Human rights in Australia and the US Flashcards
Maximalist vs minimalist constitution
Australia is minimalist as it relies on conventions
USA is maximalist Maximalist as there are no conventions meaning the supreme court is very powerful as they can interpret anything in the detailed constitution- problematic as judges are appointed FOR LIFE and not elected by the people (6 conservative, 3 progressive)
Constitutional rights in Australia vs US
Australia- five express rights
US- 10 bill of rights (1st- freedoms of religion, speech, press, assembly, 2nd- right to bear arms, fifth- right to silence)
Implied right of freedom of political communication
Validity of the Political Broadcasts and Political Disclosures Act and whether it inhibited political communication necessary for democracy to function
High court ruled it was unconstitutional as it went against the implied freedom of political communication (s7 and s24 stating that parliament is directly elected by the people)
Overturning of Roe v Wade
In 1973, High Court ruled that access to abortion was a constitutional right and therefore States could not ban it, Once overturned, States could make their own rulings (10th amendment), 14 States have near-total bans and 6 others have limited access (time frame), Doctors can lose their license, patients can be fined and face jail time
Example of first amendment rights
2023- Lorie Smith, a web designer, said she was deterred from expanding her graphic design business to wedding websites as she would have to service queer couples arguing this went against religious freedoms, High Court ruled that freedom of speech was being infringed
Judicial supremacy
Reliable protection because courts are independent, courts hold lots of power
Parliamentarianism
Power to protect rights is in parliament
Constrained parliamentarianism
Parliament is limited in ability to protect rights, Westminster system- executive dominance constrains parliamentarism
Key statues in Australia
Racial Discrimination Act 1975, Sex discrimination Act 1983, Disability Discrimination Act 1992, Age discrimination act 2004, Crimes (torture) Act 1988, Human Rights Acts: ACT 2004, Vic 2006, QLD 2019
Key statues in the USA
Civil Rights Act 1964, Americans with Disabilities Act 1990, Equality Act 2019 (passed in House but not Senate)
Racial discrimination act
Unlawful to discriminate against people on the basis of race, colour, descent or national or ethnic origin, Could be seen to be limiting freedom of speech
Human rights commission 2011
Doesn’t explicitly protect rights, Educates organizations about rights, Tied with the Attorney general, Decisions aren’t binding
Civil Rights Act 1964
Prohibits discrimination on the basis of race, color, religion, sex or national origin
Common law protection in Australia and the US
Doctrine of precedent- governs creation and evolution of common law, courts can override common law, US has elevated some legal rights from common law to constitutional status (E.g 5th and 6th amendment)
Key international treaties Australia has agreed to
Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Rights of Persons with Disabilities, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Key treaties agreed to by the US
Hasn’t signed any key UN human rights treaties and covenants since 2002 (1/2 countries who have not signed the Convention on the Rights of the Child)
Influence of international law in courts
Can influence judges if there are gaps in common law or where Australian statutes are unclear, Optional protocol- opens international remedies to Australian individuals, provide citizens legal rights to communicate their human rights concerns to international bodies, Legal actions can be brought to the International Criminal Court which hears cases concerning crimes against humanity and other serious human rights abuses
Issues with international law in Australia and the US
Aus- without legislation, isn’t legally binding
US- Self-executing- don’t need Congress to pass legislation to give them effect
Role of the human rights commission and PJCHR
Established a Parliamentary Joint Committee on Human Rights (PJCHR) Evaluates legislation for compliance with human rights
Strengths of protecting the rights of First Nations peoples
Racial discrimination act 1975, Declaration on the Rights of Indigenous Peoples was adopted by the UN in September 2007 and the Aus Gov announced their support in 2009, 11 Indigenous people in parliament (nearly 5%)
Issues with the protection of First Nations peoples
8 Indigenous people died in custody during 2021-2022 which has not been seen since 2016-2017, Every 4 years Australia has to prepare a report and present it to United Nations Committee against Torture, November 15th and 16th- Australia appeared before the committee
Committee published a report noting there is still work to be done regarding over-incarceration of Indigenous people, deaths in custody and raising the age of criminal responsibility
Improving the right protection of First Nations people
In 2023 Louise Taylor became the first Indigenous women to be appointed to ACT’s supreme court, About raising the age of criminal responsibility from 10 to 14, Currently goes against article 9 and 37 in the UN
Threat to the protection of the rights of First Nations people
Interpreter system in NT and WA doesn’t meet the needs of Indigenous people meaning many plead guilty charges they don’t understand, UN Human Rights Committee found that Australia was violating Indegenous peoples rights to enjoy their culture and be free from inteferences in their private life by not adequatly protecting them against climate change, Victorian coroner called for a reform of bail laws after Veronica Nelson, an Indigenous person, died in her cell from a condition that could have been bettered if the staff had provided adequate medical screening and recommended hospitalisation
Purpose of statutory bills of rights in Australia
Permit courts to declare laws or policies inconsistent with human rights, but not strike laws or policies down
Advantages of state and territory bills of rights
Improve government service delivery, increased awareness of human rights amongst public servants and the public (human rights training for personnel in Gov agencies), audits by the Human Rights Commission lead to improvements (E.g improvement in treatment of women prisoners in Victoria)
Disadvantages of state and territory bills
Give too much power to judges who are unaccountable officials, courts can review human rights, focus on prevention and not remedies, can’t be brought directly to court (must ‘piggyback’ complaint on another dispute
Relationship between separation of powers and statutory bills of rights in Australia
Judicial independence means the courts can fairly review and keep parliament accountable to statutory bills of rights passed. However, the courts can’t override the bill
Issues with human rights protection in the US
Income inequality increased in 2021- failing to enact permanent structural reforms (E.g Child Tax Credit was not renewed in Dec 2021 and pushed 3.7 million children into poverty), Worlds highest incarceration rate (nearly 2 million people held in a day)- people of colour vastly over-represented, Many methods of electronic surveillance to be abusive and unnecessary, called to ban ankle monitors and any devices that provide continuous location tracking
