Legal SAC AOS 3

Human Rights

Human rights

Basic freedoms or standards that promote and uphold the dignity of all people, and re guaranteed by a moral sense of duty or by the law

Humans’ rights commission

a set of moral and legal guidelines that promote and protect a recognition of our values, our identity and ability to an adequate standard of living

How human rights have developed

• in 1901 woman couldn’t vote and it was changed in 1902

• First Nations weren’t considered Australian until 1967

• same sex marriage not recognised till 2017

International treaty

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

What must happen for Australia to be bound by a treaty?

they must specifically pass statute law to approve and adopt the various rights outlined in the international treaty

Universal Declaration of Human Rights

An international document that outlines basic rights and fundamental freedoms to which all humans are entitled

Rights from Universal Declaration of Human Rights

1. All people are born free and equal in dignity and rights

2. everyone is entitled to the same rights and freedoms

3. no one should be subject to slavery, torture or cruel or degrading treatment or punishment

4. Everyone has the right to life, liberty and security of person

Convention on the Elimination of all forms of Discrimination against woman

Aims to protect human rights of woman, promotes implementation of laws and systems that ensure woman are equal under the law and not discriminated against on the basis of their sex

Three main ways rights are protected in Aus

• - Statute law

• - Common law

• - The Australian Institution

Charter of Human Rights

Document that sets out the basic human rights and/or freedoms of the citizens in a particular state or territory

Human rights outlined in the charter

1. Right to life

2. Right to protection from torture and cruel, inhuman or degrading treatment

3. Freedom of movement

4. Freedom of thought, conscience, religion and belief

5. Right to take part in public life

General limitation clause

allows public authorities to restrict human rights in situations where it is reasonable and justified in order to uphold a free and democratic society

Strengths of protecting human rights though statute law

• - Parliament can create new legislation and amend existing statutes to incorporate further human rights, particularly as the views and values of the community change

• - Statutes are often detailed and precise and protect human rights specifically rather than being implied

• - Human rights contained in statutes are generally enforceable and need to be recognised by government organisations

• - Parliament has the ability to pass laws quickly if there is a need to promptly protect additional human rights

Weaknesses of protecting human rights though statute law

• As the supreme-making body, parliament can amend statutes to restrict or cancel existing human rights

• Parliament can include exemptions, limitations or restrictions in statutes, so protected human rights are not always absolute

• statutes don’t always enable a person to be awarded anything if their human rights are breached

• human rights protected by statute law aren’t as well protected as human rights contained in a constitution

Common law

is a law that has been established and developed over the years through decisions made by judges i state and federal courts

common law rights

freedoms established by judges when deciding on a case

Rights protected by common law

• right to silence

• right to fair trial

• right to legal representation

• right to transgender people to marry

Ultra vires

Latin term meaning ‘beyond the powers’, a law made beyond the powers of parliament

Codification

to collect all law on one topic together into a single statute

Abrogation

to abolish or cancel law

How Australian constitution protects human rights

• through express rights

• through implied rights

Express rights

Are rights stated in the Australian Constitution, they are entrenched, meaning they can only be changed by a referendum

implied rights

rights that are not expressly stated in the Australian Constitution but are considered to exist through interpretation by the High Court

Universal declaration of human rights (1984)

to respect and promote the achievement of the basic human rights and freedoms outlined in thr UDHR

UDHR broadly sets out

• the right of all people to take part in the government of their country, either directly or through freely chosen representatives

• the will of the people shall be ‘the basis of the authority of the government’, and that the people will have the opportunity to express these wishes through the right to vote

people disqualified from voting

• people who are incapable of understanding the nature and significance of voting due to being of ‘unsound mind’

• people found guilty of the criminal offence of treason or treachery

• person who is serving a prison sentence of three or more years

Laws that govern and protect the right to vote in Australia

• Sections 7 and 24- requires houses of parliament to be ‘directly chosen by the people’

• The High Court has been required to interpret the meaning to resolve cases

Reform

making changes/improvements to an existing system to make it more effective, fair or efficient

Conflicting issues and possible reform- Lowering the voting age

• Options- not compulsory and no fines but compulsory voting

• Human Rights Law Centre- support lowering it, allowing young people an opportunity to express their views and whom governs the country

What happened in the Roach vs Electoral Commissioner (2007)

• They determined whether an Act of Parliament that banned prisoners from voting breached the Australian Constitution

• In 2006 an Amendment changed it, allowing no one imprisoned to vote

• Roach challenged the constitutional validity of both Acts in the High Court with assistance of the Australian Rights Commissioner

• In 2007 Act was declared unconstitutional and invalid

Constitutional validity

refers to whether a law is legally valid under the Australian Constitution

Roach vs Electoral Commissioner

In simple terms the High Court ruled that the principal of representative government protects the right of the people to choose members of the Commonwealth Parliament