Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

HSC legal studies > Human rights - Promoting and enforcing human rights > Flashcards

Human rights - Promoting and enforcing human rights Flashcards

1
Q

what does signing a treaty mean

A

signing a treaty indicates a states agreement to the principles of the treaty - however it is NOT binding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

define ratified

A

sign, or give formal consent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

define monlist system

A

a legal system where a treaty becomes law as soon as its ratified by a country

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

define dualist system

A

a legal system that does not deem treaties enforceable
domestically until and unless they are incorporated into
domestic law, usually by passing similar legislation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

what is the impact of state sovereignty on enforcing HR

A

MAJOR issue in HR as it means that no foreign state or law can interfere in another states domestic jurisdiction unless it has the consent of that state - states can choose not to acknowledge certain human rights

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

define state sovereignty

A

refers to the ultimate law making power of a state - its independence and freedom from external interference in its affairs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

what are the 2 main roles of the constitution in protecting HR in australia

A
  • lays down the system of government through which HR are recognised including the SOP and the DOP and the role of the high court
  • source of some specific HR rights (express and implied)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

what is the SOP and how does it protect HR

A

refers to how power is separated between the three branches of government
- legislature (law making) - education act 1990 (nsw)
- executive (enforces laws) - police arresting wei tang for hts
- judiciary (interpreting laws) - ACT v Cth –> interpreted the right of political communication

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

what is the DOP and how does it protect HR

A

refers to the division of power between the states and the commonwealth
- exclusive
–> s51 - external affairs power - gives the Cth power to legislate on external affairs - make make laws to uphold international treaties
- concurrent
- residual

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

how does the HCA protect HR

A

interpretation and application of the constitution
- implied rights eg. act v cth –> freedom of political communication
- original and appellate jurisdiction eg. R v Tang - upheld the decision that wei tang was guilty of HTS under the 1995 Criminal code act

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

what are express rights

A

rights that are written
eg. s80. right to trial by jury (for indictable federal offences)
s116. freedom of religion

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

what are implied rights

A

rights that are implied through the constitution - interpreted by the HCA
eg. freedom of political communication

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

pros of the constitution in protecting HR

A
  • has SOME rights included
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

cons of the constitution in protecting HR

A
  • remedies available when a constitutional right is breached are limited if you can’t reach the high court
  • the constitution wasn’t created to protect rights
  • most people are unaware of their constitutional rights
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

how does statute law protect HR with example

A

they protect HR through the passing of parliament made laws that uphold international treaties on HR
MAIN way of protecting rights in aus
eg. fairwork act 2009 (cth) - provides labour rights and upholds a.23,4 of the udhr

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

what limits the effectiveness of statute law in protecting HR

A

statutes aren’t fixed –> can be taken away by an act of parliament

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

how does common law protect HR

A
  • uphold the rule of law –> ensures equality under the law –> everyone has the right to a fair trial
  • sets precedent
  • TALK about the high court
    –> original and appelate jursidiction
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

what limits the effectiveness of common law in protecting HR

A
  • doesn’t offer absolute protection because common law rights aren’t fixed –> parliament act can over ride common law
  • can’t develop new rights as judgements will only define rights on a case by case basis
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

how do courts and tribunals protect HR?

A

applying and enforcing HR as well as interpreting and developing HR laws
- high court
- ncat
- AHRC

20
Q

what is the role of the high court in protecting HR

A
  • has the power to set binding precedents and to overturn state or cth legislation where it conflicts with the constitution
  • orginal jurisdiction - constitutional cases eg. deitrich v the queen
  • appelate jurisdiction - eg. r v wei tang
  • interprets the implied rights in the constitution - implied rights
21
Q

what is the AHRC

A

an independent national body established under the Australian human rights commission act 1986
- had an important influence on australia’s laws eg. 1997 bringing them home report resulted in an apology to indigenous victims separated from their families from Kevin Rudd PM

22
Q

what is the role of the AHRC

A

→ receiving complaints into breaches of HR
→ promotes public awareness about HR and provides legal advice
→ conducts public enquiries into human rights
→ gives advice and makes submissions to parliament and govts on the development of laws, policies and programs consistent with HR

23
Q

what is the role of NGOS in protecting HR

A
  • Research and report on HR issues
    -Makes submissions to state and cth parliament or law reform bodies on HR
  • Works in the field of HR with victims
  • Shapes public and political opinion and exposes violations of human rights
24
Q

how are NGOS limited in protecting HR

A

non legal - not enforceable
rely on donations for funding

25
Q

what is the role of media in protecting HR

A
  • Impact public opinion and government action
  • Reports on both HR issues in australia and internationally
26
Q

how is the media limited in protecting HR

A
  • not enforceable
27
Q

what are the arguments for introducing a charter of rights in aus

A
  • High community support
  • Redeeming shortcomings of existing HR protections
  • Protects marginalised and disadvantaged
  • Improving the quality and accountability of the govt
  • Bringing australia into line with other democracies - international goodwill
28
Q

what are the arguments against introducing a charter of rights in aus

A
  • The adequacy of current HR protections in australia
  • Undermining a tradition of parliamentary sovereignty, including transferring legislative power to unelect judges
  • No better hr protection is guaranteed
  • Democratic processes and institutions offer better protection of rights
  • Major economic cost
29
Q

what is the role of the UN in protecting HR

A

it plays a crucial role in defining, promoting and protecting HR
- helps maintain the agreed global standards, identify violations, pursue remedies and encourage improvement

30
Q

what are the main UN bodies

A

UN general assembly
UN security council
Economic and social council
UN secretariat
International court of justice

31
Q

how does the UNSC protect HR

A
  • has power to to maintain international peace or security - can authorise military actions, sanctions or peacekeeping operations
  • has veto powers (con?)
32
Q

what is the OHCHR and its role in protecting HR

A

office of the high commissioner for human rights (administrative agency under the UN secretariat)
- offers its support and expertise to the various HR monitoring bodies and systems within the UN
- overseas the HR council

33
Q

how does the ICJ protect HR

A

has the jurisdiction to settle disputes submitted to it by member states and provide advice on matters of international law submitted to it by international organisations and the UNGA

34
Q

what is the UN HR council and its role in protecting HR

A

united nations human rights council (subsidiary of the UNGA)
- responsible fpr the promotion and protection of HR globally
- chief purpose = examine situations in which HR violations are occurring and make recommendations back to the UNGA
- can request the UNSC take action to stop violations

35
Q

what are the pros and cons of the UN in protecting HR

A

pros
- highly effective in facilitating the protection of HRS eg. facilitation of the UDHR, ICCPR and the ICESCR
- powers of enforcement in limited circumstances and this has assisted with the protection of peace rights

cons
- limited limitation of effectiveness is the structure and the operations of the UN
- all countries are in the GA but it has limited power
- not all countries are part of the UNSC or the UNHR council
- the UNSC permanent members have the right to veto any solutions - only 1/5 has to veto for a fail

36
Q

how do IGOS protect HR

A

IGOS = a group of members working together on issues of mutual self interest - often the interest is HR
they can establish rules, norms, and standards that member states can adopt to regulate their behaviour and promote cooperation
UN is the most significant IGO
EU is also an IGO
NATO - peace and security

37
Q

how do court and tribunals protect HR

A

international courts and tribunals protect HR by establishing specific courts/ tribunals for certain issues? (complete bullshit)

38
Q

how do NGOS protect HR internationally

A

NGO = an organisation that works independent of any govt
- promotes HR and helps ensure better govt compliance by investigating, researching, documenting, and publishing cases of HR violations eg. amnesty international -> campaigns internationally to prevent the violation of peoples HR

39
Q

how does the media protect HR internationally

A

investigates, reports and exposes cases of HR violations which can have a significant impact on public opinion and prompt govt action

40
Q

how are HR incorporated into domestic law

A
  • rights guaranteed under the constitution eg. right to vote + freedom of religion
  • federal and state laws
  • common law eg. mabo decision
  • courts and tribunals
  • publicity and pressure from NGOS and the media
41
Q

what are the cons of NGOS and media in protecting HR

A

they are only promotional and NOT enforceable
they rely on funding for operations

42
Q

what are the cons of IGOS in the protection of HR internationally

A

the cost and time involved in setting up the IGO

43
Q

what are the cons of courts and tribunals in protecting HR

A
44
Q

what is the international criminal court and its role in protecting HR

A

ICC - hears cases relating to CAH, war crimes, genocide and crimes of aggression - has the power to prosecute individuals rather than states
- founded under the rome statute 1998
- 9 convictions

45
Q

cons of the the ICC

A
  • difficult to locate and extradite individuals
  • limited resources available
  • time and cost in investigating cases

HSC legal studies (11 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions