rights Flashcards
Freedom from discrimination
International Law:
ICERD
- defines racism and equality, freedom from discrimination an equal human right and fundamental freedom
- condemns racial discrimination and encourages policy that eliminates it
CEDAW
- eliminate discrimination against women in political and public life
- equal rights in education
- eliminate discrimination in employment
ICCPR
- contains rights of equality and non-discrimination
Aus legislation:
- racial discrimination act
- sex discrimination act
- AHRC act
- disability discrimination act
Right to democratic representation
International law:
ICCPR
- right to vote: every citizen has opportunity to
a) take part directly or through chose representatives
b) vote and be elected
c) to have access to public service
Australian Law:
The electoral act- all adults right to vote
S41 constitution- right to vote
High court case: Roach v Electoral commissioner:
- couldn’t vote prison 3+ years
- gov argued structural protection
- held amendments inconsistent with rep democracy legitimate for some prisoners to lose right for disrespecting the community
right to trial by jury
International law:
ICCPR
- everyone entitled to a fair and public hearing by competent independent and impartial tribunal
Magna Carta:
- free man only imprisoned by the legal judgement of his peers or by the law of the land
Aus law
S80 constitution
- trial on indictment of any offence against the commonwealth shall be by jury
freedom of religion
International law:
ICCPR
- everyone has the right to freedom of religion only laws protecting public order, health or rights and freedoms of others can limit this
Aus law: s116 constitution
- prohibits commonwealth from establishing religion, imposing religious observance, prohibiting excersise of free religion, requiring religious test as a qualification for any office under commonwealth
Antidiscrimination act prohibits religious discrimination
Common law
scientology case established the criteria of religion:
- belief in a supernatural being, thing or principle
- observance of cannons of conduct to give effect to belief
- determined scientology is religious institution
IMPLIED right to legal representation
International law: UDHR
- everyone charged with a penal offence right to innocence until proven guilty with all guarantees necessary for defense
High Court case
Dietrich
- convicted after 40-day trial unrepresented
- found no absolute right to legal representation but accused could not get fair trial witho9ut legal counsel
right to free speech
International law:
ICCPR
- right to hold opinions without interference
- freedom to seek receive and impart information
subject to restrictions as nesessary
- for the rights/ reputations of others
- for protection of national security/ public order, public health or morals
Aus law: freedom of speech not explicitly protected
- RDA limits free speech
- s7 +24 require people choose gov protecting stream of communication between people and gov
High Court case: Lane v ABC
- freedom of speech ‘common law freedom’
-‘ embraces freedom of communication between the people concerning government and political matters’
right to protest and freedom of assembly
International law: ICCPR
- right to peaceful assembly with limitations
- in conformity with the law
necessary for the protection of national security, public safety, public order, public health or morals, protection of the rights and freedoms of others
- freedom of association
UDHR
- limitations for respect of rights and freedoms of others meeting moral requirements, public order and general welfare
Aus law:
- no express right
- occur freely but can be limited by permits
- Limitations: responsibly, laws which protect privacy, convinience, reputations ad safety of citizens enabling them to live peacefully (defamation + inciting racial hatred)
BLM protest case
S51 (xxxi) constitution
Right to just compensation of property gives people the right to be fairly compensated when the commonwealth forcibly acquires their property
Implied right to political speech
Aus capital television v Commonwealth/ political advertising case:
High court struck down NSW restricting political advertising during elections
- held act breached implied right to political speech (s 7 +24)
- decision confirms commonwealth impliedly protect freedom of speech relating to politics/ public affairs
s92 constitution
right to free trade between the states:
allows for freedom of trade between states. High court interpreted it to allow for freedom of movement between states for people.
double jeopardy (implied)
International law:
ICCPR
- once a judge/ jury find a person not guilty they are acquitted and can never be tried again for that offence
Domestic law: Criminal Code Act
- double jeopardy law (s16) but exception applied where there is fresh and compelling evidence
s80 constitution
right to trial by jury:
- trials on indictable offences
- jury must be unanimous
- for any commonwealth indictable offence
Right to silence (implied)
- right of a suspect to answer questions before trial
- right of an accused to not give evidence (based on desire to protect personal freedom and dignity)
Pyneboard: High court held privilege against self-incrimination revoked where a statutory body (Trade practices commission) was authorized to compel individuals to produce information which may incriminate them
civil and political rights protected in Aus
Constitution: right to vote + rep democracy (s 7 +24) and trial by jury (s80)
Human rights act: right to life, freedom of movement and freedom of expression
s 51 (xxix)
External affairs power
enables the federal parliament to enact laws which are a faithful implementation of some international treaty or convention to which Australia is a party.
(Teoh: govt wanted to deport Teoh. T argued was in conflict with Convention of rights of child, which at time wasn’t incorporated into Aust law, BUT showed that treaties still have some indirect effect even when they are not implemented by the Commonwealth Parliament, in the exercise of its external affairs powers.)
