LEGAL EA

QCE Lecture

Human Rights

The fundamental rights that all people have by virtue of being human beings regardless of race, gender, age, nationality or religion. They are defined as the supreme, inherent, and inalienable rights to life, to dignity, and to self-development and are defined internationality, nationally and locally by various law making bodies.

States

States are countries recognised as having legal standing under international law as they have a defined territories, one government and a permeant population coupled with the ability to enter into relationships recognised by law with other states.

Covenants and treaties

Covenants: a binding legal agreement between states - they are a type of treaty

Treaties: a formal agreement between two or more states that define and modify their mutual duties and obligations

Convention: a binding agreement between states and are stronger than declarations because they are legally binding. When the UN adopts a treaty, it creates international norms and standards.

Convention = treaty = covenant = a legally binding agreement

Multilateral and bilateral treaties

Multilateral: more than two nation-states

Bilateral: two nation-states

Ratification

Occurs when a signatory country implements legislation domestically. It is the process of full adoption of the obligations imposed by a treaty or covenant into Australian law by passing of legislation through the federal parliament that mirrors and enacts the treaty obligations.

Ratification process

UN (INAS)

1. issue in need of resolution or protection

2. negotiation of the treaty and articles with member states

3. adoption by the UN general assembly

4. signature by member states

AUS (SRRI)

5. signature by Australia (not yet ratified)

6. review by JSCOT who makes recommendations

7. ratification: agree to be bound by the treaty

8. implementation through domestic laws

*Accession: when a nation-state enters into a treaty that has already been formed and entered into by other states

Sovereignty

Is the concept that a government exercises full control over affairs within a geographical or territorial limit this means it can pass laws and enforce them within this area and exists as an essentially independent legal and political body.

Bill of rights - Australia does not have

A formal declaration of the legal and civil rights of the citizens of any state, country, or federation. It exists to protect the rights of individuals from being violated by the state or other individuals.

Royal Commission

A Royal Commission is the highest form of inquiry, independent of government, into matters of public importance. They have broad powers to hold public hearings, call witnesses under oath and compel evidence. RC can also make recommendations to government about what should change

Reservation

When a nation state does not wish to be bound by every provision in a treaty so ratifies only the parts of the treaty by which it does agree to be bound.

Separation of Powers

Legislature (Parliament) - makes laws

Executive (Gov departments) - enforces the law

Judicial (courts) - interprets the law

Division of Powers

Exclusive powers (only the commonwealth can make laws)

Concurrent (shared by states and the commonwealth)

residual (left to states)

Describe the main features of the UDHR (IBR)

The UDHR was adopted by the UN General Assembly in 1948 and is a millstone document that outlines fundamental human rights that require protection. Features of the UDHR is that rights are universal and inalienable rights meaning that they apply to everyone, everywhere regardless of race, gender, nationality or any other statues.

• not legally binding but has shaped many international human rights treaties

• includes civil and political rights and economic, social, and cultural rights

Describe the main features of the ICCPR (IBR)

The ICCPR is a key international treaty that was adopted by the UN in 1966 and forms part of the international bill of rights. Main features of the convention is that it protects a wide range of civil and political rights including the right to a fair trial and due process, the right to life, and the right to vote and participate in public life.

monitoring committee: the UN Human Rights Committee

Describe the main features of the ICESCR (IBR)

*Progressive realisation

The ICESCR is a core international human rights treaty that was adopted by the UN in 1966 to ensure the enjoyment of economic, social, and cultural rights. A main feature of the convention is progressive realisation, which is where states must take steps to achieve the outlined rights over time using their available resources, because some rights, such as the right to education, require significant resources and cannot be implemented immediately.

Economic rights: right to work, right to just and favourable work conditions

social: right to social security, protection of the family, and adequate SOL

cultural, right to education, right to participate in cultural life

Describe the main features of the Refugee Convention (PT)

*non-refoulment

The purpose of the convention was to identify the who would be considered a refugee and to establish their rights and obligations of states to protect them. A main feature of the Refugee Convention is non-refoulement which is where a state cannot return a refugee to a country where their rights, freedom, or life is threatened.

1967 protocol:

• Removed the geographical and time limits that were a part of the 1951 convention

Monitoring body: UN High Commissioner for Refugees

Describe the main features of the ICERD (PT)
*equality before the law, non-discrimination and ICCPR, ICESCR

The purpose of ICERD is to eliminate racial discrimination and promote understanding among races. The main features include the protection of key rights including equality before the law, freedom from discrimination, and right to equal participation in civil, political, economic, social and cultural life.

Describe the main features of CEDAW (PT)

CEDAW was adopted by the UN in 1979 and promotes non-discrimination and women's rights with an emphasis on political life, representation, and rights to nationality, education, employment, and health.

*Optional protocol: submission of claims to the committee and gives the committee power to investigate claims

Committee: Committee on the Elimination of All Forms of Discrimination Against Women

Describe the main features of the CRC (PT)

A main feature is non-discrimination as this recognises that all children have rights regardless of race, colour, sex, language, religion, opinion, or other status. Children's rights in the convention include the right to:

• Be treated fairly

• Have a say about decisions that affect them

• Live and grow up healthy

• Be safe

• Education

Another feature is the best interests of the child. This must be a primary consideration in all decisions affecting the child and respect the views of children

• *Australia has child rights issues e.g. age of criminal responsibility

Describe the main features of CAT (PT)

The convention against torture is a principle international human rights treaty that absolutely prohibits torture in all situations including war or emergencies. The convention requires states to criminalise all forms of torture, both mental and physical.

Optional protocol:

• creates a system of regular visits to places where people are deprived of liberty (e.g. jails, mental health facilities)

*Monitoring body: CAT Committee

Describe the main features of the Convention on the Elimination of Discrimination for Persons with Disabilities

A main feature of this convention is that states must eliminate discrimination and remove barriers that limit full participation in society. This is evident in article 9 which focuses on accessibility where states must eliminate barriers to accessibility in buildings, transport, communications and other public services.

Optional protocol:

• allows individuals or groups to submit complaints to the committee about violations

Monitoring Body: Convention on the Elimination of Discrimination for Persons with Disabilities Committee

Explain the process by which treaty obligations translate into domestic law through accession or ratification

• Ratification

• Accession

Treaty obligations undergo accession or ratification to become domestic laws. Ratification is the process of full adoption of the obligations imposed by a treaty into Australian law by passing legislation through Federal Parliament that gives effect to the treaty obligations.  Accession is where a nation-state enters into a treaty that has already been formed after it has been negotiated and signed by other states and has the same legal effect as ratification.

Explain the role of reservations

A reservation is a statement made by a state where it will exclude or alter the legal effect of certain provisions of the treaty. The role of reservations is to enable a state to accept a multilateral treaty as a whole by giving it the option not to apply certain provisions with which it doesn’t not want to comply.

Explain the effect of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires proposed legislation to include a Statement of Compatibility assessing its consistency with human rights. It also established the Parliamentary Joint Committee on Human Rights, which scrutinises legislation for human rights compatibility. This ensures human rights are considered during the law-making process.

Explain the rights of states → soverignty

The concept that a government exercises full control over its affairs meaning that it can pass laws and enforce them within the area and exists as a independent legal and political body.

Explain the rights of states → Sovereign equality - Article 2.1 of the UN Charter

Sovereign equality is the concept that all sovereign states are treated equally in international law and their right to make laws for their own territory will be respected.

Explain the rights of states → Political independence - Article 2.7 of the UN Charter

A state has the right to an independent political system of its own choice and should be free form interference from any other state in how that is exercised.

Explain the rights of states → Territorial integrity - Article 2.4 of the UN Charter

Territorial integrity is the principle that a state's internationally recognised borders and territory must be respected and protected from external interference, acquisition, or alteration by force.

Explain the role of the UN

The role of the UN is to maintain international peace and security, develop friendly relations among nations, achieve international co-operation in solving international problems, and protect and uphold human rights.

UN Agencies (5)

• World Health Organisation - the attainment by all people of the highest possible level of health

• International Monetary Fund - global monetary cooperation and financial stability

• World Bank group - poverty reduction and improved SOL

• UN Hight Commissioner for Human Rights coordinates human rights activities and supervises the Human Rights Council in Geneva. They work to protect and promote human rights that are guaranteed under international law

• UN High Commissioner for Refugees coordinates international efforts to protect refugees and resolve refugee problems worldwide.

Describe key human rights initiated or promoted in the Magna Carta

Cornerstone of human rights protection and established many fundamental rights used today.

• Due process and equality before the law (right to a fair trial)

• Right of the church to be free from government influence

Describe the key human rights promoted in the Racial Discrimination Act

The Racial Discrimination Act promotes the key human rights of equality before the law and non-discrimination regardless of race, colour, or national or ethnic origin and makes racial discrimination unlawful in Australia.

Describe the key human rights promoted in the Sex Discrimination Act

Promotes the human right of freedom from discrimination on the grounds of sex, sexual orientation or gender identity

Describe the key human rights promoted in the Disability Discrimination Act

Promotes the human right of freedom from discrimination in regard to people with a disability. The act protects people with a disability from discriminatory treatment in a range of areas including employment, education and access to services. The act makes disability discrimination unlawful and promotes equal rights and equal opportunity.

Describe and explain the role of the Australian Constitution in protecting express human rights in Australia

Express Rights

The Australian Constitution protects express human rights via explicitly detailing five human rights:

1. The right to vote

2. Protection against acquisition of property on unjust terms

3. The right to trial by jury

4. Freedom of religion

5. Prohibition of discrimination based of State of residency

The express enshrinement of these rights in the Constitution acts to protect these human rights through prohibiting any federal laws that infringe upon them from being passed.

Describe and explain the role of the Australian Constitution in protecting implied human rights in Australia

Implied Rights

Rights that are derived from interpretations of the Australian Constitution by the High Court of Australia and are not specifically outlined.

1. The right to freedom of political communication

2. The right to free speech

3. The right to democratic representation

 

*the right to vote is technically an implied right but because the government requires a representative democracy under sections 7 and 24, the right to vote is declared a 'constitutional guarantee' which places it on the same level as and express right.

Describe and explain the role of the Australian Constitution’s foreign affairs powers within S 51 in protecting human rights in Australia

Under the foreign affairs power in section 51 (sub section 29) of the Australian Constitution, the Parliament has the power to make laws with respect to external affairs.

This means the Commonwealth Parliament can enact laws which implement the human rights outlined in international treaties to then protect these rights through Australian law.

Explain and analyse the rights that Australian’s have in criminal and civil contexts → right to free speech

Australians have a right to free speech, allowing individuals to express their opinions and participate in public debate. This promotes democratic participation and holds governments accountable.

However, the right is not absolute, as laws such as defamation and anti-vilification laws may limit speech to protect the rights and safety of others. Therefore, free speech supports individual freedom but must be balanced against the protection of other human rights.

Explain and analyse the rights that Australian’s have in criminal and civil contexts → right to protesting and freedom of assembly

Australians have the right to protest and assemble peacefully, allowing individuals and groups to express their views and advocate for change. This right supports democracy by enabling participation in public debate and holding governments accountable.

However, the right is not absolute, as laws may restrict protests to protect public safety, order, and the rights of others, such as the need to aquire a permit. Therefore, freedom of assembly promotes democratic participation while balancing competing rights and interests.

Explain and analyse the rights that Australian’s have in criminal and civil contexts → right to freedom from discrimination

Australians have the right to freedom from discrimination, which protects individuals from unfair treatment based on characteristics such as race, sex, age, or disability. This right promotes equality by ensuring people have equal access to employment, education, and services. However, discrimination can still occur, and laws must balance the rights of groups, especially the vulnerable.

Explain and analyse the rights that Australian’s have in criminal and civil contexts → right to democratic representation

Democratic representation

The commitment to representative government is embedded in the Constitution

• Sections 7 and 24: both houses of the Federal Parliament are to be "directly chosen by the people"

• Sections 8 and 30: when choosing members of Parliament "each elector shall vote only once"

Explain and analyse the rights that Australian’s have in criminal and civil contexts → right to freedom of religion

Freedom of Religion

Federal:

• Section 116 of the Constitution prohibits the Federal Parliament from enacting laws:

  • Establishing any religion

  • Imposing any religious observance

  • Prohibiting the free exercise of any religion

QLD:

• Right to freedom of religion is protected by

  • The Anti-Discrimination Act 1991

  • Section 20 of the Human Rights Act 2019

International Treaty

• ICCPR - recognises the freedom of thought, conscience and religion

Explain and analyse the rights that Australian’s have in criminal and civil contexts → right to trial by jury

Australians have the right to a trial by jury for serious Commonwealth offences tried on indictment under s 80 of the Australian Constitution. This helps ensure fair and impartial decision-making by members of the community. However, the right only applies to serious offences and not cases heard in a magistrates' court, limiting its scope.

Explain the legal processes available for resolving human rights complaints in Australia → protesting

• Must have a permit

• Provide authorities with a notice of the intention to hold the protest and gaining official approval to do so

• Protests are unlikely to resolve human rights complaints, where outcomes are informal and unpredictable

• With enough support, a protest may lead to changes in the law but this is unlikely from a single protest.

• A likely outcome is increased awareness of the issue because of media coverage

Explain the legal processes available for resolving human rights complaints in Australia → lobbying

Lobbying is a legal process where individuals, interest groups, or organisations seek to influence government decisions, laws, or policies to better protect human rights.

This can involve meeting with politicians, making submissions, or running public campaigns. Lobbying can be effective because it encourages law reform and raises awareness of human rights issues, although success depends on government support and public pressure.

Explain the legal processes available for resolving human rights complaints in Australia → lodging complaints

To lodge a complaint with the Australian Human Rights Commission (AHRC), the complaint must be in writing and include details of all necessary information regarding the nature of the complaint.

The individual must prove:

• Who breached their human rights

• What occurred was unlawful

• Damage and harm was suffered because of what was done

Where appropriate, the commission will invite parties to participate in conciliation, which is an informal process that allows the complaint respondent to discuss the issues in the complaint to attempt to resolve the matter.

• If the matter remains unresolved, the Commission may request more information before making a decision

Explain the legal processes available for resolving human rights complaints in Australia → tribunal/court actions

A formal method of resolving human rights complaints in Australia. Court actions require parties to follow a very specific set of processes and rules in a formal hierarchical system.

Court/tribunal outcomes are formal in that judges/magistrates are restricted by legislation and precedent in the outcomes they can apply, however, if there is uncertainty in such outcomes for the resolution of the complaint. While court/tribunal decisions may be appealed, the outcomes are enforceable.

Australian Human Rights Commission (AHRC)

Has two roles

1. Receive, investigate and attempt to resolve complaints about discrimination and breaches of human rights through conciliation

Conciliation is basically a meeting where an independent conciliator helps both sides reach an agreement. The conciliator does not decide who wins or loses.

2. Reports and makes recommendations to the government for law reform and educates the public about human rights

   • a limitation is that the government doesn’t have to implement the AHRC’s recommendations

AHRC strengths

✅ The AHRC is generally faster and less expensive than litigation in a court, making human rights protection more accessible for complainants.

✅ The AHRC's conciliation process provides an accessible and informal way for individuals to resolve human rights complaints without needing lengthy court proceedings, increasing access to justice.

✅ As an independent statutory body, the AHRC can investigate issues and make recommendations without direct political influence, supporting impartial human rights protection.

AHRC weaknesses

✅ The AHRC's recommendations are generally not legally binding, meaning governments or organisations may choose not to implement them, limiting the Commission's effectiveness.

✅ The AHRC relies on individuals making complaints. If people are unaware of their rights, fear retaliation, or cannot access the complaints process, some human rights breaches may go unreported and unresolved.