Chapter 15 Flashcards
Explain what it meant by ‘tyranny of the majority’
The majority of a population agreeing with the discrimination/ persecution of an unpopular minority.
Discuss the link between majority rule and the protection of minorities
The onus is on the majority to protect the minority
Define ‘human rights’
Universal claims to certain freedoms and to certain entitlements which ensure dignity, equality, respect and the ability to make genuine choices about one’s own life.
Explain what is meant by the term ‘negative rights’ and provide some examples
Negative rights oblige a government to take no action against another person that takes away their life or their liberty Eg. right not be killed, injured
What is ‘liberalism’ explain how it relates to a discussion of human rights
The belief that government should have a minimum role in society, and should basically ‘stay out of everyone way’. Often referred to as small government
What are ‘positive rights’ List some examples
Positive rights are the rights to do something or to have something protected. Examples: right to education, right to health, right to be treated equally
Distinguish between first, second and third generation rights
1st- Emerged during Enlightenment, negative rights
2nd - 20th century, positive rights
3rd - group rights, such as aboriginals right to land
Define Civil Rights
A broad category of rights aimed at protecting people from discrimination and empowering them to live full lives within their communities. Eg rights enabling participation in democratic processes
Define Political Rights
A subset of civil rights, empower people to participate in the government of their country
Eg. Right to vote, right to run for political office
Define Economic Rights
The entitlements to a minimum standard of living. They ensure that a person’s material needs are met. Eg. Right to own property, work, earn a minimum wage
Define Social Rights
Rights that enable people to develop and live their life in a way of their choosing, aimed at personal well being. Eg. freedom to choose marriage partner, move about within your country
Define Cultural Rights
Rights that apply to specific cultural groups based on ethnicity, religion or status. Designed to allow people to practice their cultural traditions and to preserve their identities within a wider.
Define Legal Rights
Rights that apply to those accused of wrongdoing and subject to civil/criminal proceedings in courts. The rights of an accused person protect them from the severe consequences of being found guilty. Eg. Custodial prison sentence removes the right to liberty, movement, family, work, participation in government.
List the different ways rights can be protected
Superior laws, Ordinary laws, International laws, Bill of Rights
Why are constitutions are also referred to as ‘superior law’
Constitutions cannot be altered through regular statutory mechanisms, and that they are more powerful than statutory laws, thus are ‘superior’
Superior Laws, advantages and disadvantages
A- Very difficult to change, independent judiciary has the role of ensuring rights, some flexibility of implied rights
D- Difficult to change which leads to outdated rights (Eg. 2nd amendment) and a limited adaptive capacity, Rights not in the constitution are deemed inferior leading to an inequality to the power of rights, significant power given to appointed judges
Ordinary Laws, advantages and disadvantages
A-Flexible (parliament can amend rights easily), courts can review statutes and interpret them
D- Less protected than Superior laws, govs control the limits on govs leading to a conflict of interest (Intervention)
Common laws, advantages and disadvantages
A- Most flexible and can be altered by parliament, courts have a strong tendency to protect rights (predisposed to protect rights Eg. Koowarta)
D- Vulnerable to the will of parliament
International laws, advantages and disadvantages
A- Allows for the adoption of international rights which raises the profile of human rights
D- It is unenforceable on its own, requires ratifying to make it significant, which can be subject to change Eg. Intervention
What are three UN agencies, and outline their roles and their main limitation
-UN Human Rights Council, 47 countries and is an equal forum for promoting rights.
-Office of the High Commissioner of Human Rights, appoints expert investigators that travel to places where human rights abuses may be occurring and investigates them.
-UNHC for refugees, focuses on the human rights of refugees.
These agencies can pass international law and investigate abuses, but cannot directly intervene in the affairs of nations.
Explain the roles of the ICJ and the ICC
International Court of Justice, mostly settles disputes between nations, rarely involving human rights
International Criminal Courts, greater focus on human rights, convicts former national leaders found guilty of human rights abuses and crimes.
Identify the stages that international law must pass before it becomes part of Australian Law, give an example of the process
- UN member states debate on a human rights agreement
- Executive arm of government signs agreement for their country
- Law ratified within nations parliament, under external affairs power (s51 xxix)
- Parliament may set up an agency that will ensure new laws are administered (Eg. Australian Human Rights Commission)
Eg. 1. Convention of the Elimination of All Forms of Racial Discrimination (CERD) signed - CERD ratified using external affairs power, Racial Discrimination Act 1975
- Administered by Australian Human Rights Comissioner
Explain the relationship between international rights, the federal balance of power and constitutional
Parliament passing international laws gives it the ability to expand it’s powers into new areas, as it’s section of the constitution s51 xxix. An example of this is Koowarta 1982, where the Queensland government challenged the validity of the Racial Discrimination act, 1975, which the court found was valid. This means that the HC interpreted the constitution in a way which favours the federal government, and it also highlights how the Commonwealth can promote human rights
What is a bill of rights
A bill of rights can grant the judiciary the power to strike down laws which are incompatible with it. A bill of rights exclusively contain rights, and can be statutory or constitutional
What is ‘judicial supremacism’ and how is it relevant in both the US and Australia
The judiciary in the ultimate position of power with respect to rights, primarily the ability the interpret bills of rights, and as such determining their standing within the legal and political structure of a country. US is judicial, whilst Australia isn’t as much, although still exhibits some judicial supremacist qualities, as we have statutes (racial discrimination act 1982) that are interpreted by HC
What is ‘parliamentarianism’
Parliament, as the peoples legislature, remains sovereign and determines the rights that a country will adhere to, and is the ultimate position of power with respect to rights.
Explain how the concept of ‘constrained parliamentarianism’ has evolved and the mechanism used to achieve this in many political systems.
Because parliamentarianism is no longer the guarantee of rights it once was (Intervention), the concept of ‘constraint’ keeps the executive in check, whilst preserving the role of parliament with respect to rights. A declaratory bill of rights can be used, where the High Court declares breaches in human rights, starting a dialogue. The Victorian Charter of Rights 2006 is an example of this.
