Unit 2 AOS 4 human rights

Question 1

define human Rights

Answer 1

is a basic freedom or standards that promote and uphold the dignity of all people, and are guaranteed by a moral sense of duty or by law.

Question 2

define an international treaty

Answer 2

is an agreement between two or more countries that give rise to legal rights and obligations and is governed by international law.

Question 3

what is ratification

Answer 3

when a country passes statue law to adopt the rights outlined in an international treaty.

Question 4

does the international declaration create legal obligations

Answer 4

No, it is non-binding; rather outlines ‘aspirations’ of the parties which agree.

Question 5

examples of rights in the universal declaration of human rights

Answer 5

no one should be subject to slavery or torture

everyone has the right to a fair and public hearing

everyone is pressured innocent until proven guilty

Question 6

what’s the purpose of the international treaty declarations of the rights of indigenous peoples (2007)

Answer 6

to establish a framework of minimum standards for indigenous people around the world. although Australia has expressed their agreement of such topic, they have not yet formally adopted the declaration by passing laws.

Question 7

briefly how does statute law uphold human rights

Answer 7

commonwealth, state and territory parliaments pass acts to protecting rights that uphold international treaties.

Question 8

briefly how does the Australian constitution uphold human rights

Answer 8

protects a limited number of rights of Australians such as express rights

Question 9

define statue law

Answer 9

a law made by parliament; also known as acts of parliament or legislation

Question 10

evaluate statue law in protecting human rights

Answer 10

adv - parliament can create new legislation and amend existing statutes to incorporate further human rights, particularly as the views and values of the community change.
dis - as the supreme law making body, parliament can amend statutes to restrict or cancel existing human rights.

adv - parliament has the ability to pass laws quickly if there is a need to promptly protect additional human rights.
dis - the human rights protected in statute law are not as well protected as human rights contained in a constitution, as constitutional rights can only be altered or removed with public approval.

adv - statues are detailed and precise, and protect human rights specifically, rather than being implied.
dis - parliaments can include exemptions, limitations or restrictions in statutes, so protected human rights are not always absolute.

Question 11

define common law

Answer 11

law made by judges through decisions made in cases; also known as case law or judge-made law.

Question 12

evaluate common law in protecting human rights

Answer 12

adv - courts are independent of parliament and can establish precedent free from political pressure.
dis - common laws are often not easy to identify or define

adv - courts can make decisions to establish human rights in areas where parliament has not established human rights
dis - Courts must wait for a case to appear before them to be able to declare the existence of human rights.

adv - historically, courts have been able to protect human rights and parliament has not overly interfere with common law rights by abrogating them.
dis - judges are limited in applying the law to the case that is before them, and cannot extend their decision to human rights issues that are not in dispute in the case.

Question 13

explain what is ment when high court can declare acts ultra vires (invalid)

Answer 13

high court, as guardian of the constitution, can declare parliament legislations invalid if it consider the act to have been made outside the commonwealths power.

Question 14

true or false

parliament can override any ruling made by the high court regarding the constitution

Answer 14

false

Question 15

define the constitution

Answer 15

A constitution is a set of rules that guides how a country, state, or other political organization works

Question 16

define express rights

Answer 16

express rights are rights that are stated in the Australian constitution. express tights are entrenched, meaning they can only be change by referendum

Question 17

example of express rights

Answer 17

• received ‘just terms’ when property is acquired by the commonwealth
  (the common wealth must pay fair and reasonable compensation for properties compulsorily acquired.

Question 18

define implied rights

Answer 18

rights that are not explicitly stated in the Australian constitution but are considered to exist through interpretation by the high court.

Question 19

what’s an example of an implied right

Answer 19

freedom of political communication
as the constitution establishes that MP are ‘to be chosen by the people’ indirectly implying freedom and electoral processes.

Question 20

the two options parliament have when high court declares a legislation invalid

Answer 20

1. amend legislation to remove the unconditional provisions
2. hold a referendum which is the only way the wording can change.

Question 21

evaluate the Australian constitution protecting human rights

Answer 21

adv - express rights can only be removed or amended through the referendum process. Thus, cannot be abolished by parliament without the support of Australians
dis - changing express rights through the referendum process is difficult for many reasons (successful referendum requires a high majority of voters support) This means human rights may lag behind changes in community attitudes.

adv - all rights, including human rights, protected by the constitution are fully enforceable by the high court, and any statue found to breach those rights can be declared invalid.
dis - it is expensive and time consuming to take a case to the high court to challenge a statute that breaches any right contained in the constitution.

adv - the implied rights to freedom of political communication shoes that human rights can be implied or recognised by the hight court even though they may not be expressly written in the constitution.
dis - very few human rights are expressly protected by the constitution. the human rights that are protected, have a limited scoop and act more as a restriction on parliaments when law-making than a positive right.

Question 22

how are the rights of indigenous peoples protected

Answer 22

by statue law and common law, NOT by the constitution.

Question 23

examples of how the constitution used to discriminate against indigenous peoples

Answer 23

they where excluded from the census, where not considered apart of the population. was removed in 1967 through a successful referendum

Question 24

two anti discrimination laws which aim to protect indigenous Australians

Answer 24

• the native title act 1993
  -Heritage Protection Act 1984

Question 25

how does the victorian human rights charter protect indigenous rights

Answer 25

section 19 protects cultural rights for First Nations people outling their right to practise their culture and maintain language and kinship

Question 26

define the possible reform for First Nations people self determination

Answer 26

the right to make decisions about their own lives and to self-govern in matter of their own affairs, recognised by the UNDRIP

Question 27

2 ways self determination can be achieved

Answer 27

-returning land
-restoring the ability for indigenous peoples to control their own community services.

Question 28

define the possible reform for First Nations people constitutional recognition

Answer 28

to recognise and acknowledge First Nations peoples as traditional owners and custodians of the land in the Australian constitution.
-only achieved via referendum

Question 29

explain the possible reform for First Nations people of addressing disadvantages in the criminal justice system.

Answer 29

to address the increased deaths of indigenous peoples during incarceration, parliament can abolish mandatory minimum sentencing laws for minor offences or increase the age of criminal responsibility from 10-14.

Question 30

summary of the love case

Answer 30

The “Love case” in Australia refers to the 2020 High Court decision that ruled Aboriginal and Torres Strait Islander peoples cannot be classified as “aliens” under immigration laws. This ruling protected two Indigenous men Mr Love and Mr Thoms from deportation, affirming their unique connection to the land and highlighting the legal recognition of Indigenous rights. It underscored the idea that Indigenous Australians have inherent rights that must be respected.

Question 31

the Montgomery case

Answer 31

The case came in response to the federal court ordering Shayne Montgomery – a New Zealand citizen who was evidenced to be culturally adopted as Aboriginal – to be released from Australian immigration detention and deported in November 2021.
- federal court followed the precedent set in the love case that First Nations peoples cannot be considered immigrants and ruled against the Australian government.