Human Rights

Question 1

Human Rights

Answer 1

There is no universal definition of human rights. The closest we have is the list of rights set out in various declarations and treaties.
Broadly speaking, human rights are the basic moral or legal entitlements that exist for all human beings irrespective of any personal qualities or characteristics.
The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading to 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.

Question 2

International Human Rights Law

Answer 2

International law is separated from Australian domestic law.
International human rights law establishes principles and guidelines about how Aus. should treat its citizens but it generally does not govern the behaviour and conduct of Aus. citizens. The latter is the responsibility of Aus. domestic law. There are two types of international agreements relevant to human rights; international declarations and international treaties.

Question 2

Development of Human Rights

Answer 2

What are now considered to be universal human rights have not necessarily always been human rights available to all, for example women did not always have the right to keep jobs if and when they married or be elected into Australia’s Commonwealth Parliament.

Question 3

International Declarations

Answer 3

Non-binding agreement that sets out aspirations or intentions of countries (or international organizations) who are party to it.

Question 4

Universal Declaration of Human Rights (UDHR)

Answer 4

Has been adopted by each of the 192 members of the UN, translated into 337 different languages and inspired the creation of more than 80 international treaties, declarations and agreements.

Question 5

International Treaties

Answer 5

Legally binding agreements between countries (or international organizations) in which they undertake to follow the obligations set out in the agreement and implement them into domestic law.
Signing a treaty demonstrates a countries intention and ratifying a treaty is to pass legislation incorporating it into domestic law.

Question 6

What is Statute Law?

Answer 6

Laws made by parliament.

Question 7

Synonyms for Statute Law

Answer 7

Acts of Parliament, legislation.

Question 8

Why is Parliament Considered the Supreme Law Making Body?

Answer 8

Parliament is democratically elected to represent the interest of the people. It can make laws as the need arises and can override other types of law, for example common law.

Question 9

Statute Law

Answer 9

Most human rights in Aus. are recognised in and protected by statute law, created by both commonwealth and state parliaments. However statutes may also establish exceptions to the general principles against the human right.

Question 10

Vic Charter of Human Rights and Responsibilities (VCHRR)

Answer 10

In addition to the individual statutes protecting human rights, the Vic Parliament has also passed the VCHRR to recognize the basic rights, freedoms and responsibilities of Victorians.

Question 11

How does the Charter Apply?

Answer 11

The Charter requires all 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.
The Charter imposes obligations on public authorities (e.g. Vic Police) to act compatibly with human rights and give proper consideration to human rights when making decisions.
Courts and tribunals must interpret all Vic laws in a way that upholds the human rights outlined in the Charter as far as possible.
The SC 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.

Question 12

Restrictions of the VCHRR

Answer 12

The 20 human rights outlined in the Charter are not absolute or unrestricted.
VCHRR includes a ‘general limitations clause’ which allows public authorities (incl. Vic Parliament and Government) to restrict human rights in situations where it is reasonable and justified to uphold a free and democratic society.
Promotes human rights but has no impact on new laws developed by the Cth Parliament (Cth laws apply to all Aus. t/f may infringe on Vic right) and does not establish a right for Vic’s to bring a case against the Vic Parliament for creating laws that breach the Charter.
Prior to 2006 laws did not require a statement of compatibility.

Question 13

Establishing New Human Rights

Answer 13

When resolving cases that involve an alleged breach of human rights (or possibly other kinds of disputes), judges may establish precedent that protects human rights.

Question 14

Right to Legal Representation

Answer 14

The right to legal representation is protected by both statute and common law. It was recognised by the High Court in Dietrich v The Queen and then S25 of the VCHRR - rights in criminal proceedings.

Question 15

Codification of Court Decisions

Answer 15

Parliament passes legislation that reinforces and endorses the legal principles established by a court.

Question 16

Upholding Human Rights in Statutes

Answer 16

As well as creating human rights, courts can also recognize, uphold and strengthen the human rights protected under statute law, including the Victorian Charter, e.g. Litigation Guardian Sister Marie Brigid Artur v Minister for Families and Children [2016] regarding the breach to the right of protection of the best interests of children and the right to humane treatment when being detained.

Question 17

What is the Australian Constitution?

Answer 17

The founding document that outlines how Australia is to be governed. E.g. the constitution establishes the Commonwealth Parliament and outlines its structure and law making powers.
A referendum is the method used for changing the working of the Australian Constitution. It is a compulsory national vote in which everyone on the electoral roll votes ‘yes’ or ‘no’ to change the Constitution. In order to be successful the referendum requires a double majority - a majority of all voters and a majority of voters in a majority of states (at least 4 states).

Question 18

Express Rights

Answer 18

The Australian Constitution protects five express rights of the Australian people. An express right is explicitly stated (or entrenched) in the wording of the Constitution and it can only be altered or removed by or through a successful referendum.

Question 19

Section 51 (xxxi) (Cth only)
Express Rights

Answer 19

The right to receive just terms when property is acquired by the Commonwealth.
Strengths
> Commonwealth cannot pass a law taking a person’s or company’s land or possession unless fair and reasonable compensation is provided.
Weaknesses
> S51 does not prevent the Cth from acquiring property from Australian citizens. > There is no specification or statement of what constitutes ‘just terms’, potentially leading to some unsatisfactory outcomes for landowners
> This section does not apply to the states

Question 20

Section 80 (Cth only)
Express Rights

Answer 20

The right to trial by jury for Cth indictable offences.
Strengths
> Applies for individuals who have been charged with offences such as terrorism, people smuggling, drug importation, fraud > The Cth cannot legislate to have indictable offences tried by a judge alone, which enhances a fair trial
Weaknesses
> Many criminal offences are created by state laws (e.g. Crimes Act 1958 (Vic)) and this section does not apply to the states

Question 21

Section 92 (Cth and State Parli.)
Express Rights

Answer 21

The right to free interstate trade and commerce.
Strengths
> Both Cth and st parliaments cannot pass laws that restrict free movement of goods or individuals between states
Weaknesses
> The HC stated that laws that restrict interstate movement of people without discrimination are acceptable.
> A law that has some other legitimate purpose, but has the side effect of restricting movement between states might be valid.

Question 22

Section 116 (Cth only)
Express Rights

Answer 22

The right to freedom of religion.
Strengths
> Cth Parliament cannot pass a law that imposes or bans a religion
> A person cannot be denied a position in the Cth Parliament or related positions because of their religious beliefs.
Weaknesses
> Does not apply to the states
> A law that has the effect of forcing a person to do something their religion prohibits does not necessarily breach S116 e.g. laws conscripting individuals to fight in a war

Question 23

Section 117 (Cth and State Parli)
Express Rights

Answer 23

The right to not be discriminated against based on your state of residence.
Strengths
> Cth Parliament cannot pass a law that treats Vics less favorably than NSW cits
> States cannot pass laws that impose a burden on a person bc they live in a different state
Weaknesses
> Some laws that legislate upon residents of diff states in a restrictive manner may be acceptable e.g. NSW cit not voting in Vic election would not breach S117
> Few HC cases (interpretation) so it remains unclear which laws would or would not violate S117

Question 24

Implied Rights

Answer 24

Are rights that are not explicitly stated in the wording of the Constitution but are considered (implied) to exist through interpretation of the HC.
Implied rights are also fully enforceable. Tmt a person or organization that is neg. affected by legislation breaching the implied right can challenge the law’s validity in the HC, so long as they have standing to do so.

Question 25

Right to Freedom of Political Communication (S7 and 24)
Implied Right

Answer 25

The right to FoPC empowers Aus. to freely discuss and debate political issues, subject to certain restrictions.
7. The Senate
> shall be comprised of senators for each State, {directly chosen by the people} of the State, voting, until the Plmt otherwise provides, as an electorate.

24. Constitution of HoR
    > shall be composed of members {directly chosen by the people} of the Cth, and the number of such members shall be, as nearly as practicable, twice the number of senators

T/f to make a decision at an election, a citizen must be able to obtain info about the political views of candidates

Question 26

Right to Freedom of Thought, Conscience and Religion

Answer 26

Australia was one of the original countries to support the UDHR. Article 18 of the UDHR states:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. In other words, we all have the right to our beliefs, to have and practice a religion, have no religion or to change out beliefs and religion.

Question 27

International Covenant on Civil and Political Rights (ICCPR)
Development of Right to Freedom of Thought, Conscience and Religion

Answer 27

In 1966, the RtFoTCR was included in the ICCPR. The ICCPR is one of the seven major international human rights treaties adopted by Australia and reflected in our domestic law.

Question 28

Australian Statute Law
Development of Right to Freedom of Thought, Conscience and Religion

Answer 28

Whilst there is no national rights charter, Cth and State parliaments have passed legislation that protects the right to freedom of religion.
For example, the following laws make it unlawful to discriminate against a person based on their religion or belief in employment, accommodation, education, membership and sport;
> Australian Human Rights Commission Act 1986 (Cth)
> Racial and Religious Tolerance Act 2001 (Vic)
> Equal Opportunity Act 2010 (Vic)

In addition, S14 of the VCHRR protects Victorians freedom of thought, conscience, religion and belief.

Question 29

Australian Constitution
Development of Right to Freedom of Thought, Conscience and Religion

Answer 29

S116 of the Constitution provides Australians with a limited right to freedom of religion. The Cth Parliament cannot pass a law that;
> Establishes an official, national religion
> Imposes any religious observance
> Prohibits the free exercise of any religion. H/w this can be limited if the practicing of a religion breaches Australian law or threatens nat. security.
> Requires a religious test as a requirement for holding any Cth office (e.g. working as a member of the AFP)

Question 30

Defense of Government Schools (DOGS)
Attorney-General (Vic); Ex Rel Black v Commonwealth (1981) 146 CLR 559

Development of Right to Freedom of Thought, Conscience and Religion

Answer 30

In 1981, the HC was required to determine whether leg. passed by the Cth Plmt that allowed it to give financial assistance to non-gov schools in Aus. states (incl. religious schools) was in breach of s116 of the Constitution - bans Cth from est. religion or imposing religious observance. HC decision reinforced the right to FoR and confirmed that the Cth cannot est. religion. H/w legislation valid b/c Constitution states the Cth cannot make a law est. any religion compared to US 1st Amendment that Congress cannot make law respecting an est. of religion.

Question 31

Conflicting Views

Answer 31

Recently, there has been ongoing debate in Aus. society about the extent to which the right to FoR should be protected under statute law.
In 2017, the Cth Gov passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) which allowed for marriage equality.
In response some religious org. have pressured the gov. to legislate to protect their right to hold religious beliefs and foster those beliefs within their org.

Question 32

Conflicting Views
Religious Discrimination Bill 2019 (Cth)

Answer 32

Strongly criticized by various human rights org., it was revised and reintroduced into Plmt in Nov 2021.
H/w the new bill contained yet another controversial section, one which would allow individuals to make ‘statements of belief’ that otherwise might breach anti-discrimination laws, provided that the statement did not harass, threaten, intimidate or vilify a person or group.
After much criticism, the bill passed HoR in Feb 2022 but failed to pass the Senate before the May 2022 election and thus lapsed.