Legal Studies

Define Implied Rights

Implied rights are legal or political freedoms that are not written directly in a constitution or law, but are found by courts to be necessary for that system of government to work

Implied Freedom of Political Communication

This right allows Australians to freely communicate and discuss political and government matters

It is essential for a functioning democracy, ensuring citizens can debate policies, criticise the government, and make informed voting decisions

Established mainly through cases like Australian Capital Television pty Ltd v Commonwealth (1992)

Implied Right to Democratic Participation

A legal principle where courts infer a constitutional protection for citizens to take part in public affairs and political life, such as voting or communication about the government

define an expressed right

An express right is explicitly written and stated in a legal document, such as the constitution

Section 116

 (Freedom for Religion) Section 116 The government cannot force anyone to follow any one religion, nor can it prevent anyone from freely practicing his or her own religion

Section 51 (xxxi)

(Protection against unjust acquisition of property) Section 51(xxxi) allows the Commonwealth to acquire property only on “just terms” (Fair compensation)

Section 80

(Right to trial by jury) Section 80 of the Constitution, anyone accused of a serious crime under Commonwealth law must be tried in court by a jury

Section 92

(Freedom of interstate trade and commerce) Section 92 states that trade, commerce, and intercourse among the states shall be “absolutely free”  

Section 117

 (Freedom from state-based discrimination) Section 117 protects a resident of any state from being subjected to any disability or discimination in another state that would not equally apply to residents of that other state.

Define Human rights

Human rights are basic freedoms and protections that belong to every single person simply for being human, including the right of life, freedom of speech, and equality before the law.

Covenants

A covenant is a formal, binding promise or agreement in a contract or deed requiring a part to do a specific action, refrain from an action, or accept certain property conditions.

Treaties 

A treaty is a written international agreement between countries or international groups that is bound by international law. Key aspects include sovereign states, legal obligation, and formal consent.

States 

In legal and international terms, a state is an independent political entity defined by found core criteria: a permanent population, a defined territory, an effective government, and the capacity to enter relations with other states.

Sovereignty 

Sovereignty is the supreme, independent authority and power of a state to govern its people, make and enforce laws within a defined territory, and manage external relations free from outside interference.

Repel

To officially cancel, revoke, or do away with an existing law, statute, or regulation by legislative action, rendering it no longer in force or legally valid

Signatory treaty 

A signatory to a treaty is a state or international organization that has signed the text of an agreement but has not necessarily completed the formal ratification required to be fully bound by it

Convention 

A convention in law is either an unwritten political norm that regulates how government power is exercised, or a formal international treaty between nations

Multilateral 

Multilateral means involving or binding three or more parties, countries, or international organizations

Bilateral 

Bilateral means a two sided agreement or arrangement where both parties make mutual promises and take on legal obligations to each other

What is non-refoulement?

Non-refoulement is the principle that a country should not return a refugee or asylum seeker to a place where they face persecution, torture or serious harm.

Bill of rights 

A formal declaration of a country’s fundamental civil liberties and rights that protects citizens against government overreach and arbitrary interference

Royal commission 

An independent, high level public inquiry established by the executive government to investigate a matter of major public importance, controversy, or concern.

What is the Universal Declaration of human rights (UDHR)

The Universal Declaration of Human Rights is a 1948 UN declaration that sets out universal standards for human rights. It is influential but is not itself a legally binding treaty.

What is the International Bill of Human Rights?

The International Bill of Human Rights consists of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

What does the ICESCR protect?

The ICESCR protects economic, social and cultural rights, including rights to work, fair conditions of work, social security, education, health and an adequate standard of living.

What is the key difference between the ICCPR and ICESCR?

The ICCPR focuses on freedoms from government interference and participation in public life, while the ICESCR focuses on living conditions and access to social services such as health and education.

Why is the ICCPR important for Australia?

Australia has ratified the ICCPR, meaning it has accepted international obligations to respect and protect its civil and political rights, although ratification does not automatically make every ICCPR right enforceable in Australian courts.

Does ratifying a treaty automatically make it Australian domestic law?

No. Australia usually needs Parliament to pass legislation to incorporate treaty obligations into domestic law before individuals can generally enforce them in Australian courts.

What is a reservation to a treaty?

A reservation is a statement by a country that it will not be bound by, or will limit the effect of, a particular treaty provision.

What is state sovereignty?

State sovereignty is a country’s legal authority to govern itself and make decisions within its own territory without outside control.

How can sovereignty limit international human rights law?

International organisations cannot always force a sovereign country to change its laws or policies, so enforcement often depends on a country’s willingness to comply.

What is ICERD?

The International Convention on the Elimination of All Forms of Racial Discrimination aims to eliminate racial discrimination and promote equality between racial and ethnic groups.

What is CEDAW?

The Convention on the Elimination of All Forms of Discrimination against Women requires states to work towards eliminating discrimination against women and achieving substantive equality

What is CAT?

The Convention against Torture prohibits torture and cruel, inhuman or degrading treatment or punishment.

What is the CRC?

The Convention on the Rights of the Child protects the rights of people under 18, including rights to protection, education, healthcare and involvement in decisions affecting them.

What is the CRPD?

The Convention on the Rights of Persons with Disabilities promotes equality, dignity, inclusion and participation for people with disabilities.

What is the Refugee Convention?

The 1951 Refugee Convention defines who qualifies as a refugee and establishes protections for people fleeing persecution.

What is the role of the United Nations in human rights?

The UN develops international human rights standards, provides forums for cooperation, monitors compliance, investigates concerns and applies diplomatic pressure on states.

Why is international human rights law effective?

It establishes common standards, creates international pressure, encourages domestic legal reform, gives advocates a framework for criticism and allows monitoring by UN bodies.

Why is international human rights law sometimes ineffective?

Enforcement is limited because states may ignore recommendations, treaties may not be incorporated into domestic law, and political power and sovereignty can prevent strong action.

Unitied Nations Charter

The Un Charter is the foundations international legally binding treaty of the United Nations.

Key Purpose

• Maintain peace

• Protect Human Rights

• Promote Cooperations

• Uphold international Law

2.1

“The Organisation is based on the principle of the sovereign equalty of all its members

Key Features

• Sovereign Equality

  • Every member state holds equal legal status

• Independence and Autonomy

  • Each state has the right to manage its own domestic and foreign affairs

• Equal Rights and Duties

  • All members share the same legal obligations

2.4

Bans the threat or use of miltary force between nations

2.7

Prohibits the UN from intervening in matters that fall essentially wihtin the domestic jurisdiction of any state

Ratification 

Ratification is the legal act of approving or confirming a prior actin that was taken without proper authority. By ratifying the act, the approving part accepts its legal consequences as if they had originally authorized it.

Steps

• Negotiation

• Ministerial and Executive council approval

• Signature

• Parliamentary Scrutiny

• Entry into force

Step 1 of ratification

Mandate to negotiate

• When approval is sought for hte formal commencement of treaty negotiations

Step 2 of ratification

Negotiations and finalisation of text

• When seeking endorsement ot conclude negotiations

Step 3 of ratification

Ministerial and Executive Council approval

• When endorsement is sought to sign the final text of a treaty

Step 4 of Ratication

Signature

• Following the signature, treaties are tabled in both houses of parliament

Step 5 of ratification

Parliament Scrutiny

• Parliament reviews the treaty’s text and impacts before the government officially signs off on it

Step 6 of ratification

Entry into force

• Parliament ensures domestic laws are actually updated and passed before the treaty legall goes live

Convention Scaffold

"The [Convention name] is a legally binding international treaty adopted by the [UN General Assembly] in [year], which aims to [protect/promote X right]. Australia demonstrated its commitment by [signing in year] and [ratifying in year], and fulfils its obligations domestically through [implementing legislation/agency], with compliance monitored by [UN body/committee]."

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is a legally binding international treaty adopted by the UN General Assembly in 1984, which aims to prohibit torture and cruel, inhuman or degrading treatment by requiring states to criminalise torture, prohibit its use in all circumstances, and prevent the return of people to countries where they face torture. Australia demonstrated its commitment by signing in 1985 and ratifying in 1989, and fulfils its obligations domestically through the torture offence in the Criminal Code Act 1995 (Cth) Division 274 (carrying up to 20 years' imprisonment) and the non-refoulement provisions of the Extradition Act 1988 (Cth), with compliance monitored by the UN Committee Against Torture