HR: In Australia - Promoting and Enforcing Human Rights

Question 1

process of how are human rights incorporated into domestic law?

Answer 1

• dualist system
• the government must pass laws that reflect treaty
• sign, ratify, enact

Question 2

What approach does Australia take?

Answer 2

Piecemeal approach

Question 3

what are the sources for Australia?

Answer 3

• common law
• statute law
• constitution

Question 4

what are the two important roles of the Constitution?

Answer 4

• lays down a system of government through which HR is recognised
• source of some specific human rights (expressed and implied)

Question 5

what are the negatives of the Constitution regarding HR?

Answer 5

• not made to protect rights > not many rights listed
• expensive to get HCA to challenge rights
• most people are unaware
• few remedies available for rights

Question 6

examples of express rights?

Answer 6

• S80 > right to a jury (serious federal offences)
• S116 > freedom of religion

Question 7

example of implied right?

Answer 7

s80 right to a jury implies the right to a fair trial which implies the right to legal representation

right to political communication

Question 8

example of a case utilising implied rights?

Answer 8

Dietrich V Queen: Right to a fair trial/limited right to legal representation

Question 9

what is the division of powers?

Answer 9

divides powers of the commonwealth and the state (divide = by two)

Question 10

what are exclusive powers? and an example

Answer 10

powers held just by the commonwealth. eg. treaties

Question 11

what are residual rights? and an example

Answer 11

powers held by the state only. eg education

Question 12

what are concurrent powers? and an example

Answer 12

powers held by both the commonwealth and the state. eg. taxes

Question 13

how does the division of powers protect HR?

Answer 13

• ensuring power is not too centralised
• states can create laws to uphold HR for their own people
• S109 federal laws prevail over state creating consistency

Question 14

what are the negatives of the division of powers?

Answer 14

• cth expanding due to increasing treaties (increasing power)
• cth overshadows state

Question 15

what is the separation of powers? and what does it do?

Answer 15

• separation of powers between the judiciary, parliament, and executive government

Question 16

how does the separation of powers work?

Answer 16

• shows how we separate legal institutions
• each group keeps a check on each other so no group has too much power

Question 17

What are the positives of separation of powers regarding HR?

Answer 17

• legislature can make laws to protect HR eg. anti-terrorism laws
• creates the HCA which can enforce HR

Question 18

Negatives of the separation of powers regarding HR?

Answer 18

PM and ministers in both legislative and executive

Question 19

what is statute law?

Answer 19

law passed by parliament and is the main way HR is protected

Question 20

positives of statute law?

Answer 20

• can be enforced by courts
• legislation protecting HR
• if rights feel taken away, gov can be voted out
• new laws can always be created

Question 21

examples of legislation protecting HR statute law?

Answer 21

Criminal Code Act 1995 cth
Residential Tendencies Act 2024 amendment (NSW)

Question 22

negatives of statute law?

Answer 22

government can remove rights by amending acts and can create laws against HR (terrorism laws)

Question 23

how does common law protect HR?

Answer 23

judges protect HR when hearing case by case and setting precedent

Question 24

what are some human rights that come from common law?

Answer 24

• right to legal representation (Dietrich v the Queen HCA - fair trial)
• presumption of innocence
• right to procedural fairness

Question 25

positives of common law?

Answer 25

• judges are not elected therefore less likely to cave to public pressure
• interpret constitution

Question 26

negatives of common law?

Answer 26

• unless a case, courts cant protect HR and HCA has limited access
• courts must follow the doctrine of precedent
• statute overrules

Question 27

What is the charter of rights?

Answer 27

is a document which sets out the basic rights to which every human should be entitled in a country

Question 28

What are the ways Australia has a charter of rights?

Answer 28

• statute law > can be taken away
• constitution > can only be changed by referendum

Question 29

for Charter of Rights>

Answer 29

• centralise HR
• aus has a problem with accessing HR
• standards for HR and recognition
• give people the right to enforce rights in court

Question 30

Against the charter of rights?

Answer 30

• not necessarily ensure better human rights
• if constitutional, judges would make decisions and no way to get rid of them
• could clog up the court system

Question 31

What does the High Court have the power to do?

Answer 31

• set binding precedent and interpret the Constitution. eg. Wei Tang case redefined slavery
• declare a state or cth legislation invalid. eg strike down law making communism party illegal

Question 32

the high court implied rights?

Answer 32

• constitutional right to freedom of political communication (Lange v ABC 1997)
• the right to a fair trial through legal representation (Dietrich v the Queen)