human rights

Question 1

Define human rights

Answer 1

While there is no single universally accepted definition of human rights, it can be defined as ‘basic freedoms or standards that promote and uphold the dignity of all people, and are guaranteed by a moral sense of duty or by the law’

Question 2

Examples of how human rights have developed over time

Answer 2

• First Nations people not recognised in the Australian population count until 1967
• The White Australia police was formally abolished in 1973
• Same-sex sexual activity between men was a crime until the 1970s
• Marriage equality was not recognised in Australia until 2017

Question 3

Define international treaty

Answer 3

An international treaty is a legally binding agreement between two or more countries. It establishes rules, guidelines and responsibilities of countries and international organisations, but does not govern the behaviour of the country’s citizens. That is the responsibility of domestic law.

Question 4

Define ratification

Answer 4

Ratification is confirmation by a nation’s parliament of its approval of an international treaty signed by its government. The parliament expressly passes legislation that requires it by law to adopt the various rights and responsibilities set out in the treaty.

Question 5

The Universal Declaration of Human Rights

Answer 5

Sets out most of the basic human rights that all nations and governments, including Australia, should strive to promote and uphold.

E.g.
- all people are born free and equal in dignity and rights
- everyone is entitled to the same rights and freedom without discrimination of any kind
- everyone has the right to life, liberty and security of person
- no one should be subject to slavery, torture, or cruel or degrading treatment or punishment

Question 6

Other international treaties or declarations

Answer 6

The Universal Declaration of Human Rights has inspired the creation of more that 80 international treaties, declarations and agreements

E.g.
- Convention relating to the status of refugees
- International convention on the elimination of all forms of racial discrimination
- Convention on the elimination of all forms of discrimination against women
- Convention on the right of the child
- Conventions on the rights of persons with disabilities
- Declarations on the rights of indigenous people

Question 7

Define international declaration

Answer 7

a non-binding agreement between countries that sets out the aspirations of the parties to the agreement

Question 8

How are human rights protected in Australia?

Answer 8

Statute law, common law, the Australian Constitution

Question 9

Examples of rights protected by statute law

Answer 9

• the right to privacy
• the right to security of person
• the right to freedom from discrimination
• the right to vote

Question 10

The Victorian Charter of Human Rights and Responsibilities

Answer 10

An Act of Parliament that promotes and protects the basic human rights of people who live in Victoria.

Question 11

What rights are protected in the Human Rights Charter?

Answer 11

The Human Rights Charter outlines 20 basic human rights, including…

• the right to life
• the right to protection from torture and cruel, inhuman or degrading treatment
• freedom of movement
• freedom of though, conscience, religion, and belief
• the right to take part in public life
• the right to recognition and equality before the law
• the right to a fair hearing
• the right to not be tried or punished more than once
• the right to be provided with legal aid if the denial of such assistance would lead to an unfair hearing/trial
• the right to free assistance from an interpreter if necessary
• the right to not be compelled to give evidence against themself or to confess guilt

Question 12

General limitation clause

Answer 12

The ‘general limitation clause’ is a section of the Human Rights Charter which allows public authorities (e.g. the Victorian Government) to restrict human rights in situations where it is reasonable and justified.

E.g. COVID-19 lockdowns imposed restrictions on freedom of movement

Question 13

Strengths of statute law in protecting human rights

Answer 13

• Parliament can create new legislation and amend existing statutes to incorporate further human rights, particularly as the views and values of the community changes
• Details, precise and specific, rather than implied
• Generally enforceable and recognised by government organisations
• Parliament can pass laws quickly to protect additional human rights

Question 14

Weaknesses of statute law in protecting human rights

Answer 14

• Parliament can amend statutes to restrict or cancel existing human rights
• Parliament can include exemptions, limitations or restrictions in statues, so protected human rights are not always absolute
• Statues do not always enable a person to be awarded any damages if their human rights are breached
• Human rights protected by statute law are not as well protected as constitutional rights

Question 15

How can human rights be protected under common law?

Answer 15

• through the courts establishing new human rights
• through the courts recognising and upholding human rights contained in statute law
• through the courts determining the validity of human rights legislation

Question 16

Examples of Australian courts establishing or strengthening common law rights

Answer 16

• the right to silence
• the right to a fair trial
• the right to legal representation
• the right of transgender people to marry
• the right to humane treatment when denied liberty
• the right to freedom of movement
• the right of First Nations people to not be denied their connection to their Country
• the right to freedom of thought conscience and religion or belief

Question 17

Determining the validity of human rights legislation

Answer 17

• Courts have power to declare Acts of Parliament invalid if they are made outside or beyond parliament’s law-making powers (ultra vires)
• the High Court can also declare legislation to be invalid if it breaches a right protected by the Australian Constitution

Question 18

Codification of common law

Answer 18

Court judgements can be codified by parliament. This means that parliament passes legislation that reinforces and endorses the legal principles establish by a court in its ruling.

Question 19

Abrogation of common law

Answer 19

Parliament can also abrogate (cancel) human rights that have been established in common law.
However, it cannot override rights established in High Court judgements involving the interpretation of the Australian Constitution.

Question 20

Strengths of common law in protecting human rights

Answer 20

• courts are independent of parliament and can establish precedent free from political pressures
• courts can make decision to establish human rights in areas where parliament has not established human rights
• courts can infer human rights without needing to consider how those right may need to be limited
• courts can highlight to parliament gaps in the law, leading to parliament updating law
• historically, parliament has not overly interfered with common law rights

Question 21

Weaknesses of common law in protecting human rights

Answer 21

• not always easy to define/identify
• courts must wait for a case to come before them to be able to declare the existence of human rights
• parliament can abrogate common law rights
• courts are reluctant to recognise certain human rights and leave it to parliament
• judges are limited in applying the law to the case before them and cannot extend their decision to issues not in the dispute

Question 22

How does the Australian Constitution protect human rights?

Answer 22

• express rights
• implied rights

Question 23

Define express rights

Answer 23

Define express rights

Question 24

Name the express rights

Answer 24

• right to free interstate trade and commerce
• right to not be discriminated against by the commonwealth based on state of residence
• right to receive ‘just terms’ when property in acquired by the Commonwealth
• right to trial by jury for Commonwealth indictable offences
• right to freedom of religion

Question 25

How can the Constitution be changed?

Answer 25

With the approval of the Australian people, through a successful referendum, which requires a double majority

Question 26

Define implied rights

Answer 26

Rights that are not expressly stated in the Australian Constitution but are considered to exist through interpretation by the High Court

Question 27

Example of implied rights

Answer 27

• freedom of political communication

Question 28

How can constitutional rights be enforced?

Answer 28

The High Court can declare the Commonwealth’s law unconstitutional and invalid
If the High Court declares legislation invalid, Parliament must…
–> amend the legislation to remove the unconstitutional provisions
–> try to change the Constitution by holding a referendum

Question 29

Strengths of protecting human rights through the Australian Constitution

Answer 29

• Express rights can only be abolished or changed with the support of the Australian people
• Human rights can be implied and recognised by the High Court even if not expressly written in the Constitution
• All rights are enforceable through the High Court
• The High Court can interpret the meaning of the words and phrases in the Constitution, meaning it can keep pace with changes in community values and remain relevant

Question 30

Weaknesses of the Australian Constitution in protecting human rights

Answer 30

• changing express rights through the referendum process is difficult for many reasons
• very few human rights are expressly protected by the constitution and the ones that are are limited
• it is expensive and time-consuming to take a case to the high court to challenge a statute that breaches any right contained in the constitution
• the high court cannot interpret the meaning of the constitution and declare an infringement of rights until a relevant case is brought before it