Human Rights

Question 1

What is an INTERNATIONAL DECLARATION?

Answer 1

This is a non-binding agreement between countries that sets out the aspirations (hopes) of the parties to the agreement.

Question 2

What is an INTERNATIONAL TREATY?

Answer 2

This is a legally binding agreement between countries or intergovernmental organisation, in which they undertake to follow the obligations set out in the agreement and incl them in their own local laws.

Question 3

Does INTERNATIONAL LAW automatically become Australian law?

Answer 3

No. Even if Australia signed the TREATY. Parliament must decide how to put treaties into law in Australia.

A bill MUST BE introduced into Parliament setting out the treaty obligations and then Parliament must vote to pass it. (X always the case)

Question 4

What are some important HUMAN RIGHTS declarations?

Answer 4

Universal Declaration of Human Rights (most known)

These set broad principles on the protection of human rights - Signed after WWII

X BINDING

Leads the creation of Human Right treaties

Question 5

What are some important HUMAN RIGHTS treaties?

Answer 5

Convention on the Rights of the Child

Convention on the Elimination of All Forms of Discrimination Against Women

Convention on the Elimination of All Forms of Racial Discrimination

Conventional Relating to the Status of Refugees

Question 6

What are the different RIGHTS through the AUSTRALIAN CONSTITUTION?

Answer 6

Express Rights
Implied Rights
Rights in the structure of the Australian Constitution
Enforcement of Constitutional Rights

Question 7

What is EXPRESS RIGHTS?

Answer 7

This is a right explicitly stated in the wording of the Australian Constitution.

Question 8

What are the 5 EXPRESS RIGHTS protected in the AUSTRALIAN CONSTITUTION?

Answer 8

Right to free interstate trade and commerce

Right to not be discriminated against by the Commonwealth on the basis of the state where you reside

Right to receive ‘Just terms’ when property is acquired by the Commonwealth

Right to trial by jury for indicatable Commonwealth offences

Right to freedom of Religion

Question 9

Why focus on the RIGHT TO FREEDOM OF RELIGION (express rights)?

Answer 9

The Commonwealth Parliament cannot pass a law that:

Establishes a particular religion as the official national religion

Requires people to recognise a religious ceremony or formality

Prevents people from practising their religion

Requires a religious test as a requirement for holding any commonwealth office

Question 10

What is IMPLIED RIGHTS?

Answer 10

This is not explicitly stated in the wording of the Australian Constitution

Considered to exist by the High Court’s interpretation of the Constitution’s meaning

When interpreting the law, the High Court can decide that a word or phrase implies that a right exists even if it is not explicitly stated

Question 11

Why focus on the RIGHT TO FREEDOM OF POLITICAL COMMUNICATION?

Answer 11

Some people believe that the implied right to freedom of political communication needs to be restricted.

The high Court has ruled in various cases that Australians have the right to Freedom of Political Communication.

Question 12

What is the RIGHTS IN THE STRUCTURE OF THE AUSTRALIAN CONSTITUTION?

Answer 12

These are the representatives in government.

Systems and concepts that are incl within the text and structure of the Constitution also indirectly protect some rights of the Australian people.

EG. Individuals elected to the Senate and the House of Representative must be directly chosen by the people.

Question 13

What is the Enforcement of Constitutional Rights?

Answer 13

All rights protected by the Australian Constitution can be fully enforced by the High Court.

If the High Court declares legislation invalid, the parliament can:
1. Remove the unconstitutional provisions from the legislation
2. Try to change the Constitution by holding a referendum or public vote.

Question 14

What are the strengths of PROTECTION OF RIGHTS through the Australian Constitution?

Answer 14

Express rights cannot be changed unless through a referendum; that is, with the support of the community via a public vote

The implied freedom of political communication shows that rights can be interpreted and clarified by the High Court

There are some rights that are indirectly protected through the text and structure of the Constitution

Question 15

What are the weaknesses of PROTECTION OF RIGHTS through the Australian Constitution?

Answer 15

Rights contained in the constitution are difficult to change due to the referendum process. Therefore, rights may lag behind changes in community attitudes.

Very few rights are expressly protected by the constitution

The rights that are expressly protected in the Constitution are very limited in scope.

Question 16

What is a known case for IMPLIED RIGHTS TO FREEDOM OF POLITICAL COMMUNICATION?

Answer 16

Nationwide News v Wills 1992

Gov department creates a regulatory body and as a part of the legislation makes it an offence to criticise this body

Newspaper argues that they have a right to express themselves in matters of political interest. Court agrees and states that this is an implied right for all Australians

Question 17

What is the PROTECTION OF RIGHTS THROUGH STATUTES?

Answer 17

Rights are protected by Victorian and Commonwealth legislation.

While these rights are protected, they are not permanently guaranteed. (Parliament has the power to cancel an existing right from statute law)

Commonwealth parliament can make laws that are set out in the Constitution. yet they CANNOT laws on other areas and make laws that BREACH CONSTITUTIONAL RIGHTS.

Question 18

What is the VICTORIAN CHARTER OF RIGHTS AND RESPONSIBILITIES?

Answer 18

This is also known as the human rights charter, which sets out basic rights, freedom and responsibilities for people of Victoria.

The Human Rights Charter requires the Victorian Parliament, state and local gov departments and organisations to act in a manner that complies with the Human Rights Charter.

Question 19

What are some BASIC RIGHTS that belong to the Victorian people?

Answer 19

The right to life

The right to protection from torture and cruel

The freedom of movement

The freedom of though science religion and belief

The right to take a part in public life.

Question 20

What are some RIGHTS to help ensure the legal system achieves justice?

Answer 20

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

The right to assistance from an interpreter

The right to silence

Question 21

What are the STRENGTHS of STATUTE LAW?

Answer 21

Parliament can amend statues to incorporate further rights, particularly as society changes

Statues are often detailed and precise, and protect human rights specifically, rather than rights being implied

Rights contained in statues are generally enforceable and need to be recognised by government organisation

Question 22

What are the WEAKNESSES of STATUTE LAW?

Answer 22

As the Supreme law-making body, Parliament can amend statutes, so rights may become limited or no longer exist.

Parliament can incl. limitations or restrictions in statutes so protected rights are not always absolute

Statutes do not always enable a person to be awarded any damages if their rights are breach

Question 23

What are types of COMMON LAW RIGHTS?

Answer 23

The right to silence

The right to a fair trial

the right to freedom of movement

the rights of Indigenous people

The rights of transgender people to marry

Question 24

What are codification or abrogation of COMMON LAW RIGHTS?

Answer 24

1. Court judgement that can establish human rights can be codified by parliament.
2. Parliament can pass legislation that confirms a human rights.

Question 25

What are the STRENGTHS of COMMON LAW?

Answer 25

Courts are independent of parliament and can establish precedent free from political pressures

courts can make decisions to establish rights in areas where Parliament have not establish rights

Courts are able to infer rights without needing to consider how those rights may need to be limited

Historically, courts have been able to protect rights and parliament has not overly interfered with the common law rights by abrogating them.

Question 26

What are the WEAKNESSES of COMMON LAW?

Answer 26

Common law rights are not always easy to define or identified (as opposed to statutory rights)

Court 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

judges are limited in applying the law to the case that is before them and cannot extend their decision rights or issues that are not dispute in the cases.

Question 27

What is BILL OF RIGHTS (LAW REFORMS)?

Answer 27

Australia is the only Western democracy that does not have a national charter or bill of rights

it is commonly agreed that if Australia does adopt one, it would be adopt a statutory approach

Question 28

How is statutory protection increased for minority groups?

Answer 28

A possible reform to improve the protection of rights in Australia is to amend existing legislation to improve legal processes, gov policy, and the provision of services in a range of areas.

Question 29

What are some implement changes AUS GOV has become underpressure to improve rights and protection for?

Answer 29

Indigenous Australians

Asylum Seekers

People accused of terror-related crimes

People with a Disability.