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Human Rights Flashcards

1
Q

Human rights

A

fundamental rights that every human being is entitled to that recognises the inherent value in each person. They are independent and indivisible.

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2
Q

Three categories of human rights

A
  • o 1st generation: civil and political rights that can be found in articles 1-21 of the UDHR (1948) and the ICCPR (1966)
  • 2nd generation: economic, social, cultural rights which can be found in articles 22-30 of the UDHR (1948) and ICESCR (1966)
  • 3rd generation: the rights are international in scope and can only be addressed by global cooperation. The two most prominent of these rights are environmental and peace rights
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3
Q

Developing recognition of human rights

abolition of slavery: background

A
  • Slavery is another type of forced labour in which a person is considered to be the legal property of another, it was an integral part of economy and society
  • The UDHR declared that to enslave someone was a violation of their rights. The abolition of slavery was one of the first successful movements for a globally recognised right.
  • Laws generally treated slaves as objects, rather than subjects of the law.
  • The transatlantic slave trade was the trading of African people by Europeans who transported them as slaves from Africa to the colonies of the New World.
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4
Q

Developing recognition of human rights

Abolition of slavery: development

A
  • The importation of slaves to colonies ended in the British Empire in the passing of the Slave Trade Act 1807 (UK). Slavery in US All US abolished in the 13th amendment to the Constitution 1787 (US).
  • Convention to Suppress the Slave Trade and Slavery (1926), a comprehensive international convention on abolishing slavery worldwide, passed at the end of WW1 by the League of Nations.
  • slavery was prohibited under article 4 of the UDHR.
  • slavery still exists but in different forms
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5
Q

Developing recognition of human rights

Trade unionism and labour rights: pt 1

A
  • The UDHR included labour rights in 2/30 articles. Trade unions first emerged during the industrial revolution in response to appalling conditions and lack of safety.
  • The British Parliament passed the Trade Unions Act 1871 (UK). The unions in Australia joined together to form their own political party, the Australian Labour Party.
  • In late 19th century, the First Intl and Second Intl were created as organisations of unions and political representatives urging improved working conditions globally.
  • In 1919, the International Labour Organisation (ILO) was created to discuss social reforms and put them into practice. It was formed as an agency of the League of Nations, responsible for many conventions on working conditions and rights
  • Labour rights were enshrined in article 23 and 24 of the UDHR, and the ICESC (1966) has further defined this.
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6
Q

Developing recognition of human rights

Universal suffrage: pt 1

A
  • Suffrage refers to the legal right to vote in a democratic election.
  • In 1893, New Zealand became the first country in the world to give women an equal right to vote.
  • Australian Commonwealth granting women’s suffrage in 1902.
  • UK gave women a limited right to vote in 1918 which was not made equal to men’s rights until 1928.
  • The US passed the 19th Amendment allowing women to vote in 1920.
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7
Q

Developing recognition of human rights

Universal suffrage: race

A
  • Race was another issued that conflicted with rights to vote. In 1870 the US extended the right to vote by the 15th Amendment to all adult males to vote
  • In Australia, indigenous peoples had the right to vote since the time of Federation in 1901 however indigenous peoples were effectively denied the right to vote until 1962.
  • A 1967 constitutional referendum finally gave indigenous Australians the right to be counted in the Australian Census.
  • The right to vote was recognised as a universal human right in Article 21 of the UDHR (1948) but it was only with the end of the Cold War in 1990 that this right had the prospect of being accepted globally.
  • The tide has now turned against democracy and this will result in fewer people in the world being able to exercise a free right to vote
  • the right to vote mentioned in Article 21 of the UDHR (1948) needs to go global so that all humans have some say in how decisions are made at the global level.
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8
Q

Recognition of human rights

Universal education

A
  • Universal education is free and compulsory education for all children. It is the idea that all human beings have a right to an education.
  • right to free education for all human beings was included under Article 26 of the UDHR (1948), which states that children’s elementary education should be compulsory and made widely available.
  • Goal 4 of the SDGs is ‘Ensure inclusive and equitable quality education and promote lifelong learning for all’.
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9
Q

Recognition of human rights

Self-determination

A
  • It is the collective right of people to determine how they will be governed, or their political status, based on territory or national grouping.
  • Self-determination is also recognised in the declaration of the United Nations (1942.) The establishment of the Charter of United Nations (1945) led to the first universal recognition of the right to self-determination.
  • Article 1 (2) of the UN Charter calls for respect for the principle of self-determination and is further strengthened by Article 15 of the UDHR (1948).
  • The International Covenant on Economic, Social, and Cultural Rights (1966), includes self-determination as its primary right under Article 1 (1).
  • indigenous people have been regularly excluded from the democratic process, forcefully assimilated, economically exploited or generally oppressed.
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10
Q

Recognition of human rights

Environmental rights

A
  • Environmental rights are unlike individual/collective rights, but intergenerational which include the right to a healthy safe, and adequate environment.
  • UN Climate Change Conference in December 2015 produced the Paris Agreement to stabilise global warming below 2 °C above pre-industrial levels
  • Kyoto protocol (1997) attempts by the intl community to deal with environmental problems, such as global warming
  • ICC can deal with breached of environmental rights
  • Limitation: the failure of all states to commit to measures to benefit the global community when there may be the short-term disadvantage of their national interests
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11
Q

Recognition of human rights

Peace rights

A
  • It is the right of citizens to expect their government to do all in its power to make progress towards the elimination of war. Peace Rights are collective rights such that they belong to a distinct group of people and exercised on behalf of community
  • Elimination of the threat of war, particularly nuclear war in the Treaty on the Prohibition of Nuclear Weapons (2017) approved by the UN General Assembly on 7 July 2017
  • Renunciation of the use of force in international relations in UN Charter which prohibits the threat or use of force against the integrity of political independence of any state in international relations to remain consistent with the UN
  • Declaration on Right of Peoples to Peace (1984), all peoples have sacred right to peace, obligations on govt
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12
Q

Formal statements of human rights

UDHR (1948)

A
  • The UDHR was created by the UNGA on 10th December 1948. Originally signed by 48/58 states that existed in the world at that time.
  • The UDHR had 30 articles covering rights such as the right to life, liberty, security, thought, religion, education, work, equality of movement and asylum. The right to join a trade union, have an adequate standard of living and be able to participate fully in cultural life are also included, as are the rights to freedom from slavery and torture.
  • It was adopted as a declaration, rather than a fully binding treat for the purpose of defining ‘fundamental freedoms’ and ‘human rights’ in the UN Charter, which is binding on all member states.
  • It is soft law rather than containing enforceable hard law obligations. It inspired more than 200 international treaties, conventions, declarations and bills of rights in the last 50 years. It is possibly the most important of all human rights documents.
  • Even though it isn’t a formal treaty, it has arguably become part of international customary law and has become the foundation for eight core human rights treaties.
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13
Q

International community: state sovereignty

State sovereignty

A

State sovereignty is central to international law and to the capacity of the world to enforce states’ compliance with recognised human rights.

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14
Q

International community: state sovereignty

Statehood

A

A state is the basic unit of the international system. States are the only entities in international law capable of exercising full political capacity.

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15
Q

International community: state sovereignty

Nation

A

A nation is a people that share a common heritage, language or culture and sometimes a common race.

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16
Q

International community: state sovereignty

recognition as a state requirements

A

In international law, recognition as a state requires a number of factors. Outlined in Article 1 of the Montevideo Convention on the Rights and Duties of States (1933), their characteristics must include:
o A permanent population
o A defined territory
o Government
o A capacity to enter into international negotiations

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17
Q

International community: state sovereignty

sovereign state

A

A sovereign state is a geographical areas that is controlled by a central government that exercises supreme independent authority over that area internally and externally. Membership of the UN is the clearest mark of statehood.
In practice, the granting of statehood is usually a political matter with recognition by leading nations being the most influential factor, rather than legal considerations.
People may be unable to claim protections under the international human rights regime if they live within the territory of an unrecognised state, or if they live in a state with which relations have broken down.

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18
Q

International community: state sovereignty

Major problems with state sovereignty

A

One of the major problems of state sovereignty is that not all governments equally accept the idea that their own people have certain rights. Some countries without democratic processes may rely on sovereignty to justify the mistreatment of their own citizens. State sovereignty may be used as a shield against outside interference.

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19
Q

Roles

the UN

A

The UN is a vast organisation with substantial power, consisting of 193 member states, including almost every sovereign state in the world, and has responsibility for almost every aspect of international affairs.
It is the avenue through which much of the world’s international cooperation takes place. The UN has five principal organs under the Charter of the UN (1945). All of these have some role to play in the promotion or protection of human rights.

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20
Q

Roles

organs of the UN: the UNGA

A
  • The UNGA is the UN organ representing all states and acts as a forum for global discussion, deliberations, declarations, and recommendations, many relating to human rights.
  • Numerous committees, programs, and funds are attached to the UNGA.
  • The UN’s principle human rights body, the UN Human Rights Council, reports directly to the UNGA.
  • limited to making recommendations that don’t have any enforcement, but still carry considerable weight
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21
Q

roles

Organs of the UN: UNSC

A
  • the UN organ responsible for the preservation of international peace and security.It exercises its power through legally binding resolutions, and can authorise military actions, sanctions, or peacekeeping operations.
  • The UNSC has 5 permanent members who have the power to veto decisions (US, UK, China, Russia, France) and 10 temporary members with two-year terms.
  • The council, it is argued, has the power to intervene in the most serious of human rights abuses by states.
  • Numerous proposals have been made to change the structure and power of the UNSC to more accurately reflect today’s world, but this had yet to occur.
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22
Q

roles

organs of the UN: Economic and Social Council

A
  • the UN organ that acts as a forum for international economic and social cooperation and development with 54 rotating members.
  • It includes various committees and acts as the central forum for discussion of economic, social, environmental and humanitarian issues.
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23
Q

roles

organs of the UN: UN Secretariat

A
  • the main administrative body headed by the UN Secretary General that provides various information, studies, tasks, and a facilities needed by the UN.
  • It includes the UN’s departments and offices including the Office of the High Commissioner of Human Rights (OHCHR).
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24
Q

roles

organs of the UN: ICJ

A
  • primary judicial organ of the UN which has jurisdiction under the Charter of the UN (1945) to hear disputes submitted by member states and issue advisory opinions on matters of international law submitted to it by international organs and the UNGA.
  • Its cases will only rarely relate to issues of human rights.
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25
Q

roles

organs of the UN: Office of the UN High Commissioner for Human Rights

A

an administrative agency under the UN Secretariat that works to promote and protect the human rights contained in the UDHR and international law.

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26
Q

roles

organs of the UN: UN Human Rights Council

A

relatively new intergovernmental body under the UNGA made up of representatives of member states. Its 47 member seats are rotated on three year terms.

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27
Q

roles

SDGs

A

were designed to achieve specific targets by 2030, with 169 targets in total. The aim, stated in the UN document ’17 goals to Transform Our World’, is to created a ‘fairer, more prosperous, peaceful and sustainable world where no-one is left behind’.

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28
Q

Intergovernmental organisations (IGOs)

A
  • International institution made up of member states created by agreement between states with a charter outlining the organisation’s purpose and operation.
  • They are usually permanent, meet regularly, can enter into enforceable agreements, and are subject to international law.
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29
Q

IGOs

Commonwealth of Nations

A
  • operates within a framework outlined in the Singapore Declaration of Commonwealth Principles.
  • stated aims include the promotion of democracy, the rule of law, human rights, individual liberty, and good governance.
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30
Q

IGO

African Union

A
  • established in 2002 containing all African states.
  • aims include bringing about security and peace, promoting good governance, democratic institutions and human rights.
  • decisions are made by the Assembly of the African Union.
  • African Union includes the African Commission on Human and People’s Rights and the African Court on Justice and Human Rights.
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31
Q

IGO

Organisation of American States

A
  • Includes all the states of North, Central and South America.
  • International American Commission on Human Rights and the Inter-American Court of Human Rights are responsible for overseeing the American Convention on Human Rights.
32
Q

Courts, Tribunals, and Independent Authorities

International Court Justice

A

The ICJ is an organ of the UN. It started operation in 1946 at the Peace Palace in The Hague, Netherlands. It has two roles; to hear and judge disputes between states, and issue advisory opinions on matters of international law.

33
Q

Courts, Tribunals, and Independent Authorities

ICJ advisory opinion

A

‘Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem’ (2024), the court issued an advisory opinion which found that Israel’s practices are illegal in the occupation of Palestine and because they are bound by the ICCPR and the ICESCR, they are under obligation to provide full reparations and return land to comply with the right of the Palestinian people to self-determination.

34
Q

Courts, Tribunals, and Independent Authorities

ICC

A

The ICC is not a court for human right violations specifically, but it does prosecute and hear matters relating to the most serious international crimes, including those that fall under international humanitarian law.

35
Q

Courts, Tribunals, and Independent Authorities

Ad Hoc Tribunals

A
  • Ad hoc tribunals were set up by the UNSC in the 1990s.
  • The International Criminal Tribunal for the Former Yugoslavia (1993) was a UN court of law that dealt with war crimes that took place during the conflict in the Balkans in the 1990s which changed the landscape of international humanitarian law.
  • It delivered 161 high profile indictments and 90 individuals were sentence for genocide, crimes against humanity, or other crimes.
36
Q

Courts, Tribunals, and Independent Authorities

European Court of Human Rights

A
  • set up in 1959 to apply and protect the human rights of citizens of Europe.
  • It considers cases brought by individuals, organisations, and states.
  • It is extremely influential and compliance has been incorporated into the treaties of the European Union which has impacted member states domestic law.
37
Q

Courts, Tribunals, and Independent Authorities

European Court of Human Rights case

A
  • Verein Schweise & Ors v. Switzerland (2024) found that Switzerland has breached the European Convention of Human Rights by not taking sufficient action against climate change.
  • This was considered a violation of the right to respect for private and family life contained in Article 8 of the Convention based of Switzerland’s failure to mitigate the impact of climate change on the lives of its citizens.
38
Q

Courts, Tribunals, and Independent Authorities

Other authorities established by treaties

A

the International Bill of Rights, as well as some other key human rights treaties, has established particular authorities to hear matters of compliance by member states with the treaties.

39
Q

NGOs

Non-Government Organisations

A
  • organisations that are independent of and without representation of any government. They include private voluntary organisations, citizen associations and civil society organisations.
  • work to advocate, analyse, publicise and report human rights abuses worldwide
  • informs the global community, governments, and the UN of human rights violations and progress.
  • Some work directly with violators or victims, providing evidence to international courts, or encouraging other stats of the UN to apply diplomatic pressure or take action against violating states.
40
Q

NGOs

International NGO

A
  • The International Committee of the Red Cross (ICRC) missions are strictly concerned with international humanitarian law, protecting the life and dignity of victims of international and other armed conflicts which often overlaps with human rights abuses.
  • It has been allowed observer status at the UNGA and also works closely with the International Federation of the Red Cross and Red Crescent Societies (IFRC).
41
Q

NGOs

Domestic NGO

A
  • The Human Rights Law Centre is an Australian NGO that has consultative status accreditation with the UN Economic and Social Council, allowing them to participate formally in UN processes.
  • It uses strategic legal action, policy solutions, and advocacy to strengthen the legal and institutional protections of human rights, promote the human rights of people seeking asylum and refuges, and protecting democratic freedoms.
42
Q

NGO

Media as an NGO

A
  • The media has the role of investigating, reporting, and exposing instances of human rights abuse which has significant influence on public opinion
  • influential in raising conciousness, pressuring states into improving human rights, being an agent of law reform, providing information
  • The role of a free and impartial media and people’s right to information is recognised as a human right in article 19 0f the UHDR (1948).
43
Q

NGOs

NGO media example

A

when the film called “Kony 2012” was released which brought awareness to Joseph Kony, a Central African warlord responsible for abducting tens of thousands of children to enslave them as soldiers and for displacing 2.5 million people which made him the target of a global civilian manhunt.

44
Q

Human Rights in Aus domestic law

How Australia protects human rights

A
  • Ratification
  • statute law
  • common law
  • Constitution
  • AHRC
  • NGOs and Media (not as strong)
45
Q

Human Rights in Aus domestic law

Signing treaties

A

When an international treaty is negotiated and formed, states indicate their agreement to the principles of the treaty by signing it. Singing a treaty means the country will have to act in the spirit of the treaty, but it is not directly binding. In most cases a treaty will need to be ratified by the state before it becomes binding and enforceable.

46
Q

Human Rights in Aus domestic law

Monist System

A

When a legal system which deems treaties enforceable as soon as they have been signed. Such countries can sign and ratify a treaty at the same time.

47
Q

Human Rights in Aus domestic law

Dualist system

A
  • A legal system that does not deem treaties enforceable domestically under they are incorporated into domestic law, usually by passing similar legislation.
  • Parliament usually passes legislation that echoes the words of the treaty or amends existing laws.
  • Australia and the UK has a dualist system
48
Q

role of the Australian Constitution

the two important roles the Constitution plays in protecting human rights

A
  • It lays down the system of Australian Government through which human rights are recognised including the separation and division of powers
  • It is the source of some specific human rights
49
Q

role of the Australian Constitution

Separation of Powers

A

The doctrine of the separation of powers is important in protecting human rights. It involves the separation of the branches of the state:
* The legislature makes the law
* The executive including government and ministers interpret the law
* The independent judiciary applies the law
Delegated legislation refers to laws made by people or bodies to whom parliament has delegated law-making authority.

50
Q

role of the Australian Constitution

Separation of powers: independent judiciary

A

The independence of the judiciary is an essential mechanism for upholding the role of law, ensuring that all people, including government, are equally subject to the same law. The separation of powers enables the judiciary to strike down any legislation that it deems incompatible with the rights and limitations provided for in the Constitution.

51
Q

role of the Australian Constitution

Division of powers

A
  • The Constitution also defines the division of powers between the Commonwealth and Australian states.
  • Most specific areas that the Commonwealth can make laws for are listed under s51 of the Constitution known as heads of power which include currency, marriage, copyrights, and patents.
  • The powers that aren’t listed in the Constitution are residual powers which are powers that belong to the state. States can decide to refer such powers to the Commonwealth as they did for air navigation and terrorism for example.
  • Section 109 of the Constitution states that if there is a conflict between federal and state law, federal law overrides it.
  • S128 of Constitution stipulates that constitution can be changed with a referendum
52
Q

role of the Australian Constitution

Express and implied rights

A

Express rights are the rights explicitly outlined in the Constitution. Express rights include:
* Freedom of religion
* The right to vote in commonwealth elections
* Right to a trial by jury in federal indictable cases
* The right to just terms were the Commonwealth compulsorily acquires property
The High Court has interpreted the Constitution as necessarily holding over rights. These are referred to as implied rights.
A High Court case that has clarified these rights is the Mabo v Queensland (no.2) (1992)

53
Q

Statute law protection of rights

A

While many of the laws have been adopted in response to the establishment and ratification of international treaties protecting rights, some have also been established independently by state or federal parliaments. Statute law is a powerful tool in human rights protection and many laws have been wide-reaching, but like common law, rights laid out in statute aren’t fixed- they too can be removed by a later Act of parliament.

54
Q

statute law protection of human rights example

A

Any Anti-Discrimination Act eg. the Anti-Discrimination Act 1977, Disability Discrimination Act, any from effectiveness tables

  • Anti-Discrimination Act 1977 (NSW)
  • Sex Discrimination Act 1984 (cth)
55
Q

Common law protection of rights

A
  • The common law in Australia is the body of law made by judgement of the courts. However, the common law does not offer absolute protection of human rights, because common law rights are not fixed.
  • The rights in common law can be removed by any legislation that conflicts with the common law position overrides that common law position.
  • The common law cannot be relied upon to develop new rights, as judgements will only define those rights on a case-by-case basis, if and when a relevant matter is brought before a court.
  • Common law sets precedent. The doctrine of precedent for human rights promotes consistency. The presumption of innocence, the right to silence, adversary system, the right to appeal, procedural fairness are all ways that common law protects human rights.
56
Q

Courts and Tribunals

How courts and tribunals assist human rights

A

In Australia, all courts and tribunals have some role in applying and enforcing human rights laws. Occasionally, courts also play a role in interpreting and developing human rights law.

57
Q

Courts and Tribunals

Australian Human Rights Commission (AHRC)

A
  • established under the Australian Human Rights Commission Act 1986 (Cth) to deal with alleged violations of the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth)
  • reports and deal with human rights generally.
58
Q

Courts and tribunals

AHRC example of human rights advocacy

A

In 1997 it conducted an enquiry into the separation of indigenous children from their families in the AHRC report ‘Bring Them Home’. The AHRC also conducts a strong educational program on social media.

59
Q

Courts and tribunals

AHRC complaints functions

A
  • power to investigate many kinds of discrimination. The AHRC will investigate and try to conciliate the complaint, but if it cannot be resolved it goes to the Federal Court, to make enforceable orders
  • hear complaints on other human rights breaches in Australian law and international human rights law.
  • If the complainant is unable to take the matter to the Federal Court, the AHRC can make a report to the Attorney-General who is required to table the report in parliament.
  • These findings are not enforceable and the complainant will have no rights to have the wrong rectified.
60
Q

Courts and tribunals

Statutory authorities

A

A statutory authority is an authority in the form of a tribunal/body that is given power under statute law.

61
Q

Courts and tribunals

Examples of statutory authorities

A

Domestic: AHRC
International: Committee on Economic, Social, and Cultural Rights
International:
* The UN High Commissioner of Human Rights established under the UN Charter and the Human Rigths Committee.
* The Committee on Economic, Social, and Cultural Rights was set up by the ICESC (1966) and allows countries to report on achievements in economic, social, cultural rights and difficulties in implementation

Domestic:
* The AHRC promotes and protects human rights, investigates complaints of discrimination, educates the public, advises the government on human rights issues, and advocates for change

62
Q

Common law protection of human rights examples

A

Mabo v Queensland (no.2) (1992) in which the High Court recognised the fact that Indeginous people had lived in Australia for thousands of years and overthrew the concept of terra nullius, granting the recognition of customary law and the right to traditional lands.

63
Q

statutory authorities

Committee on Economic, Social, Cultural Rights

A
  • It was vested power by the ICESC (1966).
  • It is a body of 18 independent experts that monitors implementation of the International Covenant on Economic, Social and Cultural Rights by its State parties.
  • It aims to develop a constructive dialogue with State parties, determine if the Covenant is being applied, and assess how the implementation and enforcement of the Covenant could be improved.
64
Q

Formal statements of human rights

Formal statements of human rights

A

formal statements of human rights can be hard law or soft law.
* Hard law is one that is binding on parties and includes features such as treaties and Security Council resolutions.
* Soft law is where international commitments are made through a UN Declaration which isn’t legally binding.

65
Q

Formal statements of human rights

International Coventant on Civil and Political Rights (ICCPR) 1966

A

The ICCPR contains the rights that all human beings must have and came into force with the ICESC as twin covenants. It includes the right to
* self-determination
* life
* the right to vote (article 25)
* freedom of association
* freedom of thought and conscience, and of religion. States are expected to achieve the rights listed progressively. This lead to the Australian referendum in 1967 which granted Indigenous Australians the vote.
Contains monitoring and reporting arrangements, and is overseen by the UN Human Rights Committee.

66
Q

formal statements of human rights

International Covenant on Economic, Social, Cultural Rights (ICESC) 1966

A

The ICESC contains more aspirational rights. It set up the Committee on the Economic, Social, and Cultural rights as a statutory authority.
It creates obligatiosn for states to work towards granting rights to individuals including:
* labour rights
* right to adequate stadnard of living
* right to an education

67
Q

The role of the Australian Constitution

Example of the division of powers protecting human rights

A

Commonwealth of Australia v Tasmania (Tasmanian Dam Case) 1983. The Cth government stopped a hydro-electric dam being built in Tasmania as the Commonwealth had power under s51 of the Consitution to stop the dam based on Australia’s obligations under the World Heritage Convention.

68
Q

Contemporary issue

Definition of human trafficking and slavery

A

commercial trade or trafficking in human beings for the purpose of some form of slavery, usually involving recruiting, transporting or obtaining a person by force, coercion or deceptive means.

69
Q

Contemporary issue

International Legal Responses

A

UN General Assembly’s adoption of the Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women and Children.
* First legally binding instrument with an agreed definition of human trafficking
* Aims to provide an overall umbrella of overall protection
* Effective in uniformly combating human trafficking
* Promoted greater global awareness of the issue, greater conformity in national laws and better cross border cooperation in investigating

UN Global Report on Trafficking in Persons 2013
* Shows that in the past few years the number of states seriously implementing the Protocol has more than doubled
* However … there are still many countries that lack the necessary instruments or political will.
* Although the Protocol is reasonably successful there is still great progress to be made in relations to needing considerable resources, focus and cooperation

70
Q

Contemporary issue

Australian Legal Responses- Statute Law

A

2003 - The Commonwealth Action Plan to Eradicate Trafficking in Persons (2003) (first real step towards addressing trafficking, specifically sex trafficking in Australia). The ‘Plan’ involved:
* A specialised police unit, migration officers located in Thailand, new visa arrangements for victims, victim support package through Centrelink, ratification of the Palermo Protocol (2000)

Australia ratified the Supplementary Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children on 27 May 2004

Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth)
* The specific crime of Human Trafficking was added to the Criminal Code
* (Section 271 - 12 years max for trafficking; 25 years max for trafficking in children)
* PROBLEM: The threshold for actually PROVING trafficking is very HIGH (difficult to prove → unlikely to prosecute)

2011-12: The AFP investigated 45 cases of people trafficking in Australia

**Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013. **This law
* Gave police more powers to investigate these situations, increased penalties especially for debt bondage
* Made forced labour and forced marriage a crime whether there was trafficking involved or not (e.g. your Australian family can’t threaten you into marrying someone in Australia
* Made it slightly easier for victims to receive compensation

The Community Relations Commission (NSW) held the **‘Inquiry into the exploitation of people through trafficking, in all its forms in NSW’ (2013). **
* They found that: “The problem of human trafficking for exploitation in New South Wales is “far more widespread than anyone would care to estimate”

71
Q

Contemporary issue

Ineffectiveness of international legal responses

A
  • Lack of global agreement on definition (different countries - different definitions)
  • difficult to gather accurate data/statistics
  • Continued criminalisation of ANY prostitution (which does not work as a strategy).
  • Most countries use a “national security” approach vs “human rights” approach
  • Not all countries have ratified the UN Trafficking in Persons Protocol (2000)
  • Support for victims is poor in a lot of countries
  • A lot of approaches involve ‘forcible repatriation’ where is someone was sold as a sex slave and brought to another country, many countries will simply deport the trafficked person
71
Q

Contemporary issue

Australian Legal Responses- Common Law

A
  • The first conviction for slavery was in R v Wei Tang (2008).
  • There have been multiple convictions since, usually of sex slavery (R v Chee Mei Wong (2013) and Rv GD, PK, Baxter & Barnes (2013))
  • Usually when people are convicted of serious cases of slavery, the penalties are relatively minor and do not reflect community values, possibly because of a perception that sex workers are partially to blame
  • e.g. Melvor and Tanuchit (2010) where 5 slaves were kept in a brothel and performed thousands of forced sex acts - each defendant received a minimum non-parole period of 7 years, which is the same as the standard non-parole period for ONE sexual assault
72
Q

Contemporary issue

Effectiveness of Australian Legal Responses: statute law and government

A
  • There is a significant improvement in the legal responses created to address Human Trafficking and Slavery. However, resource efficiency, enforcement and responsiveness still need attention.
  • Australia has contributed over $150 million to efforts to deal with HT since 2003 and supports the Asia Regional Trafficking in Persons (ARTIP) program, which trains police, prosecutors and judges in our region to deal with HT
  • Australia is classified as a “Tier 1 Country” in the US State Dept’s TIP Report 2012 (meaning that we are fully COMPLYING with American standards when it comes to fighting HT)
  • Australia protects the victims of trafficking…but the protection of the victim is CONDITIONAL on the victim ASSISTING AUTHORITIES who are prosecuting the people who trafficked them
  • But the victims of trafficking are often not physically, psychologically or emotionally able to assist authorities in the way they need to in order to get protection from the government (e.g. being able to stay in Australia).
73
Q

Contemporary issue

International non-legal responses

A
  • UN set up a Global Initiative to Fight Human Trafficking which increases awareness, assists NGOs in their campaigns, and reduces demand for exploitation
  • ILO (International Labour Organisation): Plays a crucial role in implementing and reporting on worker’s rights worldwide; established a Special Action Programme on Forced Labour (2001) to raise global awareness of forced labour in its different forms
  • Anti-Slavery International (1839) is an international NGO based in the United Kingdom
  • American Anti-Slavery Group is an anti-slavery NGO that works on awareness, advocacy and aid
74
Q

Contemporary issue

Australian non-legal responses

A
  • The government gives money to the Red Cross, which then helps the victims which is called the Support for Trafficked People Program
  • The program has helped 77 victims through income support, legal and migration advice, health services and counselling
  • strong media coverage when there is a case i.e. Wei Tang (2009).
  • Newspapers, television and documentaries have increased in promoting awareness (SBS aired Trafficked, a documentary about sex slavery watched by 500 000 viewers) → this lead to 2013 amendment of the law
  • Australian Universities are crucial in researching and reporting on trends seen in The University of QLD establishing a Human Trafficking Workshop Group in 2008
75
Q

Common law protection of rights limitations

A
  • slow to adapt to change in social and polictical circumstances as judges are bound by precedent, takes time for precedent to be established
  • difficult to predict how a court will rule as judges have discretion to interpret the law in different ways, hard to know rights and if they are protected
  • limited in scope as it is based on traditional legal concepts that may not be suited to protect newer human rights eg. enviro rights
76
Q

Limitations of international law protecting human rights

A

can be compromised/limited by state sovereignty and lack of enforceablity

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