QCE QCAA Legal Studies Unit 4

Human rights

Fundamental rights considered to belong to everyone regardless of race, gender, age, nationality, or religion. They are universal, inalienable, indivisible, and interdependent.

International Covenant on Civil and Political Rights

treaty adopted by the United Nations in 1966 and enforced in 1976 to ensure that all people can enjoy fundamental civil and political rights

Civil rights

A subset of human rights relating to the rights the International Covenant on Civil and Political Rights, protecting people from violation by governments, organisations, and term-0individuals. These are important in criminal contexts as they protect people's right to a fair trial and include principles such as the presumption of innocence and the right to trial by jury.

international law

a body of rules established by custom or treaty and recognised by nations as binding in their relations with each other

Covenants, Treaties, Conventions

Legally binding agreements (documents) within international law

e.g. ICCPR, ICESCR

Sovereignty

The power and right for a state to govern its territory's internal affairs free from control of other states or external organisations.

Bilateral treaty

A treaty between 2 nation states. Promotes and maintains positive relations between parties, especially after conflict. E.g. Timor Gap Treaty between Australia and Indonesia (allowed both countries to exploit resources of the Timor Sea)

Multilateral treaty

A treaty between 3 or more nation states. Similarly promotes positive relations between parties, but also regulates behaviour of parties regarding larger issues.

E.g. Refugee Convention

Ratification

• The process where a state gives formal notice of their agreement to become legally bound by the obligations under a signatory treaty. • After ratification, states must pass legislation which aligns with the treaty's obligations (e.g. Racial Discrimination Act 1975 for the International Convention on the Elimination of all forms of Racial Discrimination)

accession

• When a state becomes a signatory to a pre-existing treaty and agrees to be legally bound by it as they would through ratification.

• After accession, the state must pass legislation which aligns with the treaty's obligations

reservation

• a declaration made by a state where it adopts only certain aspects of a treaty.

• done by passing legislation that corresponds only with the aspects of the treaty the state wishes to be bound by

• e.g. USA's reservations relating to the convention on the prevention and punishment of the crime of genocide, which involved not changing their constitution to align with the treaty's obligations

Royal commission

An official public investigation established by the government into an important issue. e.g. Aged care Royal Commission - inquiry was made into the quality of aged care services after issues of the aged care system were brought to light. The outcome...

International bill of human rights

Collective name for the:

• Universal Declaration of Human Rights (UDHR)

• International Covenant on Civil and Political Rights (ICCPR)

• International Covenant on Economic, Social, and Cultural Rights (ICESCR)

Together these documents aim to list and protect the fundamental human rights of everyone.

Describe the main features of international law developed from the bill of rights

UDHR: • Declaration - not legally binding • many articles with no specific parts • key rights outlined incl rights to democracy, non-discrimination, etc. ICCPR: • Covenant - binding • many articles with 5 parts • key rights outlined incl. peaceful assembly and free association ICESCR: • Covenant - binding • many articles with 5 parts • key rights incl. economic, social, and cultural rights of the UDHR

Describe the main features of the Refugee Convention

Convention Relating to the Status of Refugees 1951:

• defines 'refugee' and outlines their rights and protections

• calls on member states to provide asylum and protection to refugees and ensure their safety and rights are respected without returning them to danger (non-refoulement)

Describe the main features of the Refugee Protocol

Protocol Relating to the Status of Refugees 1967:

expanded the scope of the original Refugee Convention, removing the geographical and time limits (making the convention applicable to refugees from all regions at any time).

Describe the main features of the ICERD

International Convention on the Elimination of all forms of Racial Discrimination 1966:

Calls on member states to take effective measures in ensuring racial discrimination is eliminated within their jurisdictions.

Describe the main features of the CEDAW

Convention on the Elimination of Discrimination Against Women 1976:

• protects women's rights and brings the issue of DAW into the global spotlight

• calls on member states to condemn DAW within their jurisdictions

Describe the main features of the CRC

Convention in the Rights of the Child 1989:

• protects children's rights and ensures their well-being

• calls on member states to prioritise the best interests of the child within their jurisdictions

steps required for a county to be part of a treaty

1. signature

2. ratification

3. reservation

(accession is a later alternative)

Article 2.1 of the UN charter

• states 'all UN members should be of equal sovereignty'

• equal - all states will be treated equally and their laws for their own territories will be respected

• e.g. of sovereignty being exercised: brexit (UK leaving the European Union)

Article 2.4 of the UN charter

states 'all members shall refrain from the threat or use of force against the territorial integrity or political independence of any nation state'

Article 2.7 of the UN charter

states that the UN shall not intervene in matters within the jurisdictions of nation states (to uphold sovereignty rights) BUT permits the UN to intervene ONLY in instances of threats or breaches to peace and acts of aggression

territorial integrity

A state's ability to defend its territory's borders and resources

political independence

the freedom for states to use and develop any political system (meaning it is illegal for

role of the UN

according to article 1 of the UN charter:

• maintain international peace and security

• develop friendly relations between states

• promote HRs and social/economic development.

• deliver humanitarian aid

role of UN agencies

they act as special interest groups:

• promote HRs

• provide humanitarian aid

• raise public awareness

• promote legal change and hold governments accountable

UN High Commissioner for Refugees

• head of the United Nations Refugee Agency • role is to lead international efforts in protecting the rights of refugees • vital in upholding principles of the Universal Declaration of Human Rights and Refugee Convention.

Magna Carta 1215

• first document to limit powers of the king • established right to a fair trial (habeas corpus) - Magna Carta stated no man shall be tried without evidence and introduced juries to english law • established principle of lawful acquisition of property - Magna Carta stated no man shall be stripped of his possessions without lawful reason

4 pieces of commonwealth discrimination legislation

1. Racial discrimination act (Commonwealth) 2. Sex discrimination act (Commonwealth) (inl. sex, gender, and sexual orientation) 3. Age discrimination act (Commonwealth) 4. Disability discrimination act (Commonwealth) These protect stakeholders in areas such as employment, education, services, and buying/renting property

5 Express HRs in the constitution

RATIO

• freedom of Religion S116

• Acquisition of property on just terms S51 xxix

• Trial by jury for breach of commonwealth law S80

• freedom of Interstate trade S92

• rights of Out of state residents S117

Implied HRs in the constitution

• freedom of political expression/association i.e. speech (e.g. ACP v Cth)

• right to vote (Roach v Electoral Commissioner 2007)

• right to independent and free judiciary

parallel courses of action available to a person who wants to litigate about perceived discrimination in Queensland

1. Claim under federal law (sex/race/age/disability acts Commonwealth). Commenced in the Australian Human Rights Commission. 2. Claim under state law (Anti-Discrimination Act 1994 Queensland). Commenced in the Queensland Human Rights Commission then progressed in the Queensland Civil and Administrative Tribunal.

two main pieces of legislation in Queensland that are expressly designed to protect human rights

1. Human Rights Act 2019

2. Anti-Discrimination Act 1991

Role of Australian Human Rights Commission in protecting/advocating for HRs (4)

• support people and communities to defend HRs

• transform federal laws and policies to advance HRs by lobbying (persuading) with politicians

• ensure governments, parliament, and businesses respect HRs

• ensure accountability by investigating and exposing violations of HRs through advocacy

Role of Queensland Human Rights Centre in protecting/advocating for HRs

• support people and communities to defend HRs

• transform federal laws and policies to advance HRs by lobbying (persuading) with politicians

• ensure state government, parliament, and businesses respect HRs

• ensure accountability by investigating and exposing violations of HRs through advocacy

Role of Australian Law Reform Commission in protecting/advocating for HR (6)

• independent of the government (established by Australian Law Reform Commission Act 1996) • conducts inquiries involving human rights issues • assists the courts in cases involving human rights • comments on law and makes recommendations to improve human rights without the fear, favour or interference of the government • raises awareness of human rights issues • hears complaints relating to human rights

Role of Queensland Council for Civil Liberties in protecting/advocating for HRs (3)

• can hold the government accountable for its actions surrounding human rights as it is an independent, not-for-profit organisation • they do this through advocating for legal change and proposing solutions for human rights issues and public education/awareness • neutral observers at protests = can testify actions of protesters and police

Role of Australian Lawyers for Human Rights in protecting/advocating for HRs

an association of legal professionals which: • promotes and supports practice of human rights law in Australia • engages with the United Nations in relation to Australian human rights violations • engages internationally to promote human rights and the rule of law

Role of Special Interest Groups in protecting/advocating for HRs + examples (4)

• protect human rights through advocacy, public awareness, and informal pressures for legal change • independence from government allows them more freedom in publicly opposing legislation or government decisions which infringe on human rights • through educating the public on breaches of human rights, advocating for legal change Special Interest Groups can pressure the government to improve human rights • e.g. United Nations agencies and Non-Government Organisations

UN agency examples

• WHO (promotes health, keeps the world safe, and serves the vulnerable so everyone everywhere can enjoy health)

• UNICEF (UN Children's Fund - works to save children's lives, defend their rights, and help them fulfill their potentials)

• WFP (World Food Program - aims to eliminate world hunger and malnutrition)

Non-government organisations + examples (NGOs)

• Non-Government Organisations are non-profit, non-government bodies that have been set up to protect human beings across the world • Red Cross Australia - International Federation of Red Cross and Red Crescent Societies provides humanitarian aid and International Committee of the Red Cross helps protect human rights in conflict situations. • Amnesty International Australia - focuses on key civil rights such as ending torture and abolishing the death penalty

role of the media in protecting/advocating for HRs (4)

• essential to democracy to inform citizens of a country about matters concerning their political and legal systems • increases public knowledge of rights and how to respond to violations • raises awareness about human rights issues on international and domestic levels • uncovers concerning behaviors (of politicians etc) and allows marginalised voices to be heard

UN general assembly

• made up of all member states with equal power

• provides a unique forum for multilateral discussion of international issues including peace and security

UN security council

A body of five permanent powers (UK, USA, France, China, Russia) and ten rotating member states, which make decisions about international peace and security including authorising military action

regulated right + example

• a right that is legislatively regulated, defined, and controlled

• e.g. the right to protest and freedom of assembly, where public order and safety are protected and maintained by the gov's restrictions under the Peaceful Assembly Act 1992 (Qld).

What is the relevant Commonwealth legislation associated with the Refugee

Convention?

The Migration Act 1958 (Cth)

Explain how the High Court has interpreted s51 (xxix) of the Australian Constitution in relation to international law.

S51 (xxix) external affairs has been interpreted by the High Court as giving power to the Commonwealth to pass laws that align with the international treaties to which Australia is a signatory.

Explain the significance of the case of Eatock v Bolt .

a 2011 decision of the Federal Court of Australia which held that

two articles written by columnist and commentator Andrew

Bolt and published in The Herald Sun newspaper had

contravened section 18C, of the Racial Discrimination Act 1975 (C'th).

Specifically, he made comments around 'fair skinned' Indigenous people and the validity of their indigeneity when it comes to accessing benefits.

Explain the significance of the case of Roach v Electoral Commission

Roach v Electoral Commissioner is a High Court of Australia case, decided in 2007, dealing with the validity of Commonwealth legislation that prevented all prisoners from voting.

The Court held that the 2006 amendments were inconsistent with the system of representative democracy established by the Constitution.

This meant that only prisoners serving a sentence of 3 years or more didn't have a right to vote.

Purpose of UN Charter

• Allows the UN to take action on a wide variety of

issues due to its unique international character and the

powers vested in its Charter, which is considered an

international treaty.

• the UN Charter is an instrument

of international law, and UN Member States are bound by it.