Rights

Question 1

Ways in which rights are protected in Australia:

Answer 1

• Statute law
• Victorian Charter of Human Rights and Responsibilities
• Common law
• Australian Constitution
• International declarations
• International treaties

Question 2

Protection of rights: Statute law

Answer 2

• Rights protected by Victorian and Commonwealth legislation
• These rights are protected but not permanently guaranteed as parliament, the supreme law-making body can cancel an existing right that is protected by statute law.
  E.g. right to privacy, right to freedom of discrimination

Question 3

Protection of rights: Victorian Charter of Human Rights and Responsibilities Act

Answer 3

• Sets out basic rights, freedoms and responsibilities for people in Victoria.
• Requires Victorian Parliament, state and local government departments and organisations to act in a manner that complies with the Human Rights Charter.
  E.g. A fair hearing, right to silence, recognition and equality before the law

Question 4

Protection of rights: Common law

Answer 4

- Common law is court made law 
Types of common law rights 
- Right to silence 
- Right to a fair trial 
- Right to freedom of movement 
Examples: 
- The right to legal representation 
People accused of a criminal offence have the right to have legal representation. Judges are able to adjourn trials until an accused can access legal representation.
Example - Dietrich v The Queen  
Rights of transgender people - in a 2003 case the right for transgender people to marry was established - kevin and jennifer case. 
- ultra vires 
- codification of common law rights

Question 5

Ultra vires

Answer 5

• The courts can protect the rights of the Australian People by declaring Acts of Parliament invalid if they are made outside the Parliament’s law-making power.

Question 6

Codification of common law rights

Answer 6

• Court judgements that establish human rights can be codified by parliament. - - Parliament can pass legislation that confirms a human right.

Question 7

Strengths of common law in protecting rights

Answer 7

• Courts are independent of parliament and can establish precedent free from political pressures
• Courts can make decisions to establish rights in areas where parliament has not established rights

Question 8

Weaknesses of common law in protecting rights

Answer 8

• Common law rights are not always easy to define or identify (as opposed to statutory rights)
• Courts must wait for a case to come before them to be able to declare the existence of rights

Question 9

Protection of rights: Australian constitution

Answer 9

• Express rights
  E.g. Right to freedom of religion
• Implied rights
  E.g. Freedom of political communication
• All rights protected by the Australian Constitution can be fully enforced by the High Court.
• Any legislation that infringes upon rights can be declared invalid by the High Court

Question 10

Express rights

Answer 10

• Rights that are explicitly stated in the words of the Constitution

Question 11

Implied rights

Answer 11

• 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.
• Once a right is implied by the High Court, it can be confirmed in later cases.

Question 12

Express rights: Freedom of religion

Answer 12

The Commonwealth Parliament cannot pass a law that:

• Declares a particular religion as the 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 13

Implied rights: Freedom of political communication

Answer 13

• The High Court has ruled in various cases that Australians have the right to freedom of political communication.

Question 14

Strengths of Australian Constitution in protecting rights

Answer 14

• Express rights cannot be changed unless through a referendum; that is, with the support of registered voters via a public vote
• The implied freedom of political communication shows that rights can be implied or recognised by the High Court even though they may not be expressly written in the Constitution

Question 15

Weaknesses of Australian Constitution in protecting rights

Answer 15

• Rights contained in the Constitution are difficult to change due to the referendum process. Rights may lag behind changes in community attitudes
• Very few rights are expressly protected by the Constitution. The rights that are expressly protected are very limited in scope (e.g. the limited right to a trial by jury) and act more as a restriction on parliament than a positive right.

Question 16

International declarations

Answer 16

• Australia has signed and ratified a number of international declarations.
  E.g. Universal Declaration of Human Rights which was established after the end of WW2 by the United Nations.

Question 17

International treaties

Answer 17

• An international treaty is a formal document, signed by countries, in which they undertake to follow the law set out in the document and include it in their own local laws

Question 18

Universal Declaration of Human Rights (1948)

Answer 18

• The declaration sets out the basic human rights that all nations, governments and people should strive to uphold and promote
  E.g. Right to life, liberty and security of person
  Right to be treated equally before the law
  Corresponding Australian legislation:
• Crimes Act 1958 (Vic)
• Migration Act 1958 (Ctg)
• Criminal Code Act 1995 (Cth)
  Charter of Human Rights and Responsibilities Act 2006 (Vic)

Question 19

Eddie Mabo

Answer 19

• Under Torres Strait Islander law he became his uncle’s son as he was adopted and could inherit Mabo land
• Mabo dedicated his life to fighting for their traditional ownership of the island of Mer legally recognised

Question 20

Australia before/after colonisation

Answer 20

Before:
- Aboriginal and Torres Strait Islander peoples occupied Australia prior to British colonies arriving.
- They spoke their own language and had their own laws and customs
- An essential part of their laws and customs is a connection to the land.
After:
- The British claimed sovereignty over part of Australia and established a colony.
- The British courts applied terra nullius to Australia; the British regarded the land of Australia as nobody’s land.

Question 21

Mabo case

Answer 21

• In 1982 Mabo and four other islanders filed a
  writ in the High Court of Australia claiming customary ownership of their ancestral lands of Murray Island, challenging terra nullius.
• Without financial donations and grants, the case could not have continued.
• Lawyers worked pro bono to assist Mabo.

Question 22

Mabo case in the High Court

Answer 22

• High Court hearings concluded in May 1991.
• The decision was announced in June 1992.
• The order of the Court declared that under Australian law, Indigenous people have rights to land, that these rights existed before colonisation and still exist today - the right is called native title.

Question 23

Conflicting attitudes in relation to the case

Answer 23

• Not everyone was in favour of the High Court’s ruling and some reacted angrily, urging the Commonwealth Government to overturn it by legislation (eg. mining organisations)

Question 24

How the US protects rights

Answer 24

• Bill of Rights

- International documents

Question 25

How the US protects rights: Bill of rights

Answer 25

• A comprehensive list of the rights of the American people
• Consists of a series of amendments
• The amendments are enforceable by the US Supreme Court
• Amendments can only be removed by changing the US Constitution
  E.g. Right to bear arms, freedom of speech

Question 26

How the US protects rights: International conventions and treaties

Answer 26

• US protects a range of basic human rights by being a signatory to international human rights documents

Question 27

Possible reforms to the protection of rights in Australia

Answer 27

• Introducing a national charter or bill of rights

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

Question 28

Arguments in favour of adopting a charter or bill of rights

Answer 28

• Adoption would strengthen the protection of rights in Australia by clearly stating the basic rights of all citizens
• Adoption would make governments in Australia more accountable for the improvement of rights legislation and the provision of services to uphold the rights.
• Adoption would improve Australia’s international image.

Question 29

Arguments against adopting a charter or bill of rights:

Answer 29

• Australia’s basic rights are already adequately protected by hundreds of Acts of Parliament at both state and Commonwealth levels.
• Individuals who feel their rights are not protected by the law can try to influence the government to introduce a change in the law.
• Australia has already adopted and ratified many major international treaties and optional protocols.