unit 2 human rights Flashcards
development of human rights
Example: development of women’s’ rights
- Women were not elected in Australia’s Commonwealth Parliament until 1943.
still unequal treatment today.
- Australian woman are paid 17.5% less than men for doing the same work. This means that they would have to work an extra 64 days a year to get the same pay as men doing the same work.
what are human rights
human rights are basic moral or legal entitlements that exist for all human beings irrespective of any personal characteristics
The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life beyond mere survival.
Calling them ‘rights’ suggests that they attach to individuals who can invoke them, that they are of high priority and that compliance with them is mandatory rather than discretionary.
international human rights law
International law is separate from Australian domestic law.
International human rights law establishes principles and guidelines about how Australia should treat its citizens but it generally does not govern the behaviour and conduct of Australian citizens.
The latter is the responsibility of Australian domestic law.
international declaration
non- binding agreement that sets out aspirations / intentions of countries (or international organizations) Who
are party to it
international treaties
legally binding agreements between countries (or international organizations) in which they undertake to follow the obligations set out in the agreement and Implement them in domestic law.
universal declaration of human rights- UDHR
sets out fundamental human rights that should be universally protected and respected.
The UDHR has now been adopted all 192 members of the UN.
The UDHR has been translated into 337 different languages
UDHR is not legally binding It has inspired the creation of more than 80 international treaties, declarations and agreements including:
- Convention on the Elimination of All Forms of Discrimination Against Women (1979)
two types of international agreements relevant to human rights:
- International declarations
- International treaties
examples of the UDHR articles
The Declaration consists of 30 articles covering a wide range of rights and freedoms, including:
the right to life, liberty, and security;
freedom from torture and arbitrary arrest;
the right to a fair trial;
freedom of thought, conscience, and religion;
and the right to participate in government and free elections.
step 1 to an international treaty
Step 1: Signing a treaty demonstrates a country’s intention to incorporate it into domestic law later.
- E.g. Australia signed the Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1966.
step 2 to an international treaty
Step 2: Ratifying a treaty requires a country to pass domestic legislation to approve and adopt the rights outlined in the treaty, whereby becoming legally bound.
- E.g. Australia ratified the CERD by passing the Racial Discrimination Act 1975 (Cth)
aims of UDHR
aims to promote peace, dignity, and justice for all people around the world.
what does the UDHR being translated into 337 different languages indicate
indicating its global significance as gov from across the world are all able to comprehend the Declaration and implement the text accordingly.
HR protections via statute law
Most human rights in Australia are recognised in and protected by statute law, created by both commonwealth and state parliaments.
*a range of both federal and state laws protect individuals from discrimination based on race, religion, ethnicity, sex, sexual orientation, gender identity, age, disability and other characteristics
- However, statutes may also establish exceptions to the general principles against discrimination
HR exemptions of discrimination example
o S38 Sex Discrimination Act 1984 (Cth)
lawful for a school to engage in discriminatory practices against a potential employee based on their sexual orientation, gender identity, marital status, or pregnancy if the school adheres to specific teachings about a particular religion. If such discrimination is carried out to protect the individual, it is considered lawful.
HR protections via statute law examples S16
- S16 Equal Opportunity Act 2010 (Vic) = unlawful for an employer to discriminate against a person based on their gender, for example, ‘when determining who should be offered employment’.
HR protections via statute law examples S12
- S12 Racial Discrimination act 1975 (Cth)= unlawful to refuse a person residential accommodation on basis of their race, nationality or ethnicity
weaknesses of statute law
Because parliament is the supreme lawmaking body, it can amend statutes and charters, so rights may become limited or no longer exist
Parliament can include limitations or restrictions in statutes or charters so protected rights are not always absolute
Statutes and charters do not always enable a person to be awarded any damages in the event their rights are breached
The rights protected in statute law and charters are not as well protected as rights contained in a constitution, as constitutional rights can only be altered or removed with public approval
strengths of statute law
Parliament can amend statutes and charters to incorporate further rights, particularly as society changes
Statutes and charters are often detailed and precise, and protect human rights specifically, rather than being implied
Rights contained in statutes are generally enforceable and need to be recognised by government organisations
Parliament does have the ability to pass laws quickly if there is a need to quickly protect additional rights
Victorian charter of human rights and responsibilities
recognizes the basic rights, freedoms and responsibilities of Victorians
The Charter requires MPs to explicitly articulate whether new legislation upholds or restricts the rights in the Charter through Statements of Compatibility
*MPs are discouraged from introducing laws that breach human rights due to political backlash
weakness of charter
The 20 human rights established in the Charter are not absolute or unrestricted.
- The Charter includes a ‘general limitations clause’ which allows public authorities (including Victorian Parliament and Government) to restrict human rights in situations where it is reasonable and justified to uphold a free and democratic society.
- Although the Charter promotes human rights in Victoria, it has no impact on new laws developed by the Commonwealth Parliament. As Commonwealth laws usually apply to all Australians, they may infringe upon the rights of Victorians.
- The Charter does not establish a right for Victorians to bring a case against the Victorian Parliament for creating laws that breach the Charter.
- Laws created prior to 2006 did not require a Statement of Compatibility and the human rights implications of many laws may not have been debated or considered.
strength of charter on public authorities
- The Charter imposes obligations on public authorities (e.g. Vic Police, local councils, Department of Education) to act compatibly with human rights and give proper consideration to human rights when making decisions.
strength of charter on tribunals
- Courts and tribunals must interpret all Victorian laws in a way that upholds the human rights outlined in the Charter, as far as this is possible.
strength + weakness of charter on supreme court
- The Supreme Court has the power to declare that a law or provision is inconsistent with human rights
but does not have the power to strike it down
courts creating new human rights eg Dietrich V the Queen 1992
The right of an accused to have legal representation was recognised by the high court in the case.
After the unrepresented Dietrich was sentenced to imprisonment and appealed, the High Court recognised the right of an accused to obtain legal representation when facing a serious criminal charge to actualise the right to a fair trial.
courts strengthening statutory rights eg Barwon prison
When the government’s decision to transfer children to Barwon Prison was declared unlawful, the Supreme Court strengthened rights under the Victorian Charter of Human Rights and Responsibilities including the right to humane treatment when being detained.
certain children V minister for families and children 2016
strengths of common law
The courts and judges are independent of parliament and can establish precedent free from political pressures
Courts and judges are able to make decisions to establish rights in areas where the parliament has not
The courts are able to infer rights without the need to consider now those rights may need to be limited
Courts are able to highlight to parliament gaps in the law that protect rights, which may encourage parament to change the law to farther protect rights’
weakness of common law
Common Law rights are not always easy to define or identity as opposed to statutory rights)
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
Often judges are reluctant to recognise certain rights such as the right to privacy, leaving it up to parliament to protect those rights
Judges are limited in applying the law to the case that is before them. They cannot simply create rights’ in any dispute
strength of charter
The Charter ensures human rights issues are considered and debated publicly when proposed legislation is tabled in Victoria. This creates a political risk for law-makers to introduce laws breaching human rights, discouraging MPs from doing so.
The process of requiring a Statement of Compatibility to be produced for all proposed legislation in Victoria ensures complex issues regarding human rights are debated and resolved publicly, by democratically-elected law-makers.
The Charter imposes obligations on public authorities to consider human rights. This constrains abuses of power by Victoria Police, for example.
Unlike the Constitution, which only contains five explicitly-protected rights, the Charter has a greater number of established rights including 20 fundamental rights, therefore explicitly indicating the rights Victorians should expect to be awarded in society.
