CH15 Rights AOS3

Question 1

What is a right?

Answer 1

A moral or legal entitlement to have or do something that promotes and upholds the dignity of all people that can be classified as a basic freedom.

Question 2

List the 5 fundamental freedoms of Australian people

Answer 2

Freedom of speech, association, assembly, religion, and movement.

Question 3

The ‘Universal Declaration of Human Rights 1948’

Answer 3

Enacted after WW2 and is a deceleration that sets out the most basic human rights that all nations and governments, including Australia, should strive to promote and uphold.

Question 4

List the ways the rights of Australians are protected

Answer 4

Australian rights are protected through statute law, common law, and the Australian constitution.

Question 5

How are the rights of Australians protected through statute law?

Answer 5

The Commonwealth state and territory parliaments have passed Acts (legislation) to protect a wide range of rights, including passing legislation to uphold international treaties. For example the right to privacy which is protected through the Privacy and Data Protection Act 2014 (Vic).

Question 6

How are the rights of Australians protected through common law?

Answer 6

Australian courts have enforced various rights in their judgements and precedents (e.g. the right to silence, and the right to a fair trial).

Question 7

How are the rights of Australians protected through the Australian Constitution?

Answer 7

Protects a limited number of rights but guarantees five express rights of the Australian people which are specifically written in the constitution.

Question 8

Statute law

Answer 8

Laws that are passed through both houses of parliament and become legislation.

Question 9

Act of parliament

Answer 9

A law made by parliament that is a bill that has passed through parliament and has received royal assent.

Question 10

Common law

Answer 10

The body of law that is made up of all the judgments (or decisions) of superior courts over time, also known as judge-made law for this reason.

Question 11

Precedent

Answer 11

The rule that a legal principle that has been established by a superior court should be followed in other similar cases by that court and other courts. The doctrine of precedent was developed to promote consistency in decision-making by judges, on the basis that like cases should be determined in a like manner.

Question 12

Signatory

Answer 12

A state or organisation that has signed an international treaty to demonstrate a nation’s intent to adopt the treaty and incorporate it into their law.

Question 13

International treaty

Answer 13

A legally binding agreement between countries or intergovernmental organizations, in which they undertake to follow the obligations set out in the agreement and include them in their own local laws.

Question 14

Ratification

Answer 14

When a signatory nation must specifically and expressly pass legislation that requires it by law to adopt the various rights and responsibilities set out in the treaty.

Question 15

To what extent are international treaties binding?

Answer 15

Although being a signatory to an international treaty demonstrates the intention of the Commonwealth Government it is not enough to make its rights and standards part of the signatory nation’s law. The various rights outlined in the treaty must be ratified.

Question 16

Human rights charter (The Charter of Human Rights and Responsibilities Act 2006)

Answer 16

To protect and promote human rights through a comprehensive list of the basic rights of the Australian people through an outline of 20 basic rights that belong to Victorian people and helps to ensure the legal system achieved justice.

Question 17

Identify 2 strengths of statute law in protecting rights

Answer 17

Parliament has the ability to pass laws quickly if there is a need to promptly protect additional rights;

Rights contained in statutes are generally enforceable and need to be recognized by government organizations;

Question 18

Identify two limitations of statute law in protecting rights

Answer 18

As the supreme law-making body, parliament can amend statutes, so rights may become limited or no longer exist;

Parliament can include limitations or restrictions in statutes so protected rights are not always absolute;

Question 19

Common law rights

Answer 19

When a judge gives their decision in a human rights dispute, they may establish a precedent that protects that right. Therefore legal rights that are established in this way are referred to as common law rights.

Question 20

Ultra vires

Answer 20

A Latin term meaning a law made beyond the powers of parliament.

Question 21

How can courts protect the rights of Australian people?

Answer 21

By using their power to declare that Acts are invalid if they are made outside or beyond the parliament’s law-making powers (i.e. ultra vires). The High Court can also declare legislation to be invalid if the Act breaches a right protected by the Australian Constitution.

Question 22

Codification

Answer 22

To collect all laws on one topic together into a single statute.

Question 23

Abrogation

Answer 23

To cancel or abolish a court-made law by passing an Act of Parliament.

Question 24

How does codification uphold rights of Australians?

Answer 24

Precedents that establish or uphold human rights can be codified by parliament meaning that parliament passes legislation that reinforces the legal principles established by a court.

Question 25

How does abrogation uphold rights of Australians?

Answer 25

Parliament may be able to abrogate (cancel) human rights that have been established in common law.

Question 26

Identify two strengths of common law in protecting rights?

Answer 26

Courts can make decisions to establish rights in areas where parliament has not established rights;

Courts are independent of parliament and can establish precedents free from political pressures;

Question 27

Identify two limitations of common law in protecting rights?

Answer 27

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;

Question 28

The Australian Constitution

Answer 28

Formally known as the Commonwealth of Australia Constitution Act 1900and it outlines the structure and law-making powers of the Commonwealth Parliament, and the Constitution and also establishes some basic rights for Australian citizens through express and implied rights.

Question 29

Express rights

Answer 29

Rights that are stated in the Australian Constitution that is entrenched meaning that they can only be changed by a referendum.

Question 30

Referendum

Answer 30

The method used for changing the wording of the Australian Constitution which requires a proposal to be approved by the Australian people in a public vote by a double majority.

Question 31

Double majority

Answer 31

A referendum is only passed if it is approved by a majority of voters across the nation and a majority of voters in a majority of states (i.e. at least four states).

Question 32

How does the Australian Constitution protect rights?

Answer 32

The Australian Constitution protects five express rights of the Australian people.

Question 33

Implied rights

Answer 33

Rights that are not expressly stated in the Australian Constitution but are considered to exist through interpretation by the High Court.

Question 34

Provide 3 examples of the express rights protected by the Australian Constitution

Answer 34

The right to freedom of religion (section 116), The right to a trial by jury for indictable Commonwealth offences (section 80), and The right to free interstate trade and commerce (section 92).

Question 35

How are implied rights used to protect rights in the Constitution?

Answer 35

The High Court justices can decide that a word or phrase within the Constitution implies that a right exists even though it might not explicitly be stated. For example freedom of political communication.

Question 36

What happens if a law is declared invalid by the High Court?

Answer 36

Amend the legislation to remove the unconstitutional sections;

Try to change the Constitution by holding a referendum or public vote (which is the only way wording in the Constitution can be changed according to section 128);

Question 37

Identify two strengths of the Australian Constitution in protecting rights

Answer 37

Express rights cannot be changed unless through a referendum;

All rights protected by the Constitution are fully enforceable through the High Court, and any statute found to breach those rights can be declared invalid;

Question 38

Identify two limitations of the Australian Constitution in protecting rights

Answer 38

Rights contained in the Constitution are difficult to change due to the referendum process;

The High Court cannot interpret the meaning of the Constitution and declare an infringement of rights until a case is brought before it;

Question 39

International treaties

Answer 39

A legally binding agreement between countries or organizations in which they adopt or incorporate the requirements and conditions of the treaty into the nation’s law through ratification.

Question 40

International declarations

Answer 40

A non-binding agreement between countries that sets out the aspirations or intentions of the parties to the agreement. A declaration can lead to a treaty being made on the topic.

Question 41

List the various bodies that monitor nations’ compliance with treaties

Answer 41

International Court of Justice(ICJ), Office of the High Commissioner for Human Rights (OHCR), and International human rights committees.

Question 42

International Court of Justice(ICJ)

Answer 42

Established to resolve legal disputes between nations that are members of the United Nations and may consider the extent to which a country has violated provisions of a human rights treaty. A nation cannot be compelled to attend the International Court of Justice making this a limitation of the ICJ.

Question 43

Office of the High Commissioner for Human Rights (OHCR)

Answer 43

Established to encourage nations to uphold their commitments under various human rights treaties by offering education and assistance to member nations. The OHCR set up a system to review and highlight areas where breaches of human rights have occurred called the Universal Periodic Review.

Question 44

International human rights committees

Answer 44

Established to monitor nations’ compliance with treaties and to encourage nations that may be breaching a treaty to implement changes and comply with it.

Question 45

Constitutional charter

Answer 45

Rights are entrenched within the constitution, meaning they are express rights, therefore, can only be removed or altered by changing the constitution through a referendum.

Question 46

Statutory charter

Answer 46

This act is not part of a nation’s constitution but is a separate statute that can be changed by the parliament at any time.

Question 47

Law reform

Answer 47

The process of constantly updating and changing the law so it remains relevant and effective.

Question 48

Statutory approach

Answer 48

The protection o rights through passing Acts of Parliament.

Question 49

Identify 2 arguments in favor of adopting a charter or bill of rights

Answer 49

Improve Australia’s international image;

Make the government in Australia more accountable for the improvement of rights legislation and the provision of services to uphold the rights;

Question 50

Identify 2 arguments against adopting a charter or bill of rights

Answer 50

The basic rights of Australians are already adequately protected by hundreds of Acts at both the state and Commonwealth levels;

Australia has already adopted and ratified many international human rights treaties and optional protocols that protect a vast range of human rights;

Question 51

List 3 reforms that work in the protection of Australian rights

Answer 51

Introducing a national charter or bill of rights;

Providing increased statutory protection for minority groups;

Providing greater access to legal aid and assistance;

Question 52

Terra nullius

Answer 52

A false common law principle that was used by the British people to declare that Australia belonged to no one when they first arrived in Australia to establish a colony.

Question 53

Test case

Answer 53

A legal action undertaken with the aim of having the court establish a legal principle or precedent that can be followed for future similar cases.

Question 54

Native title

Answer 54

The legal recognition of the right of Aboriginal and Torres Strait Islander people to be the owners of land and waters based on their traditional ownership of the land which existed before the British colonisation of Australia.

Question 55

Locus standi

Answer 55

A Latin term meaning ‘standing in a case’ meaning the issues or matters in the case directly affect them.

Question 56

Writ

Answer 56

The first legal document filed by the plaintiff to start a civil proceeding in court. It explains the action being taken against the defendant and the place and model of the trial.