Chapter Fifteen: Human Rights and how to protect them

Question 1

Human Rights

Answer 1

Human rights are universal, automatic and constant rights that give all people the right to certain entitlements which secure dignity, equality, respect and the ability to make genuine choices about one’s own life.

Question 2

Negative Rights

Answer 2

Negative rights are based on guaranteeing every person a ‘personal sphere’, an area of life in which the government cannot interfere and citizens’ rights would be absolute. This personal sphere is maximised by having small government, thereby minimizing the level of involvement the government has in the ‘public sphere’. Examples of negative rights include the right to life, liberty and the pursuit of happiness, as opens the US constitution.

Question 3

Positive Rights

Answer 3

Positive rights are a modern invention, recognizing that in order to ensure a better society people should have access to services such as education and healthcare and should have equal access to employment. Such rights require government involvement, no other institution has the authority and resources to establish such services, thus positive rights require direct government involvement in society.

Question 4

Harm Principle

Answer 4

The notion that one can enjoy their own negative rights only to the extent to which they do not impede anyone else’s negative rights.

Question 5

Generational rights

Answer 5

A different method from positive and negative to categorise rights, using chronology.

Question 6

First Generation Rights

Answer 6

Rights that emerged during the age of enlightenment such as the right to life and the right to freedom of choice. These are essentially identical to negative rights.

Question 7

Second Generation Rights

Answer 7

Rights that emerged in the 20th century as western society became more socially progressive and wealthy, such as the right to education and the right to healthcare. These are essentially identical to positive rights.

Question 8

Third Generation Rights

Answer 8

Third generation rights have only recently emerged, and refer to rights of groups, such as indigenous land rights or rights for minorities to continue their religious practices.

Question 9

Civil Rights

Answer 9

Civil rights are a broad category of rights which aim at protecting people from discrimination and ensuring they can live free lives within their communities. They include the right to speech, press and conscience.

Question 10

Political Rights

Answer 10

Political rights can be regarded as a subset of civil rights, and empower people to participate in their own government equally and fairly. The right to vote, the right to run for office and the right to peaceful protests are examples.

Question 11

Economic Rights

Answer 11

Economic rights ensure that everyone is entitled to a minimum standard of living, that everyone’s material needs are met and that people can have the right to earn a living. These include the right to own property, work, earn a minimum wage and trade.

Question 12

Social Rights

Answer 12

Social rights are aimed at achieving mental wellbeing, and ensure that everyone can develop their own social life the way they wish. The right to marry, to have children and to move within and between countries are examples of social rights.

Question 13

Cultural Rights

Answer 13

Cultural rights usually are aimed at specific sets of people, such as indigenous people or migrants. They ensure that these people can continue to practice their own cultural traditions within the wider community in peace.

Question 14

Legal Rights

Answer 14

Legal rights apply to people accused of wrongdoing within society in either criminal or civil proceedings, and ensure people are granted a fair chance to explain themselves and justify whether or not they think they have done wrong. Civil remedies and criminal sanctions may revoke certain human rights; legal rights ensure that this is only done in circumstances which warrant suspension of rights. These include the right to remain silent, the right to the presumption of innocence and the right to a fair trial.

Question 15

Superior Law

Answer 15

Refers to law which outranks and overrides other types of law, such as constitutional law. Can also be referred to as fundamental law.

Question 16

United Nations

Answer 16

The world’s largest and most influential international organization, which has a significant role in maintaining and upholding international law and human rights.

Question 17

Security Council

Answer 17

The most powerful body within the United Nations, which can decide to quickly make resolutions authorising the UN to take action, including military action, to potentially prevent human rights abuses.

Question 18

UN Human Rights Council

Answer 18

The UN Human Rights Council, (UNHRC) has a membership of 47 countries and is dedicated to the protection of human rights. The UNHRC has the power to send investigators to certain areas around the world to report on suspected human rights abuses, and the UN can then choose to make further decisions on these reports.

Question 19

UN High Commissioner for Refugees

Answer 19

A special agency within the UN that focuses on protecting the rights of refuges and asylum seekers. It has criticised Australian in the past for its refugee policy.

Question 20

International Court of Justice

Answer 20

The main court within the UN, aimed at settling disputes between countries, but can also sometime be involved in cases with human rights abuses.

Question 21

International Criminal Court

Answer 21

A UN court which has a great focus on hearing cases of human rights abuses and sanctioning those involved, mainly high ranking leaders who have committed grave crimes such as genocide and war crimes.

Question 22

Bill of Rights

Answer 22

A Bill of Rights is either a constitutional or a statutory collection of rights which are subject to the same characteristics of either statutory or constitutional law, but sometimes have special processes incorporated into them to protect rights. Australia is the only liberal democracy to have no bill of rights at the national level, however Queensland and Victoria both have state level bills of rights.

Question 23

Judicial Supremacism

Answer 23

A situation in which the judiciary is superior with respect to a certain type of law, in this case rights laws and bills of rights. Under this idea the judiciary is usually able to strike down law which is incompatible with the defined rights in a system.

Question 24

Parliamentarianism

Answer 24

A situation in which the Parliament has the ultimate law making authority. With respect to rights, this means that the Parliament can override rights by introducing conflicting laws if they wish, because such is the will of the Parliament and therefore the people.

Question 25

Explain the term ‘tyranny of the majority’ in relation to liberalism and democracy

Answer 25

One of the key principles of a liberal democracy is popular sovereignty, the idea that the people control the affairs of the state and can always keep check on elected politicians. However, in a liberal democracy this principle must work in tandem with the philosophy of liberalism, that every citizen is granted rights and protection from the government. This prevents a so called ‘tyranny of the majority’ in which power is expressed completely democratically but the majority choose to persecute the minority. This is not a liberal democracy, Ancient Athens is an example of this type of democracy, where minorities were very vulnerable to persecution through the numbers of the majority. In order to prevent this from happening, citizens as well as non-citizens within a liberal democracy must be granted certain rights to protect them from raw democracy.

Question 26

Explain how the principle of ‘liberalism’ relies on the protection of negative rights

Answer 26

Liberalism is the philosophy that everyone is entitled to their own personal sphere in life in which they can independently pursue their own goals and wellbeing. This right to one’s own private life is achieved through the guarantee of negative rights, which oblige a government to take no action to prevent someone from having their own personal sphere. For example, the right life is a negative right which the government cannot interfere with, unless of course capital punishment exists in a society, where this negative right is then suspended. In this case, the right is suspended only in the case of when a person’s enjoyment of their own rights impedes on someone else’s. This is known as the harm principle, and is the basis to which someone can enjoy their own negative rights. Pure liberalism sees the government take action only to ensure that negative rights are ensured and protected, through a police, army service and judiciary for instance. Everywhere else, the government should essentially stay out of everyone’s way, a principle which is referred to as small or limited government. The Liberal Party of Australia loosely represents this policy.

Question 27

How do positive rights reflect the modern principle of big government?

Answer 27

People in the modern world began to realise that everyone should be entitled to services such as healthcare, education and equity of job access. Such rights could not be left to oneself to administer however, they require complex organization and significant resources. Thus the government is obliged to provide services in order to fulfil these positive rights, and therefore needs to grow out of the philosophy of liberalism in order to strengthen government so it can provide the best services to everyone. This increasing size, both in authority and resources, is known as big government. The ALP in Australia reflects the principle of big government. Liberal democracies maintain a balance of small and big government, ensuring that the government has little involvement in someone’s personal sphere but also that people are guaranteed good quality positive rights.

Question 28

Explain how some rights may conflict and what the consequences of this is

Answer 28

Certain third generation rights can be controversial because they conflict with other first and second generation rights. Some cultural practices, such as child marriage and female genital mutilation, seemingly conflict with first generation rights of girls, however these are established cultural practices within certain communities, and some critics say that it is not up to one culture to decide on the morality of another culture. In Australia, a diverse country with many different culture groups, conflicting rights exist and all conflicts are dealt with through existing political and legal systems.

Question 29

What are the different categories that human rights are classified into?

Answer 29

• Political rights
• Social rights
• Economic rights
• Civil rights
• Cultural rights
• Legal rights

Question 30

What are the four principles that must be applied to human rights?

Answer 30

Rights must include the four following principles in order for them to be properly granted within a society:
Universal: Human rights apply uniformly to all human beings, regardless of race, gender, wealth, ethnicity, religion, age, disability or any other characteristic.
Interdependent: For any right to be enjoyed, they must be enjoyed in conjunction with all the others. To suspend or diminish one right is to suspend or diminish all the others and someone’s collective human rights.
Indivisible: Rights cannot be ranked in order of importance and cannot be partially granted, they are all as equal as each other and to infringe upon any part of a right is to infringe upon someone’s human rights.
Inalienable: Someone cannot be separated from their human rights. The only exception is through law carried out with due legal rights on the account of someone committing a crime.

Question 31

What are the different ways that rights can be protected?

Answer 31

Rights can be protected in a number of ways, however in order to be effective rights need to be implemented in some kind of law. This ensures that they follow the principle of the rule of law, which is the only want to grant everyone equal rights. Rights protected through law come from the following sources:
•	Superior Law 
o	Constitutional law
•	Ordinary Law
o	Statute law 
o	Common law
•	International laws
•	Bills of rights 
Different countries use differing amounts of these different methods to ensure rights exist and are upheld, which is essential for the existence of a liberal democracy.

Question 32

Explain how rights can be protected through constitutional law

Answer 32

Rights that are protected in constitutional law are usually civil and political rights, and can either be specifically listed or implied. Rights that are embedded into constitutions are very strongly protected, because constitutions by their nature are very difficult to change, refer to the difficulty of referendums succeeding in Australia. Constitutional law binds all government, the executive, legislature and the judiciary.

Question 33

List the advantages and disadvantages of rights protected in constitutional law

Answer 33

Advantages:
• Constitutional law is very difficult to change, which means that government policy cannot contradict or infringe upon any constitutional rights.
• The judiciary is empowered to interpret the constitution in most jurisdictions, which means the judiciary can abolish laws which conflict with constitutional rights. The judiciary thus protects constitutional rights strongly because of their independence and also history of protecting rights.
• Judges can interpret implied rights within constitutions, which expands the rights that people are entitled to. This usually requires an activist approach, and can often be controversial.
Disadvantages:
• The fact the rights are evolving and adapting means that they often need to be changed, which cannot be easily done in constitutional law. For example, the US has had much difficulty trying to control gun laws since the right to bear arms is included in article two in their constitution.
• Rights that are placed in a constitution are often listed, and lists are by their nature exhaustive. Rights that are left out are either not included, or are included by vague wording and are thus deemed less important and are less protected.
• Judicial supremacism is also a concern of some, that constitutional law gives too much power to unelected judges when striking down legislation.

Question 34

Explain how rights can be protected through statute law

Answer 34

Statute law is passed through elected parliaments, and can therefore be seen to represent the will of the people. They bind governments and courts to abide by any rights within them, however they can be altered by different parliaments.

Question 35

Statute law is passed through elected parliaments, and can therefore be seen to represent the will of the people. They bind governments and courts to abide by any rights within them, however they can be altered by different parliaments.

Answer 35

Advantages:
• Statute law is the most powerful form of right protection after constitutional law, and compels the judiciary and the public service to conform with selected rights.
• A parliament can pass and amend statutes at will, which allows them to be flexible and alter rights as they seem fit to meet changing standards.
• Statues are interpreted by the independent courts, which ensures that they are applied fairly to a range of different situations
Disadvantages:
• Statutory laws can be changed or removed by different Parliaments, which means that rights can be easily suspended or diminished. This is more often the case in systems which have an executive dominated legislature, such as the United Kingdom.
• Rights in statutory laws are listed, which encounters problems with exhaustive lists
• Statutory laws are also interpreted by the judiciary, so arguments that judges are given too much power apply here as well

Question 36

Explain how rights can be protected through common law

Answer 36

Common law is made through judges interpreting Parliamentary statutes and is bound to other courts through the doctrine of precedence. It is inferior to statutory law and can be overridden by Parliament. Most common-law rights are legal rights, such as the right to the presumption of innocence and the right to a fair trial.

Question 37

List the advantages and disadvantages of rights protected in common law

Answer 37

Advantages:
• Common law is the most flexible way to protect rights, they can evolve on a case by case basis and can be overridden by Parliament at any time
• Common law rights are engrained in the history of the judiciary, they evolved over time to protect those within the legal system and the judiciary has a strong history of developing and upholding these rights.
Disadvantages:
• The vulnerability of common law rights is their greatest disadvantage. Executive dominated Parliaments are especially prone to manipulation of rights. These changes are often made due to populist pressure, such as ‘tough on crime’ policies which suspend or infringe upon certain human rights in order to better be able to deal with criminals or terrorists.

Question 38

Explain how rights can be protected through international law

Answer 38

International law is made between two nations or a collection of nations in an international organisation. International law has no domestic standing if it has only merely been signed and agreed upon by a nation. In order for it to have effect, it needs to be ratified through a state’s legislature.

Question 39

List the advantages and disadvantages of rights protected in international law

Answer 39

Advantages:
• International rights promote the adoption of uniform rights across the whole world, and allow Australia to boost its international standing as a protector and promoter of rights
Disadvantages:
• International law is by itself weightless, since it cannot be enforced. When it is ratified in Parliament it is introduced as part of statutory law, but ratification can sometimes include only parts of a specific right or sets of rights.

Question 40

What are the main bodies within the United Nations that can protect human rights?

Answer 40

The main bodies within the UN that protect rights are:
• The Security Council
• The UN Human Rights Council
• The UN High Commissioner for Refugees
• The International Court of Justice
• The International Criminal Court
All of these bodies play a role in promoting and upholding human rights around the world, however, with the exception of some international court decisions, these bodies cannot interfere in the affairs of a sovereign nation which makes their ability to protect human rights significantly weakened.

Question 41

Describe the process by which international human rights laws become part of domestic law and enforceable

Answer 41

1. International laws are drafted and announced within international organizations, such as the UN. The most famous has been the Universal Declaration of Human Rights in 1948.
2. The executives of nations sign the agreement, usually done by the foreign minister. The agreements become international law but do not have any standing in Australia yet.
3. A signed international agreement must be ratified by the legislature, not the executive, in order for it to be put into force as domestic law. This means that, in the case of Australia, both houses must pass the ratification bill. The right to ratify any international agreement is given to the Parliament by section 51 (xxix), the external affairs power.
4. Any new law must be enforced, but in the case of a rights law the Parliament may set up a special executive agency to administer the new law. The agency might have certain powers under the act which created it, such as the Australian Human Rights Commission and the Race Discrimination Commission.

Question 42

Give an example of an international agreement which turned into a statute law within Australia

Answer 42

The Convention on the Elimination of All Forms of Racial Discrimination was passed in the UN in 1965. Upon its adoption, it was signed by the Australian government, but it was only ratified in 1975 with the passing of the Racial Discrimination Act. The act is administered by the Human Rights Commission and the Race Discrimination Commissioner.

Question 43

Explain the relation of the ratification of international agreements to federalism

Answer 43

The section 51(xxix) external affairs power as designated by the Koowarta case in 1982 essentially allows the federal government to pass any law which is a ratification of an international agreement. This has significant implications for the federal balance, since adopting more human rights in international agreements takes away the legislative power of the state governments to legislate with respect to these rights.

Question 44

Explain how a Bill of Rights is subject to either judicial supremacism or Parliamentarianism

Answer 44

A Bill of Rights either has to be subject to change by the Parliament or protected by the judiciary. Constitutional bills of rights are always subject to judicial supremacism, since the judiciary has jurisdiction in areas of constitutional law, however statutory bills of rights are usually subject to Parliamentarianism unless specially created to give power to the courts. The US is an example of a country which includes a bill of rights that is administered under judicial supremacism. Traditional British and Australian rights have existed under Parliamentarianism, the idea that the Parliament can change those laws at any time because they are popularly sovereign.

Question 45

How has the idea of ‘constrained Parliamentarianism’ evolved in the modern Australian system?

Answer 45

‘Constrained Parliamentarianism is seen as a compromise between parliamentarianism and judicial supremacism. The Victorian and ACT state bills of rights and the UK Human Rights Act 1998 are examples of constrained parliamentarianism; the courts can issue declarations of incompatibility with legislation that seemingly does not abide by the defined human rights. The issue is then forced, Parliament must either change the law or explain why they feel the breach is necessary, a decision which is held accountable by the people.