U2 AOS3 - Common Law and Human Rights

Question 1

Establishing new human rights

Answer 1

• When resolving cases that involve an alleged breach of human rights, or possibly other kinds of disputes, judges may establish precedent that protects human rights

Question 2

Examples of common law rights

Answer 2

• The right to silence
• The right to a fair trial
• The right to legal representation
• The right of transgender people to marry

Question 3

Dietrich v The Queen 1992

Answer 3

• The central pillar of our justice system is the right to a fair trial
• As a result, if an accused is unable to obtain legal representation, the judge should then use their powers to adjourn or stay the case
• This should be applied in cases with serious crimes
• This is not a blanket right and is applied only under the judges discretion. However, the case should only be continued in exceptional circumstances
• The judges did not recognise the right of an accused to be provided with council at public expense

Question 4

Codification of the common law precedent established in Dietrich v The Queen 1992

Answer 4

• The Victorian parliament passed the Criminal Procedure Act 2009 (Vic) which allows a court to stay a proceeding involving a serious criminal offence to allow the accused an opportunity to obtain legal representation
• If the accused cannot afford legal representation, the court may order Victorian legal aid to provide representation if it is satisfied that a fair trial cannot occur

Question 5

Upholding human rights in statutes

Answer 5

• As well as creating rights, the courts can also recognise, uphold and strengthen the human rights protected under statute law, including the Victorian Charter

Question 6

Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children 2016

Answer 6

• In November of 2016, a group of approximately 40 teenage offenders were transferred to the Victorian, maximum-security Barwon Prison. This transfer occurred after a group of youth offenders held at the Melbourne Youth Justice Centre damaged sections of the facility during riots that took place over an eighteen month period
• In December of 2016, the Supreme Court of Victoria ruled that the Victorian government’s decision to detain children who had committed serious offences at Barwon Prison was unlawful as it breached the children’s human rights

Question 7

What breaches of human rights did these children face?

Answer 7

• Solitary confinement for 23 hours a day
• Handcuffing outside of cells
• Assaults from guards
• Capsicum spray in closed environments
• Rehabilitation and education services stalled

Question 8

Which rights under the Charter did this impact?

Answer 8

• The right to humane treatment when being detained
• The protection of the best interests of children

Question 9

Strengths of common law in protecting rights

Answer 9

• Superior courts can set precedent
• It holds the government accountable
• It can draw attention to cases
• Courts are not a political institution and are therefore not biased towards being re-elected like politicians

Question 10

Weaknesses of common law in protecting rights

Answer 10

• You need a case
• Precedent can be abrogated by parliament
• It is time consuming and costly to take a case to court