SAC 6 - HUMAN RIGHTS Flashcards
Human rights:
Basic freedoms which uphold the dignity of all people and are guaranteed by a moral sense of duty.
People in which dignity is upheld is everyone, regardless of age, gender, race, nationality or other personal attributes.
Purpose of human rights:
For all people to maintain a cohesive society.
UNIVERSAL DECLARATION OF HUMAN RIGHTS: (UDHR)
Created by United Nations in 1948, following the end of WWII.
Considered the basis of international human rights declarations.
Examples of rights included in the UDHR:
None shall be subjected to torture/cruel/inhumane treatment.
Example of rights:
Right to life
Right to equal pay
Right to access of basic necessities
DEVELOPMENT OF HUMAN RIGHTS:
Women not having the right to vote in federal elections (1902).
First Nations people not recognized in the Australian population (until 1967).
Human rights injustices which still need to be addressed:
Improve the human rights of WOMEN, = abuse, violence and discrimination.
International treaty aim:
To protect rights, Australia has become a signatory to international treaties.
International treaty:
Agreement between two or more countries, that gives rise to legal rights and obligations, governed by international law.
Declaration:
International agreement, non-binding agreement that sets out the intentions of the countries who are parties to the declaration.
Rights in Universal Declaration of Human Rights:
- Born free and equal in dignity and rights.
- Entitled to the same rights and freedom without discrimination.
- Everyone has the right to life.
How are human rights protected in Australia?
Protection of these rights for citizens occurs through a number of ways:
- Statute law and the Victorian Charter of Human Rights
- Common Law
- The Australian Constitution
Australian Constitution:
Establishes how Australia operates.
- Outlines how Australia is to be governed
- Only changed through referendum
- Protects the five express rights, implied rights and structural protection of rights
Statute law:
Law passed through parliamentary process and granted Royal Assent.
- Protected by both Commonwealth and State/Territory legislation.
The Human Rights Charter outlines 20 basic human rights, including:
- To life
- Protection from torture and cruel, inhumane treatment
- Freedom of movement (moving houses, countries)
Rights of adults and children in criminal proceedings:
- Ability to access legal aid
- Free access to an interpreter
- Right to silence
Victorian Charter of Human Rights and Responsibilities:
- Protect human rights in Victoria.
- Requires the Victorian Parliament to review bills and determine their compatibility with the rights set out in the Charter.
Rights protected in the [VCHRR]:
- Right to life
- Right to protection
- Freedom of movement
Strengths in Victorian Charter of Human Rights and Responsibilities:
- Public debate + political risk
- Obligation on public authority
- Extensive protection of rights
Weaknesses in Victorian Charter of Human Rights and Responsibilities:
- Limited jurisdictional scope
- Inability to prevent rights-infringing laws
- Lack of direct general recourse
Common law rights:
rights protected by common law that has been established through decisions made by judged in state and federal courts.
Example of common law rights:
- Right to silence
- Right to fair trial
- Right to legal representation
Recognizing and upholding human rights contained in statutes:
- Right to equality before law
- Right to effective protection against discrimination
- Right to humane treatment when deprived of liberty
Codification of court decisions:
(precedents) which uphold human rights can be codified by parliament.
Abrogation:
parliament may be able to abrogate human rights that have been established in common law.
Common law:
created by judges when resolving a dispute in circumstances where there is no applicable law or the existing law is unclear.
How does common law protect human rights?
- Judges interpret statutes to clarify legislation to protect human rights
- Judges establish precedents to guide future human rights cases
Strengths of protecting human rights through common law:
- independent, establish precedent-free from political pressure
- make decisions to establish human rights
- highlight parliament gaps which protect human rights
Weaknesses of protecting human rights through common law:
- Not always easy to identify
- Parliament can abrogate common law rights
- must wait for a case to come before to be able to declare existence of human rights
Precedent:
legal principle established by a court in a previous case that is used as a guide or authority in cases with similar facts
Statutory interpretation:
process where courts give meaning to the words in legislation when applying the legislation to a case.
The constitution outlines:
- How we are governed
- The structure and law-making powers of the Commonwealth Parliament
- Basic rights for Australian Citizens
Express rights:
- Right to free interstate trade + commerce
- Right to not be discriminated against by Commonwealth based on state of residence
- Right to receive ‘just terms’ when property is acquired by the Commonwealth
- Right to trial by jury for indictable Commonwealth offences
- Right to a limited freedom of religion
Strengths of express rights:
Cannot be changed without a referendum
Unchanged since federation
Impose limits on Parliaments law-making
Weakness of express rights:
Limited in scope
Referendum is time consuming
Only 5 rights
Implied rights:
A right that is not explicitly stated in the constitution but is considered to exist by the High Court’s interpretation of the constitution’s meaning.
How does the Constitution protect human rights?
High Court can imply the existence of human rights
Implied right to political communication:
Legal principle in Australian constitutional law that protects he ability to engage in communication on political matters.
Strengths of implied rights:
High Court has right to find implied rights as reflected in the right to political communication
Fully enforceable by the High Court
Weakness of implied rights:
Cannot interpret the meaning of Constitution and declare infringements
No mechanism preventing parliament from passing laws
Effectiveness of the Constitution - strengths:
Separation of powers protects rights as judges are independent of the legislative
Representative government protects human rights as laws as society changes
Representative government = regular elections
Effectiveness of the Constitution - weakness:
No mechanism preventing parliament from passing laws which are valid
Members of executive branch are members of legislative
Reliance on representative government to protect human rights is not effective
Freedom of political communication:
The constitution does not explicitly state that Australians have the right to freely discuss and debate political issues, referred to as the freedom of political communication.
