Rights

Question 1

What are human rights

Answer 1

No universal/ legalistic def
Basic moral/ legal entitlements that exist for all human beings irrespective of any personal qualities/ characteristics
Fundamental prerequisites to lead a minimally good life beyond mere survival
Mandatory

Question 2

International human rights law

Answer 2

Establishes principles and guidelines about how Aus should treat its citizens but generally does not govern the behaviour and conduct of Aus citizens (responsibility of Aus domestic law)

Question 3

International declarations

Answer 3

Non binding agreement that sets out aspirations or intentions of countries (or international organizations) who are party to it

Question 4

Universal declaration of human rights

Answer 4

Adopted by all 192 members of UN
Has been translated into 337 languages-> global significance
Inspired the creation of more than 80 international treaties, declarations and agreements
(Convention on the Elimination of All Forms of Discrimination Against Women (1979) )

Question 5

International treaties

Answer 5

Legally binding agreements between countries (or international organizations) in which they undertake to follow the obligations set out in the agreement and implement them in domestic law

Question 6

How are discrimination rights protected federally and in Vic

Answer 6

S12 Racial Discrimination Act 1975 (Cth)= unlawful to refuse a person residential accomodation on basis of their race, nationality or ethnicity
S16 Equality Opportunity Act 2010 (VIC)= unlawful for an employer to discriminate against a person based on gender
HOWEVER
statutes may also establish exceptions to the general principles against discrimination

Question 7

How does the VIC Charter apply

Answer 7

Required MPs explicitly articulate whether new leg uphold or restricts the rights in the Charter through Statements of Compatibility
(MPs are discouraged from introducing laws that breach human rights due to political backlash) ( complex issues regarding human rights are debated and resolved publicly by democratically elected law makers)
The charter imposes obligations on public authorities (VIC police, local councils dept of edu) to act compatibility with HR and give proper consideration to human rights when making decisions
Courts and tribunals must interpret all vic laws in a way in a way that upholds the HR outlined in the charter as far as this is possible
The Supreme Court has the power to declare that a law or provision is inconsistent with HR but does not have the power to strike it down

Question 8

Restrictions of the charter

Answer 8

20 rights are not absolute or unrestricted- includes a general limitations clause which allows public authorities (including VIC plmt and govt) to restrict HR in vic, it has no impact on new laws developed by cth plmt. As cth laws usually apply to all Aus, they may infringe upon the rights of vic
(Aus doesn’t have national charter)
The charter does not establish a right for victorians to bring a case against against the vic plmt for creating laws that breach the charter
Laws created prior to 2006 did not require a statement of compatibility and the human rights implications of many laws may not have been debated or considered

Question 9

strengths of statute law (rights)

Answer 9

allows avenue for parties to seek remedies- discourages breaches- upholds social cohesion
explicit and robust protection of certain rights (cth and states statutes relevant to discrim. that cover a broad range of protected characteristics)
Plmt can make statute to protect HR when the need arises- allows rights protection to evolve as community standard changes

Question 10

Weaknesses of statute law (rights)

Answer 10

evidence may be difficult to provide- defendant may have an excuse that could be considered reasonable is defence of their actions/decisions
there are exemptions to laws
damages cannot return the plaintiff to the emotional position before the breach
in a diverse and multicultural society, interpretation of certain rights may differ
Plmt can pass new laws or amend laws that remove HR previously protected in leg - not enshrined in constitution

Question 11

Right to legal rep - statute

Answer 11

Both statute and common law
S25 VCHRR- ‘rights in criminal proceedings’- protects an accused persons right to:
Have adequate time and facilities to communicate w a lawyer
Be tried in person and defend themselves personally or through a lawyer
To be told of the right to obtain legal aid if they have no lawyer

Question 12

Right to legal rep- common law e.g

Answer 12

Dietrich v The Queen:
Applied w VLA but needed to plead guilty for rep
Went to trial w/o rep (complex trial, 40 days) -> imprisonment-> appeal w HC
To actualise right to fair trial, right to legal rep needed= judge can adjourn case until accused obtains legal rep (serious criminal charge)
NOT at public’s expense

Question 13

Strengthening of rights e.g

Answer 13

Certain Children v Min. For Families and children:
After the govt decision to transfer children to Barwon prison was deemed unlawful, the SC strengthened the rights of the VCHRR including the right to humane treatment whilst detained & protection of best interests of children

Question 14

Strengths of common law in protecting HR

Answer 14

Courts indep of plmt and can establish precedent free from political pressures
Courts can make decisions to establish HR in areas where plmt has not established HR
Courts can infer HR without needing to consider how they might need to be limited
Courts can highlight to plmt gaps in the law that protect HR which may encourage plmt to change the law
Historically, courts have been able to protect HR and plmt has not overly interfered w common law

Question 15

Weaknesses of common law in protecting HR

Answer 15

Common laws aren’t always easy to define/ identify (as opposed to statutory rights)
Courts must wait for a case to come before them to be able to declare the existence of HR
plmt as supreme law making body of Aus can abrogate common laws
Often courts are reluctant to recognise certain HR leaving it up to plmt to protect those rights
Judges are limited in applying the law to the case before them and cannot extend their decision to human rights or issues that are not in dispute in the case

Question 16

what is the Aus Consititution

Answer 16

Founding document that outlines how Aus is to be governed.
E.G Cons establishes Cth plmt and outlines how its structured and its law making powers

Question 17

what is a referendum/ what is required for it to be successful

Answer 17

method used to change the wording of the constitution. A compulsory national vote in which everyone on the electoral role votes ‘yes’ or ‘no’
a double majority- national majority of all voters in Aus and a majority of voters in 4/6 states

Question 18

What are express rights?

Answer 18

Aus Cons. protects 5 express rights
explicitly stated (entrenched) in wording of cons and can olny be altered through successful referendum

Question 19

Section 51 (xxxi) CTH ONLY

Answer 19

right to receive just terms when property is acquired by commonwealth
STRENGTHS:
Cth cannot pass a law taking a persons or company’s land or possession unless fair and reasonable compensation is provided
WEAKNESSES
doesn’t prevent Cth from acquiring property from Aus citizens
no specification or statement on what constitutes ‘just terms’, potentially leading to some unsatisfactory outcomes for landowners
this section does not apply to states

Question 20

Section 80 CTH ONLY

Answer 20

right to trial by jury for Cth indictable offences
STRENGTHS:
this applies to individuals who have been charged w offences such as terrorism, people smuggling, drug importation, fraud
Cth cannot legislate to have indictable offences tried by a judge alone which enhances a fair trial
WEAKNESSES:
many crim offences are created by state laws (e.g Crimes Act 1958 (vic)) and this section doesn’t apply to the states

Question 21

Section 92 CTH AND STATES

Answer 21

right to free interstate trade and commerce
STRENGTHS:
both Cth and state plmts cannot pass laws that restrict free movement of goods or individuals b/w states (e.g a Vic law imposing a tax on furniture being made in NSW would be invalid)
WEAKNESSES:
High court stated that laws that restrcit interstate mvmt of ppl w/o ‘discrimination’ are acceptable
A law that has some other legitimate purpose but has the side effect of restricting mvmt b/w states might be valid

Question 22

Section 116 CTH ONLY

Answer 22

right to freedom of religion
STRENGTHS:
Cth plmt cannot pass a law that imposes or bans a religion
A person cannot be denied a position of in the Cth Plmt or related positons bc of religious belief
WEAKNESSES:
doesn’t apply to states
a law that has the effect of forcing a person to do something their religion prohibits does not necessarily breach s116 9e.g laws conscripting individuals to fight in a law

Question 23

Section 117 CTH AND STATES

Answer 23

the right to not be discriminated against based on your state of residence
STRENGTHS:
The Cth plmt cannot pass a law that treats Victorians less favourably than NSW citizens
States cannot pass laws that impose a burden on a person bc they live in a different state
WEAKNESSES:
some laws legislate upon residents of different states in a restricitve manner may be acceptable (e.g a Vic law that prevents residents of NSW from voting in Vic elections)
relatively few high court cases have involved the interpretation of s117 and as a result it remains unclear which laws would or would not violate s117

Question 24

enforceability of express rights

Answer 24

All rights protected by the constitution both express and implied are fully enforceable by the HC
if a party believes legislation created by plmt infringes a constitutionally protected right, they can challenge the validity of the law in the HC, however the indiv bringing claim must have standing to sue (must be affected or have special interest in law)
HC can declare law unconstitutional and invalid
plmts options=
amend legislation to remove unconstitutional sections
change constitution by holding referendum

Question 25

Implied rights

Answer 25

Not explicitly stated in wording of constitution but are considered to exist through interpretation of the high court
Fully enforceable- a person or organisation that is negatively affected by legislation breaching the implied right can challenge the laws validity in HC so long as they have standing to do so

Question 26

Sections 7 and 25

Answer 26

Right to freedom of political communication empowers Australians to freely discuss and debate political issues, subject to certain restrictions
7. The Senate
The senate shall be composed of senators for each state, directly by the people of the state, voting, until the parliament otherwise provides as one electorate
24. Constitution of the House of Representatives
The HOR shall be composed of members directly chosen by the people of the Cth, and the number of members shall be, as nearly as practicable, twice the number of senators

Question 27

Implied rights strengths and weaknesses

Answer 27

STRENGTHS:
HC can establish new rights beyond express rights- expansive approach to creating rights
Difficult to remove the rights via referendum bc may be interpreted on basis of numerous sections
WEAKNESSES
HC cannot interpret words of constitution and declare new rights or breach until a case comes before them
HC can develop common law to place restrictions on implied rights of FOPC

Question 28

Right to freedom of religion

Answer 28

Article 18 UDHR-
Everyone has the right to freedom of thought conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance
Article 18- 1. (Above)
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by laws and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others
4. The states parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions

International Covenant on Civil and Political Rights (1966) (‘ICCPR’) - one of 7 major international human rights treaties adopted by Aus and reflected in domestic law-
Australian human rights commission Act 1986 (Cth)
Racial and Religious Tolerance Act 2001 (VIC)
Equal opportunity Act 2010 (vic)
Section 14 of VCHRR protects Victorians freedom of thought, conscience, religion and belief (stt of compatibility/ act and make decisions compatible w HR)
Section 116 of Constitution provides Aus w a limited right to freedom of religion. Cth Plmt cannot pass a law that:
Establishes an official, national religion
Imposes any religious observance
Prohibits the free exercise of any religion. However this can be limited if the practicing of a religion breaches Aus law or threatens national security
Requires a religious test as a requirement for holding any Cth office