legal studies AOS 4

human rights

basic freedoms, standards or entitlements that promote and uphold dignity of all people

the development of human rights

human rights have been deveopled over time what are now considerd to be universal human rights have not necessarily always been human rights avalible to all

the Universal declaration of human rights

an international document that outlines basic rights and fundamental freedoms to which all human beings are entitled

how human rights are protected in Australia 

an example of how human rights are protected is like how the right to privacy is protected through the freedom of information act 1982 (Cth) and the privacy and data protection act 2014 (vic)

rights protected by statue law

the right to privacy as acts regulate the use storage and disclosure of private information by the government and by private organizations like how the freedom information act 1982 (Vic) protects its

Victorian charter of human rights and responsibilities

among the 20 rights protected by the human rights charter are rights that help ensure our legal system achieves justice. e.g the huma rights charter protects the right to a fair trial

how the Victorian charter of human rights protects the right to fair hearing

the right is protected through the grantee of a civil matter being heard by a competent, independent and impartial court or tribunal

strengths of the Victorian charter of human rights 

parliament can create new legislation and amend existing statues to incorporate further human rights, particularly as the views and values of the community change

human rights contained in statues are generally enforceable through the courts 

the VCHRR requires Victorian parliament, state and local government departments such a the police comply with it 

weaknesses of the Victorian charter of human rights 

parliament also has the ability to cancel (repeal) and amend (change) statues to restrict or cancel existing human rights 

in order to uphold a breach of a right protected through statue law the courts it can be expensive and time consuming 

the VCHRR does not establish the right for Victorians to bring a case against parliament for creating a law that breaches the rights of the charter 

strengths of the vic charter and statue law 

parliament can create new legislation and amend existing statues to incorporate more human rights 

human rights contained statues are generally enforceable through the courts 

weaknesses of the vic charter and statue law

parliament also has the ability to cancel and amend statues to restrict human rights

in order to uphold a right protected by statue law you must go to courts which is expensive and time consuming

common law protects the rights by

through the courts recognising and upholding human rights contained in statue law

strengths of how common law protects rights 

• Courts have the ability to interpret the meaning to words in Federal and State legislation and the Constitution to determine whether particular actions do or do not breach human rights.

• Courts are independent of parliament and can establish precedent free from political pressures

weakness of how common law protects rights

• Courts must wait for a case to come before them to be able to declare the existence of human rights.

• Parliament, as the supreme law-making body, can abrogate common law rights

courts can determine the validity of human rights legislation by

using their power to declare acts of parliament invalid if the are made outside of beyond parliaments law-making powers

common law often establishes these rights:

• the right to silence 

• the right to a fair trial 

• the right to legal representation 

• the right of transgender people to marry 

how common law protects human rights

• through the courts establishing new human rights, independent of the human rights protected by statute law

• through the courts determining the validity of human rights legislation.

• through the courts recognising and upholding human rights contained in statute law

how the courts recognise and uphold human rights contained in statue law 

Courts can recognise, uphold and strengthen the various human rights protected under statute law, including the Human Rights Charter.

express rights

a right that is explicitly stated wording of the Australian constitution. these rights include right to free interstate trade and commerce, right to not be discriminated against by the commonwealth based on state of residence, righ to receive ‘ just terms’ when property is acquired by the commonwealth, right to trial by jury for commonwealth indciatable offences, right to freedom of religon

implied rights

rights that are not explicitly stated in the Australian constitution as the high court inerpretates the constitutions meaning.  the right to freedom of political communications 

strengths of the constitution protecting rights

• All rights, including human rights, protected by the

  Constitution are fully enforceable through the High

  Court, and any statute found to breach those rights can

  be declared invalid.

• Express rights are entrenched in the Constitution and can only be abolished or changed through the referendum process; that is, via a compulsory public vote.

weakness of the constitution protecting rights

• Does not operate automatically i.e. doesn’t prevent parliament from creating laws that infringe on the right and can only be upheld if a case is brought. There is also no right to compensation (Can only have the law ruled invalid).

• 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.

the right to vote

the freedom or ability of people to choose their leaders or representatives in an election (suffrage)

development of right to vote

women got the right to vote in Australia in 1902 and indigenous Australian received the right in 1967

how statue law supports the right to vote 

recognised in the commonwealth electoral act 1918 (Cth). all citizens aged 18 and over have the right to vote in federal election subject to certain disqualifications 

how the VCHRR supports the right to vote

section 18 guarantees the right of Victorians to take part in public life, including the right to vote in state and local council elections.

how the constitution supports the right to vote

Sections 7 and 24 of the Australian Constitution require the houses of the Commonwealth Parliament to be ‘directly chosen by the people establishing the principle of a representative government

how common law supports the right to vote

The High Court has clarified the meaning of sections 7 and 24 and restricted the ability of the Commonwealth Parliament to unreasonably deny Australian citizens the right to vote

arguments for lowering voting age

• young people fell the long term effects of todays Political decisions

• many are educated and interested in a wide range of political views

• denying the right to vote may be breach of their human rights

arguments against lowering the voting age

young people lack the life expierence, knowledge or maturity to case an informed vote

reforms to the right to vote 

lowering the voting age and allowing all prisoners to vote 

roach case

• in 2007 Vicki lee roach and indigenous Australian serving a prison sentence, challenged commonwealth laws that banned all prisoners form voting in federal elections

• she argued that the blanket banned was unconstitutional. as the constitution (section 7 and 24) requires that members of the parliament may be directly chose by the people

• the high court challenged in part of the that a complete ban was invalid, but allowing restrictions for prisoners serving sentences of three years or longer

the right to freedom of religion

to be free to hold, practise and express religious beliefs, and the right not to hold religious beliefs

how the right to freedom of religion is protected through statue law

the CTH, sate and territory parliaments have passed statues that protect the right to freedom of religion. acta that protect this is the racial religious and tolerance act 2001 (vic)

how the right to religion is protected by the consitution 

section 116 of the constitution protects the right to religion as it prevents parliament from passing a law that breaches the right

how common law protects the right to religion

you have the right to bring a case to court if you believe the state of commonwealth legislation has breached their right to freedom of religion. you can take the case to the high court if you believe that the government has breached the right. if successful the CTH parliament that made the law my be declared invalid