Human Rights Flashcards
What is an INTERNATIONAL DECLARATION?
This is a non-binding agreement between countries that sets out the aspirations (hopes) of the parties to the agreement.
What is an INTERNATIONAL TREATY?
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.
Does INTERNATIONAL LAW automatically become Australian law?
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)
What are some important HUMAN RIGHTS declarations?
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
What are some important HUMAN RIGHTS treaties?
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
What are the different RIGHTS through the AUSTRALIAN CONSTITUTION?
Express Rights
Implied Rights
Rights in the structure of the Australian Constitution
Enforcement of Constitutional Rights
What is EXPRESS RIGHTS?
This is a right explicitly stated in the wording of the Australian Constitution.
What are the 5 EXPRESS RIGHTS protected in the AUSTRALIAN CONSTITUTION?
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
Why focus on the RIGHT TO FREEDOM OF RELIGION (express rights)?
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
What is IMPLIED RIGHTS?
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
Why focus on the RIGHT TO FREEDOM OF POLITICAL COMMUNICATION?
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.
What is the RIGHTS IN THE STRUCTURE OF THE AUSTRALIAN CONSTITUTION?
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.
What is the Enforcement of Constitutional Rights?
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.
What are the strengths of PROTECTION OF RIGHTS through the Australian Constitution?
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
What are the weaknesses of PROTECTION OF RIGHTS through the Australian Constitution?
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.
What is a known case for IMPLIED RIGHTS TO FREEDOM OF POLITICAL COMMUNICATION?
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
What is the PROTECTION OF RIGHTS THROUGH STATUTES?
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.
What is the VICTORIAN CHARTER OF RIGHTS AND RESPONSIBILITIES?
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.
What are some BASIC RIGHTS that belong to the Victorian people?
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.
What are some RIGHTS to help ensure the legal system achieves justice?
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
What are the STRENGTHS of STATUTE LAW?
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
What are the WEAKNESSES of STATUTE LAW?
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
What are types of COMMON LAW RIGHTS?
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
What are codification or abrogation of COMMON LAW RIGHTS?
- Court judgement that can establish human rights can be codified by parliament.
- Parliament can pass legislation that confirms a human rights.
What are the STRENGTHS of COMMON LAW?
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.
What are the WEAKNESSES of COMMON LAW?
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.
What is BILL OF RIGHTS (LAW REFORMS)?
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
How is statutory protection increased for minority groups?
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.
What are some implement changes AUS GOV has become underpressure to improve rights and protection for?
Indigenous Australians
Asylum Seekers
People accused of terror-related crimes
People with a Disability.
