the Brandy v HREOC 1995 case
Details of brandy case
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
Why is seeking redress for HR violations hard now
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
Who administers the HR laws
Australian human rights commission
Aus HR commission
Administer the law through appointed commissioners who address HR violations
How does AUS HR administer the law
Use conciliation to address matters which is a non legally binding lest costly agreement
Parliamentary join committee on human rights Job
Standing committe with the purpose of scrutinising all legislation and delegated legislation introduced parliament for compatibility with seven international convenants
3 egs of HR statute law
Racial Discrimination Act 1975
Sex Discrim ACt 1983
Age Discrim act 2004
How does the PJCHR achieve its role
Publishes a scrutiny report to both houses alerting them to any human rights concerns contained within bills and regulations
What does PJCHR help to do
Helps to maintain the status of international covenants protocals and treaties signed by AUS
Refugee convention and PJCHR
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
Proticols defo
Are optional additional treaties related to original international human right covenants and conventions
Optional protocols
Must be signed ratified and then enforced and will often go into specific detail concerning the implementation of conventions and covenants
Eg of Optional protocol
OPTIONAL PROTOCOL TO THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DESCRIM AGAINST WOMEN
what does the option protocol for women contain
Contains a communications procedure which allows for individuals to make complaints
NT National Emergency response
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
Nickname for NT response
The intervention
Making the intervention legal
Certain sections of the RDA had to be ammended as without these changes the intervention could be deemed unlawful
How did the intervention become legal and what did it show
Some rights were suspended which was easy as gov controlled both houses, showing how vulnerable and flexible rights are to government
Statutory bill of rights and eg
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
Vic Charter
Promotes 20 basic human rights mostly derived from International Covenants
3 basic facts about the Charter
- 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
What is covenant/convention the same as
International law
3 positives of charter
Fosters a positive human rights culturs
Increased awareness of HR
Improvement in gov services delivery
Main argument for critics against charter
Give too much power to judges who are not elected officials
How does vic charter counter this argument
Parliament only needs to explain why a law doesn’t meet the charter
How does only having to explain weaken the charter
Limits the power of the judiciary to stand up for human rights and provide real remedies for infringements
Remedie limitation Vic charter
The charter does provide any remedies rather it is focused on prevention meaning it is limited for someone who is seeking redress
Piggyback limitation vic charter
No person can bring an action to court using the charter aloe meaning they must piggyback another dispute
Eg of charter in action
Castles v Secratery to the Department of Justice
Who is castles
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
What did she want to do in jail
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
Department of justice response
Refused the request saying that prisoners dont have the entitlement to that kind of medical treatment
What did castles then do
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
how did castles piggyback
She was already brining an action under the corrections act and thus was able to arhue that she had rights under the charter
Decision of the court
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
Results of the statutory bills of rights
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
Why could QLD be the next state to get a BOR
The premier responded to demands of peter willington who she relies on to form government for a parliamentary inquiry into a human rights act
Why queensland
It is the only state with a unicameral parliament
why does a unicameral parliament undermine rights
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 .
upper house and minorities
Often rep minorities more effectively and it usually these minorites that undergo rights violations
what has the lack of upper house checks resulted in
Worst cases of hr violations in aus history including Mabo and Koowarta, policy brutality
where do most common law rights operate
at the state level because states have residual power over crim and civil law
Common law rights and vulnerability
Are vulnearble to executive dominated parliament swhich may respond to easily to populist pressure to be tough on different sorts of crime
Tough on crime in AUS
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
2 rights affected because of counter terrorism
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
Sunset clauses in terrorist law
Laws contained sunset clauses which automatically limit the duration of a law, inserted because parliament recognised the danger of these laws
How does counter terrorism law show the bad of parliamanarinism
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
3 recent asylum seeker policies
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
What are the policies in breach of
In breach of human rights as found by the UN
Seeking asylum in other countries is a ?
is a human right under the universal declaration of human rights
Conditions in detention centres
are very poor- reports of rape and abuse and many detainees suffere mental health consequences
Journalist and doctors at detention centres
Journos banned from travelling to and reporting on
Doctors and camp employees etc face legal prosecution if they speak out about them
justification for harsh policies
Deter people from attempting the dangerous sea journey and are credited for preventing hundreds of deaths at sea
moral dilemma of gov
Allow more deaths at sea by accepting people that make it or enforce a brutal message to other
What is parliamentarinism intended to create
a dialogue between parliament and courts with parliament remaining supreme
What do charters do in terms of parliamentarinism
Impose constraints on each parliament whilst ensure they remain sovereign i.e constrained parliamentarinism
3 limitations to vic charter
piggyback
remedie
judiciary
