Human rights report Flashcards
What are two different types of rights
Express rights (written in constitution), Implied rights (rights which are implied in the constitution)
What’s an example of an express right (aus)
s41, right to vote
What are two examples of implied rights (name the case as well)
right to political communication (Nationwide news v Wills 1992)
Right to vote (Roach v Electoral Commissioner 2007)
What was an example of Australia’s attempt at a statute to be a bill of rights and why did it fail
Human Rights and Equal Opportunity act 1986
HC found it was not a chapter 3 court and did not have any legal authority
(Brandy v Human Rights and Equal Oppurtunity Commission 1995)
Whats an example of a ratification act in Australia
Racial Discimination act 1975 (Convention of the Elimination of All Forms of Racial Discrimination)
What is and explain a committee in regards to human rights in Australia
Human Rights Committee (Joint standing) (Human Rights act 2011
Scrutinises legislation and issues reports on the compatibility of statutes with international agreements
What is an example of statutory rights being vulnerable
Intervention, in NT Howard gov forced remote communities into medical checks etc
To do this legally, amendments were made to the Racial Discrimination Act 1975, as stat. rights are vulnerable to government who are determined to suspend them
What are the two examples of states passing statutes of their own in regards to human rights
Charter of Human Rights 2006 (Vic)
Human Rights Act 2004 (ACT)
List the Pro’s and Con’s of the Charter of Human Rights
P-promoting human rights, and rights culture, increasing awareness, audits by the Commission have lead to improvement (better treatment of women in prisons)
C-limits judges power to ensure human rights because gov can override the charter, party must take a case to the court by ‘piggy backing’ on another Eg Castles v Secretary to the Department of Justice 2010, used the Victorian Corrections Act (IVF)
List the Pro’s and Con’s of the Human Rights Act
P- Complainants can take a case to the courts without piggy-backing, same as the charter
C- Too much power to judges and that the committee declaring a law incompatible doesn’t actually have much authority.
What are two common law rights? (aus)
Right to silence
Presumption of innocence
What is an example of common law rights being breached (aus)
Counter terrorism, significatn powers granted to ASIO and agencies, right to fair trial and presumption of innocence breached, illustrates how executive can persuade parliament into overriding common rights
What is an example of breaches to international human rights
Refugees, Migration act 1958, offshore detention and resettlement, towing boats are all criticised by UN
How can parliament ratify statutes
s51 (xxix)-external affairs power
How does Australia uphold and diminish political representation
- compulsory voting gives accurate expression of the will of the people
- Does not represent age, gender or education evenly
- donations lead to unequal representation
How does Australia uphold and diminish participation
- compulsory voting cause everyone to participate
- broad spectrum of parties winning seats means diverse participation
- pressure groups are examples of groups participating
- declining no. of young voters=lack of participation
- unequal due to donations
- declining party membership=less participation
How does Australia uphold and diminish rule of law
- constitutional limits on power, equally applied laws
- retrospective laws can occur (Plaintiff M68/2015 v Minister of Immigration)
- mandatory sentencing (WA) interfering with judicial discretion +anti terror laws
How does Australia uphold and diminish Judicial Independence
- powerful independent judiciary s71, s72
- holds exec. to account (Williams no. 1, M70 v Minister for Immigration)
How does Australia uphold and diminish natural justice
- fair procedures
- common law rights (Dietrich case)
- expensive and time consuming
- disproportionate no. of aboriginals being prosecuted
What is the US’ way of protecting rights
judicial supremism, as Supreme Court is responsible of interpreting bill of rights
What is an example of the SC interpreting the constitution
District of Columbia v Heller 2008
Indicates the amount of power appointed judges have
What is the biggest problem with having a constitutional bill of rights?
Inflexible and outdated, eg 2nd amendment
What are two examples of statutes protecting rights? US
Civil Rights Act 1964
American with Disabilities Act 1990
Why does America not sign international covenants anymore
Because it sees them as a threat and sees itself above everyone else EG. No US soldier can appear before the ICC for war crimes
How does America uphold and diminish Representation
- 2 year, short terms in Congress keeps representation updated
- simple voting system establishes a strong link between electors and congressmen
- Voting system removes any minor parties from getting formal representation
- Gerrymandering is a common problem
- Donations are another critical problem
How does America uphold and diminish Participation
- Primaries and Caucuses allow people to participate
- high voter turn out for voluntary
- Voluntary=disenfranchised masses
- Duopoly of power means that minor parties cannot formally participate
- pressure groups over-participate
How does America uphold and diminish Rule of Law
- Greater separation of powers than Aus
- Article 1, Section 9 clause 3 of constitution stops parliament from passing retrospective legislation
- War on Terror, imprisonment outside of US without trial violates Rule of Law
How does America uphold and diminish Judicial Independence
- Specific constitution means SC has arguably more power than HC
- election of judges by state, exposing them to partisanship
How does America uphold and diminish Natural Justice
- highly litigious culture
- legal aid services are underfunded
- access is blocked to some due to growing income inequality
What are some reforms that improved representation
Senate voting reforms 2016
Electoral reforms 1984
Examples relating to donations
Howard donation reforms 2000
