Human rights Flashcards
define express rights
identity one
Express rights are rights that are stated in the Australian Constitution. Express rights are entrenched, meaning they can only be changed by a successful referendum.
The Australian Constitution protects five express rights of the Australian people.
eg. the right to freedom of religion.
- free interstate trade and commerce
- trial by jury for indictable commonwealth offences
explain human rights
A right is a basic freedom or standard that promotes and upholds the dignity of all people and is guaranteed by a moral sense of duty or by law.
eg. First Nations right - native title act 1993 (grants ownership to FNP) protects the human rights of FNP by enforcing the notion that FNP can not be considered ‘alien’ in a country that they have originated from.
8 marks
Common law protecting human rights
example of common law
Common law- court made laws or judge made laws.
- law established by the courts through precedent.
JS
Strengths
1. courts are independent of parliament and can establish precedent free from political pressures.
2. courts can highlight to parliament gaps in the law that protects human rights, which may encourage parliament to change the law to further protect rights.
3. Court judgements that establish human rights may also be codified by parliament.
Weaknesses
1. Parliament, as a supreme law making body, can abrogate or override common law rights through legislation.
- This means that even established common law principles can be altered if Parliament enacts a statute that conflicts with them.
2. Courts must wait for a case to come before them to be able to declare the existence of human rights.
eg. the Mabo case - recognised land rights for indigenous Australians.
was codified into the native title act 1993
6 marks
Statute law protecting human rights
Statute law - parliament made law, also known as Acts of Parliament or legislation.
JS
Strengths
1. Statutes are often detailed and precise, and protect human rights specifically, rather than being implied.
- Parliament can create new legislation and amend existing statutes to incorporate further human rights, particularly as the views and values of the community change.
eg. the native title act 1993
Weaknesses
1. Statutes do not always enable a person to be awarded any damages if their human rights are breached.
2. As the supreme law making body, parliament can amend statutes to restrict or cancel existing human rights.
victorian rights charter
example of one of them
the charter of human rights and responsibilities act 2006 (vic).
main purpose is to protect and promote human rights.
outlines 20 basic human rights
eg. a fair hearing
- a right to a fair proceeding decided by a competent, independent and impartial court or tribunal.
- set out rights for all Victorians, including First Nations people.
Love case
(memorise)
FOS
FACTS:
Love and Thoms, two First Nations men, faced being deported from Australia after being convicted of serious indictable offences. Both men born overseas.
The Commonwealth government used its power to make laws on ‘aliens’ under s51(xix) of the Constitution.
The two men challenged the Cth gov’s decision to deport them as they argued they are First Nations Australians.
OUTCOME:
The High Court ruled in favour of the two men and agreed that First Nations Australians can not be considered immigrants because they have an undeniable connection to land.
SIGNIFICANCE:
On the legal system, the meaning of ‘aliens’ is clarified in S51 (xix). The Cth gov can not make immigrations laws that apply to First Nations peoples because they can not be considered to belong to another place.
On individual rights, the rights of First Nations peoples are expanded through declaring their sense of identity and belonging to Australia can not be denied or changed by the Cth Parliament. Therefore, First Nations peoples can not be subject to Cth immigration laws nor be deported.
