S1 Intro to Human Rights

Question 1

what are some forms of Human Rights?

Answer 1

• Legislation, Racial Discrimination Act 1975 (cth)
• Common Law, Torts
• Constitutional Protection, Commonwealth Constitution 1901
• treaties and convention at the international level

Question 2

Categories of Human Rights?

Answer 2

1th generation - civil and political rights
eg; fair trial, free from torture

2nd generation - economic, social and cultural rights
eg; housing, health, education, food, water

3rd generation - communal rights
such as right to healthy and safe environment

Question 3

the difference between 1th and 2nd generation?

Answer 3

• ICCPR (1th) rights are presumed to be effective immediately
• ICESCR (2nd) rights are to be ‘progressively realised’ within ‘available resources’

Question 4

is the Economic, social and Cultural Rights (ESCR) justiciable?

Answer 4

some says NO, due to these rights being ‘positive rights’ which requires the states to do something to enforce them.
Enforcement of ECSR involves ‘policy’

Question 5

forms of international law?

Answer 5

1 Treaties and convention

2 Customary International Law

Question 6

bi-laternal treaty?

Answer 6

between two parties

Question 7

multilateral treaty?

Answer 7

between many parties

eg; ICCPR and ICESCR

Question 8

is UDHR a treaty?

Answer 8

No, but have many affects on customary law

Question 9

John Howard’s quote in regards to state sovereignty?

Answer 9

“we will decide who comes to this country and the circumstances in which they come”.

Question 10

what is the role of accountability in the bill of rights?

Answer 10

While states have their sovereignty, the UN shifted towards holding countries accountable through the bill of rights.

Question 11

How are treaties made?

Answer 11

1 Negotiation and Drafting
2 Signed by the official representative of a state
3 Ratification (executive act by Governor- General on advice of federal government )

Question 12

ratification?

Answer 12

After a state has ratified a treaty, it is bound to follow the treaty under international law
And Failure to comply will have consequences under international law - (states usually make sure that their domestic law complies with the treaty before ratifying it)

Question 13

what type of legal system Australia has?

Answer 13

Dualis

Question 14

what does a Dualist system means ?

Answer 14

ratification of a treaty has no direct affect on domestic law.

• rights in the treaty cannot be raised as individual rights in a domestic court
• state is not directly accountable to its citizens for violations of treaty obligations

Question 15

How does a Treaty come to life under Australian Constitutional system?

Answer 15

Executive enters treaties

Parliament decides if treaties become part of domestic law

Question 16

Type of systems of government ?

Answer 16

• Dualist - ratification of a treaty has no direct affect on domestic law unless transformed into policies by parliament
• Monist - treaties automatically becomes part of the law

Question 17

which countries have dualist system?

Answer 17

Countries with Common Law Foundation such as UK, Canada and New Zealand

Question 18

which countries have monist system?

Answer 18

Civil law countries - European countries have monist system

Question 19

list of case illustrate Dualist System in Australia;

Answer 19

• Koowarta v Bjelke Peterson 1982
• Al- Kateb v Godwin 2004
• Tonnen v Australia 1994

Question 20

what was the High court’s decision in Koowarta v Bjelke-Petersen?

Answer 20

The QLD law was invalid cause it has to comply with the CTH law.
QLD argues that property is state matter and not CTH.
However, CTH did have power due to entering into the International Convention on the Elimination of all forms of Racial Discrimination (ICERD)

Question 21

Koowarta v Bjelke-Petersen 1982 - about?

Answer 21

government refused to grant land interest to Aboriginals

Question 22

Al-Kateb v Godwin - about?

Answer 22

Whether Australia has the right to detain Refugees indefinitely

Question 23

indefinitely ?

Answer 23

for an unlimited or unspecified period of time

Question 24

court decision on Al-Kateb v Godwin 2004?

Answer 24

Government has power to detain refugees under the ‘aliens’ power in constitution
Although, this is unlawful under international law (eg; ART 9(1) of ICCPR - prohibition on Arbitrary detention).
However, international law cannot rule over domestic law due to state sovereignty

Question 25

Toonen v Australia 1994 - about?

Answer 25

Tasmanian law prohibited Gay Sex
Toonen argues that this law breaches his right to privacy and freedom from discrimination on ground of Sex (protected by ICCPR)

Question 26

Court decision on Toonen v Australia 1994?

Answer 26

HRC asked Australia to repeal the act as it goes against international law.
Tasmania refused to change the law because international committee can’t order state to change its law.
Cth enacted the Human Rights (Sexual Conduct) Act 1994 (cth), which overrode v invalidated the Tasmanian law

Question 27

what is the relationship between human rights and democracy?

Answer 27

Democracy gives right to the people to have their say in the way the country should run and govern. This right is practices through the representatives of people in the parliament.
Human rights protects the rights of all people, including the minorities whose voice is not heard in a democracy country.

Question 28

Concept of constitutionalism?

Answer 28

limits on governmental power
Protection of minorities & 
vulnerable/disadvantaged groups
This is a major aspect of human 
rights
Protection of people who may be 
unable to protect their own 
interests e.g. Refugees,

Question 29

Arbitrary (Government)?

Answer 29

based on random choice instead of any reason behind

Question 30

Can Parliament be trusted as the ultimate protector of rights?

Answer 30

Parliament members are chosen by the people for a maximum term of 4 years.
However, Australian Parliament seems to not only fail to implement its international obligations, but also to pass laws positively violating human rights e.g. treatment of refugees, NT Intervention

Therefore, international laws are necessary in keeping Australia in check and balance

Question 31

Basis of human rights;

Answer 31

• HRs are ‘fundamental’- they have priority in
relation to other interests;
• HRs are ‘universal’- they apply to all people at
all times;
• HRs are ‘inherent’- they cannot be taken or
given away (inalienable)

Question 32

Human dignity is the most widely accepted

justification for human rights - means;

Answer 32

• The essential worth of each human being
• This is reflected in the Preamble to the UDHR
which commences:
‘Whereas recognition of the inherent dignity
and of the equal and inalienable rights of all
members of the human family is the
foundation of freedom, justice and peace in
the world …’

Question 33

when did UN get established?

Answer 33

in 1945 in direct response to the atrocities of WWII

Question 34

why did UN got established?

Answer 34

• To perevent WWIII

- to hold states accountable for protecting the rights of everyone and especially the rights of the minority

Question 35

When did UNDR got adopted?

Answer 35

adopted by the UN General Assembly on 10 December
1948 (Human Rights Day)
• The UDHR lists 30 substantive rights – both civil and political, & economic,
social & cultural rights

• UDHR was based on the principle of ‘universalism’ and not linked to either capitalist/Western values, or socialist values

Question 36

is UDHR directly binding?

Answer 36

UDHR is not directly legally binding, but may have legal effect as either:
• Statement of customary international
law; or
• Authoritative interpretation of the UN Charter

Question 37

The 2 treaties which followed the UDHR;

Answer 37

1- Civil & political rights eg. Right to life, freedom from
torture, fair trial, etc
2- Social, cultural & economic rights eg. Health, education,
housing, food, water, etc