human rights

Question 1

what are human rights

Answer 1

+ human rights are the basic moral or legal entitlements that exist for all human beings irrespective of any personal qualities or characteristics
+ aims at identifying the fundamental prerequisites for each human being leading a minimally good life past survival

Question 2

development of human rights
eg womans rights

Answer 2

woman werent elected into Aus commonwealth parliament to 1943
couldnt drink in public bars until 1965

has come a long way but
aus women payed 17.5% less then men for doing the same work

Question 3

international human rights law

Answer 3

+ seperate from Australian domestic law
+ esthablishes principles and guidelines about how Aus should treat its citizens but doesnt govern the behavior and conduct

two types
international declarations
international treaties

Question 4

international declarations

Answer 4

Non - binding agreements that sets out aspirations or intentions of countries [or international organisations] who are a party to it

Question 5

Universal declaration of human rights [UDHR]

Answer 5

+ made in 1948 after ww2 to reaffirm faith in human rights
+ esthablishes basis for modern international human rights law
+ 30 articles
+ has negative freedoms eg freedom from slavery and positive freedoms eg freedom of movement
+ adopted by 192 members of the UN
+ translated into 337 lang.
+ has inspired more than 80 treaties, declarations and agreements including Convention of the rights of thhe Child [1989]

Question 6

why is the UDHR limited

Answer 6

+ declaration therefore methods of enforcement are weak
+ can monitor and investigate compliance but not interfere
+ seen as a western document that doesnt consider different religious beliefs and some changed articles are not as protected

Question 7

international treaties

Answer 7

legally binding agreements between countries [ or international organisations] in which they undertake to follow the obligations set out in the agreement and implement them in domestic law.

Question 8

steps involved in international treaties

Answer 8

1. Signing a treaty demonstrates a countries intention to incoporate it into domestic law later
   eg aus signed Convention of elimination of all forms of racial discrimination in 1966
2. ratifying a treaty requires a country to pass domestic legislations to approve and adopt the rights outlined in the treaty, whereby becoming legally bound

Question 9

human rights protection via statute law

Answer 9

statute law = laws made by parliament [supreme law making body]
most human rights in Australia are recognised in and protected by statute law, created by both commonwealth and state parliament
eg range of federal and state laws protect indv from discrimination
eg Racial Discrimination Act 1975 [cth]
or Equal Oppurtunity act 2010 [vic]

Question 10

Strengths and weaknesses of statute law

Answer 10

s = provides an explicit and robust protection of certain human rights
s = people can be punished for breaching human rights
s = people can be compensated for breaches
s = parliament can create statute law whenever the need arises - allows for rights protection to be evolved easily

w = people may not have physical or financial access to courts to uphold these human rights eg through civil trials
w = in a diverse and multicultural society, interpretation of certain rights may differ
w= parliament can pass new laws that amend laws that remove HR previously protected - not enshrined in const.

Question 11

Victorian charter of Human rights and responsibilities / strengths

Answer 11

Recognises the rights, freedoms and responsibilities of Victorians

+ requires MP’s to explicitly articulate whether new leg upholds or restricts the rights in the charter through statements of compatibility
+ imposes obligations on public authorities to act compatibly with HR
+ courts and tribunals must interpret laws in way that upholds HR
+ supreme court can declare a law in inconsistent with HR but cant strike it down

Question 12

weaknesses of the Vic charter of HR

Answer 12

+ non-binding
+ has general limitations clause which allows public authorities to restrict HR in situations where they can justify it/ is reasonable to uphold free + dem. society
+ no impact on new laws from commonwealth parliament
+ laws prior to 2006 did not require a statement of compatibility

Question 13

courts creating new human rights eg Dietrich

Dietrich v the Queen

Answer 13

+ when resolving cases that involve an alleged breach of human rights, judges may esthablish precedent that protects human rights
eg the right to legal representation which was recognised in Highcourt in Dietrich V the queen [1992] where

• when the unrepresented Dietrich was sent to imprisonment and appealled to high court, they recognised the right to legal rep in a serious criminal case to actualise right to a fair trial

Question 14

courts strengthening statutory rights eg barwon prison

Certain Children v minister for families and children 2016

Answer 14

+ the courts can recognise, uphold and strengthen the human rights protected under statute law including Vic charter
eg in case about Barwon prison [certain children v minister for families and children 2016] when

When the governments 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

Question 15

strengths and weakness of common law

Answer 15

+ courts and judges can esthablish precedent free from political pressures
+ courts can highlight to p gaps in the law that protect rights
- courts must wait for situation to arise
- judges may be reluctant and leave it to parliament
- parliament as supreme law making body can abrogate common law

Question 16

defenition of constiution

Answer 16

Founding document that outlines how Australia is to be governed. For example esthablishes the commonwealth parliament and its structure and law making powers.

Question 17

defenition of referendum + what is a double majority

Answer 17

a method used for changing the wording of the constitution. The vote is compulsory for everyone on the electoral roll and they have to vote yes or no.

double majority = when there is a national majority of over 50% yes
and
4/7 states have a majority yes vote

Question 18

express rights - section 51

Answer 18

section 51 - the right to receive just terms when property is aquired by the commonwealth

strenghts - the cth cant pass a law taking a persons or companies land or posessions unless fair and reasonable compensation is provided

weaknesses - doesnt prevent property from being aquired
no specification or statement on “just terms”
doesnt apply to states

Question 19

strength and weaknesses of express and implied rights

Answer 19

+ express can only be abolished through ref so can only be changed with support of aus people
+ all rights protected by const. are fully enforceable so any stat law can be declared invalid
- changing by ref is very diff, can be hard to uphold human rights
- very few human rights protected by const.
- expensive and time consuming to take cases to HC for breaches in stat with const

Question 20

express rights - section 80

Answer 20

the right to a trial by jury for the commonwealth indictable offences

strengths - applies to indv charged w offences eg terrorism or drugs
the cth cant legislate to have serious case heard by judge only which enhances a fair trial

weaknesses - may crim offences created to state laws and this section doesnt apply to states

Question 21

express rights - section 92

Answer 21

the right to free interstate trade and commerce

strengths - both cth and state parliaments cant pass legislation that restricts free movement of goods or indv between dtates
eg cant impose tax on outer state goods

weaknesses - HC stated that can restict movement w/o discrimination
a law that has some other legitimate purpose but has the side effect restraining movement may be valid

Question 22

express rights - section 116

Answer 22

the right to freedom of religion

S - the commonwealth parliament cant pass law that imposes or bans a religion
person cant be denied pos. in cth because of religion

w - doesnt apply to the states
laws that have effects of forcing a person to do something there religion prohibits doesnt necessarily breach it

Question 23

express rights - section 117

Answer 23

the right not to be discriminated against based on your state of residence

s - the cth parliament cant pass a law that treats victorians less favourbly than new south wales citizens
states cant pass laws that impose a burden on a person because they live in a certain state

w - some laws that are restrictive can be acceptable eg Vic law prevents NSW ppl from voting
relativly few HC cases have involved this interpretation so remains unclear what laws it would violate

Question 24

what are implied rights

Answer 24

+ rights that are not explicitly stated in the wording of the constitution but are considered [implied] to exist through interpretation of the High court
+ fully enforceable so if person or org believes leg breaches implied right can challenge the laws validity in HC

Question 25

what does the right to FoPC protect, how is it limited

Answer 25

const doesnt explicitly state that Aus have right to freedom of political comm but the high court has decided that this freedom is implied and protected

protects Australians to freely discuss and debate political issues to make an informed decision at the election

limited through sometimes being restricted eg safe access zone laws which prevent anti abortion protesters from being 150m of fertility clinics

Question 26

nature of right to freedom of religion

Answer 26

aus supports the universal declaration of Human rights which is article 18 states that
“everyone has the right to freedom of though, conscience and religion, this right includes freedom to change his religion or belief and freedom either alone or in the community with others and in public or private to manifest his religion or belief in teaching, practice worship and observance

Question 27

development of the right to freedom of religion

Answer 27

+ 1966 the right to freedom of though, conscience, and religion was included in international civil and political rights [ICCPR]

+ aus has since created multiple statute law making it unlawful to discriminate on religion eg Equal oppurtunity act 2010 [vic]

+ the aus const [section 116] provides aus with limited right to freedom of religionas cth parliament cant pass a law that esthablishes a national religion, imposes religious observance, etc

Question 28

DOGS case and impact on freedom of religion

Answer 28

+ in 1981 HC had to determine whether leg passed by cth to give $ assistance to non gov schools [including religious] was in breach of section 116 as it is “imposing a national religion”
+ was rejected as the purpose of the leg was for education

impacts on FoR
+ narrows the scope of the application of sec 116
+ promotes the right to practice religion at schools

Question 29

positives and negatives of Religious Discrimination Bill [cth]

Answer 29

+ strengthens discrim. laws by adding religion as a protected characteristic -> fills gaps of stat. interpretation
+ protects people from making genuine, honestly held statements based on religious beliefs
+ can prevent ppl for being fired b/c of religious reasons

• large tension between statement of belief and discrimination
• statement of belief = ambigious -> would require stat. interpretation
• review found it uneccessary - could create issues that we don’t currently have

Question 30

what is an express right

Answer 30

An express right is an explicitly stated [or entrenched] in the wording of the constitution and can only be altered or removed through a successful referendum

Question 31

significance of section 7 and 24 of const

Answer 31

require house of reps and the senate to be directly chosen by the people
thus upholds aus having a representative gov as population elects the people in gov and parliament
upholds aus democracy

eg is roach v electoral commisioner as allowed highcourt to find laws unconst. if inconsistent with representative gov.

Question 32

roach v electoral commisioner [2007]

Answer 32

Vickie roach was serving 6yr sentence
in 2006 cth banned all prisoners from voting in elections
Roach challenged cost. validity as silenced first nations voices and belived unconst as didnt uphold rep gov
as section 7+24 require rep. gov and to be chosen by people
in result people serving less than 3yrs can vote

significant as in 2007 10,000 regained right to vote
and the interpretation restricted cth ability to pass laws