unit 4: Human Rights Law Flashcards
Define Human Rights
Human Rights are universal principles that apply to everyone because countries have agreed to protect them. They include basic entitlement, either moral or legal, that leads to a good human life.
Magna Carta
The Magna Carta was a royal charter of rights and peace treaty created in 1215. It established the key principle of “the rule of law,” which proposed that everyone must obey this law regardless of their wealth or status. Everyone is equal in the eyes of the law.
Universal Declaration of Human Rights (UDHR)
Developed by the UN General Assembly on 10 December 1948 regarding the horrors of WW2, sets a common standard of achievements for all peoples and all nations. Over 500 languages universally protect it.
Articles outlined by the UDHR
- “You have the freedom of opinion and expression” which allows you to express your personal opinions to the public.
- “You have the right to be fair public hearing” This means that trials are opened to the public to see justice being served, and they have random juries, unbiased judges
- “You have the right to freedom of movement” which allows you to move freely around in your own space between countries.
Refugees vs Asylum Seekers
A refugee is someone who has fled their country as a result of a well-found fear of persecution based on certain factors e.g. race or nationality and their refugee status has been accepted whereas an asylum seeker is someone whose status has not been accepted and is still pending.
Barrier faced by asylum seekers in securing human rights
They don’t have citizenship and therefore don’t have the fundamental human rights that apply to the rest of the country eg. They’re forced to live in detention centres in terrible conditions and they don’t have any civil rights. All aspects of their life e.g. marriage and travel are governed by the commonwealth and government.
Compare International declaration vs International treaty
An international declaration is a document outlining a set of standards to which nations voluntarily agree but are not legally bound to uphold or implement e.g. Universal Declaration of Human Rights whereas an international treaty is an agreement between 2 nations or international organizations that is bound by international law and if signed, expresses the intention of a nation to uphold the treaty but is only legally binding if ratified (domestic legislation passed).
Judicial organ of the United Nations
International Court of Justice: It’s role is to settle disputes between states and nations and to ensure that nations are upholding the rights outlined by the UDHR.
composed of 15 judges elected every 9 years by the UN General Assembly and the Security Council.
Limitation of ICJ
-only states can bring disputes to the court if concerned with jurisdiction w HC. therefore, International organizations, other authorities and private individuals are not entitled to institute proceedings.
-can’t force countries to go and both countries must agree to attend and have to agree to abide by the decision [voluntary process]
Express Rights
explicitly stated in the wording of the Australian Constitution
ONLY changed or removed by a referendum.
Referendum
requires a proposal to be approved by the Australian people in a public vote by a double majority.
Explain the requirement for a double majority.
The requirement for a double majority in a referendum comes from S.128 in the constitution and it requires over 50% of voters to vote “yes” and at least 4 out of the 6 states to have voted over 50% of the votes for yes. The 2 territories- ACT and NT are not included as their territories). If requirements are not achieved the double majority doesn’t pass.
5 express rights
s. 51-> One will receive “just terms” when property is acquired by the commonwealth govt. Fair and reasonable compensation for any land the govt compulsorily acquires
s. 80-> Those tried with an indictable Commonwealth offence have the right to a trial by jury.
s. 92-> Free interstate trade and commerce. The movement of people, goods and communications across State borders shall be free.
s.116-> Freedom of religion. Cannot declare a national religion nor prohibit a religion
s.117-> Not to be discriminated against based on the state in which you live.
Explain the difference between an express right and an implied right
differences= in how created/ how to change them
Express rights are explicitly stated in the wording of the Australian constitution and can only be changed or removed by a referendum. [provide eg. sec. 80 what outline]
In contrast, Implied rights are not explicitly stated in the wording of the Australian Constitution, but are considered to exist by the High Court. Such rights stem from the HC’s interpretation of the expressed words within the constitution and can only be expanded or limited by the HC in later cases. [example]
example of implied right
The right to freedom of political communication confirmed by many HC cases and also has been made clear that rights exist at all times, not just before an election
