Legal studies human rights

Human rights 

The basic freedoms and entitlements that exist for all human beings, irrespective of any personal qualities and characteristics.

Examples of human rights

• The right to life

• The right to access clean water, food or shelter

• The right to vote

International declaration 

A non-binding agreement between countries that sets out the aspirations (hopes) of the parties to the agreement.

International treaty 

A legally binding agreement between countries or intergovernmental organisations in which they undertake to follow the obligations set out in the agreement and include them in their own local laws

Universal declaration of human rights

An international document that outlines the basic rights and fundemental freedoms to which all human beings are entitled adopted by the General Assembly of the United Nations in 1948 

Examples of laws passed by Australian Commonwealth parliament with the purpose of ratifying human rights sets out in these treaties

• Convention on the Elimination of All Forms of Racial Discrimination

• Convention on the Elimination of All Forms of Discrimination Against Women

• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment 

Locus standi 

• the right to bring a matter before a court.

• Requires the party to be directly affected by the issues in dispute with a sufficient connection to harm from the action challenged

Ratification 

The formal approval or confirmation of an act or agreement.

Signatory 

Anyone who signs an agreement to show they accept or support it.

royal commission

An independent public inquiry set up by the government to investigate serious issues of national importance and make recommendations for change.

Statue law

Laws made by parliament 

strengths of statute law 

• Parliament can create new or amend existing laws to incorporate human rights in compliance with changing needs of society

• Statutes are detailed and precise and can protect human rights specifically rather then being implied

Limitations of statute law

• As the supreme law making body parliament can amend, restrict or cancel existing statutes at any time.

• Statues to do always enable a person to be awarded damages if their human rights are breached.

Examples of human rights protected by statute law

• The right to freedom from cruel or degrading treatment

• The right to a fair trial

Common law

• Laws made by judges through decisions made in cases

• Either when the court must make a decision on a dispute where no current legislation applies or the court must interpret a statute to apply

• when making their decisions judges may establish precedent that protects human rights

Strengths of common law in protecting human rights

• precedent provides consistency - courts follow decisions made in prior cases with similar facts giving predictability to the law

• Can adapt gradually through court decisions to reflect changing societal values.

   

Limitations of common law in protecting human rights 

• Limited by existing statutes: Common law cannot override clear statutes made by Parliament.

• Court cases are expensive and complex, meaning only those who can afford legal representation can effectively rely on common law protections.

How common law can protect human rights (4)

• Directly

• Ultra vries 

• codification

• abrogation

Directly

• Through precedent - judges create legal principles in their decisions that uphold human rights, enabling future courts to ensure consistent protection of human rights.

• Statutory interpretation - judges should interpret unclear laws in a way that upholds human rights, unless Parliament clearly intends to restrict them.
  *principle of legality - presumes Parliament does not intend to limit rights without clear wording.*

Ultra vries

The courts can declare acts of parl’ invalid when made outside or beyond the parl’s law making power

Codification

Court precedents that establish human rights may be confirmed by Parl’ as Parl’ can pass legislation to reinforces legal principles established by courts through precedent

Abrogation 

Due to parliament being the supreme law making body they can abrogate (cancel) human rights established in common law.

Examples of rights upheld by common law 

• Right to a legal representation

• RIght to Silence

• Right to a Fair trial

• Freedom of movement

The Australian consitution

Legal documents outlining a set of rules and principles to guide how to govern Australia, the structure and creation of law-making powers such as parliament, courts and establishes basic human rights.

Express rights 

RIghts stated in the Australian consitution which are entrenched meaning they can only be changed via a referendum. 

Implied rights 

Rights that are not expressly stated in the Constitution but are considered to exist through interpretation by the high court

Structural rights

Rights implied from the structure of the Constitution that protect democracy and limit abuse of power.

EG.

• Who makes the laws (Parliament)

• Who enforces the laws (Executive)

• Who reviews the laws (Courts)

Strengths of the Australian Consitution in protecting human rights

• Express rights are entrenched and cannot be removed without a referendum ensuring human rights are upheld

• bi-cameral system - the requirement of laws being passed through two houses promotes scrutiny and prevents rushed decision making

Limitaions of the Australian constitution in protecting human rights

• Difficult to change – the double majority requirement in a referendum makes it difficult to update or amend to reflect modern values

• Limited express rights – only 5 express rights are explicitly protected, providing minimal protection for individuals’ freedoms compared to other nations

Examples of human rights protected by the Australian constitution 

• Right to freedom of religion

• Right to trial by jury for Commonwealth indictable offences 

• Right to compensation for property acquired by the Commonwealth

• Right to freedom from discrimination based on state of residence 

• Right to freedom of interstate trade and commerce 

The Victorian Charter of human rights and responsibilities

document that sets out the basic human rights and freedoms of the citizens on a particular state or country, Victoria, ACT and Queensland have passed a charter of human rights

• protects 20 basic rights

• No national charter has been passed.

• Australia is the only western democracy that does not have a national charter of human rights or a bill of rights

Strengths of the Victorian Charter in portecting human rights

• Easier to change or update than the Constitution, allowing it to reflect modern values and evolving social needs.

• When new laws are introduced in Parliament, a Statement of Compatibility must explain whether the law is consistent with human rights - This process ensures that human rights are considered in the development and debate of new legislation.

Limitations of the Victorian Charter of Human Rights and responsibilities

• Not entrenched: Can be changed or removed by Parliament at any time, making rights less secure than constitutional protections.

• Applies only to Victoria: The Charter protects rights at a state level only, meaning protections vary across Australia.

Examples of human rights protected via the Victorian charter

• right to life

• The right to freedom of movement (people who lawfully live in Victoria have the right to leave and return to the state whenever they desire, and choose where they live) 

• The right to protection from torture, cruel, inhuman or degreading treatment. 

Rights related to criminal proceedings 

Charter sets rights of adults and children in criminal proceedings, Victorians are entitled to minimum guarantees once been charged with a criminal offence.

EG. 

• right to be provided with legal aid if the denial of such assistance would lead to an unfair hearing or trial (provided by Victorian Legal Aid)

• right to not be compelled to give evidence against themselves (the right to silence)

• right to have any conviction or sentence appealed by a higher court

Ages of Criminal Responsibility

The age at which the law considers a child capable of understanding thier wrongful actions and therefore the age at which a child can face criminal charges

Age of Criminal Responsibility as outlined in the Children, Youth and Families Act 2005 (Vic)

• A child under the age of 10 cannot commit a criminal offence

• A child between the ages of 10-14 can be charged with an offence if the prosectution is able to prove mens rea (they knew their behaviour was wrong) If this is not established the child will be released on the grounds they are doli incapax

• A child that is 14 or above can be charged or imprisoned for their actions