Legal Studies: External Examination

What is a human right?

Fundamental rights that are considered to

belong to every person regardless of race, gender, age, nationality or religion.

What is the definition of universal?

Apply to all people, at all times, in all circumstances without distinction.

What is a human right?

Fundamental rights that are considered to

belong to every person regardless of race, gender, age, nationality or religion.

What is the definition of universal?

Apply to all people, at all times, in all circumstances without distinction.

What is the definition of inalienable?

Rights can not be given up, sold or traded.

What is the definition of indivisible?

All rights are equal - not right is better than another.

What are the most basic types of rights?

Legal and moral

Where does a legal right exist?

A legal right exists in either common or statute law.

What is a common law right?

The rights that exist in common law are those that, over time, were developed in order to provide some form of protection.

What is an example of a common law right?

The rules established in regard to negligence - Donoghue v Stevenson [1932] AC 562, in which duty of care was established.

What is an example of a legal right?

Can easily be found in a range of Acts of Parliament designed to ensure that certain rights are protected.

A person has the right not to be discriminated against. This can be found in section 6(1) of the Anti-Discrimination Act 1991 (Qld), which aims 'to promote equality of opportunity for everyone by protecting them from unfair discrimination'.

What is a legal right?

A right on which the society has agreed and formalized into law.

What is a right?

The privilege or power to be able to do something; some rights are recognised by law.

What is some examples of a moral right?

It is not a legal right throughout Australia - voluntary euthanasia.

Another moral right that has recently moved to have the status of a legal right is the right of same-sex couples to be treated as equal to opposite- sex couples, and to have equal rights in marriage.

In 2017, this right was confirmed as a legal right following changes to the Marriage Act and other related legislation.

What is a moral right?

Moral rights are not laws or punishable by the courts, but they are generally acceptable standards that the majority adhere to.

An example of the need for balancing competing rights?

Legal balancing of conflicting rights is a tool for legal conflict resolution. It is relevant in situations where protected rights collide.

This argument is prominent when the issue of gun control is considered in the United States.

It was originally introduced to ensure the state militias (a military force raised from a civilian population to assist the regular army in an emergency) that existed in the United States at the time were armed sufficiently to oppose any foreign force or a tyrannical federal government that may control the new country of the United States.

Others maintain that it is the right of the individual to own such a weapon, as protected by the Second Amendment, and that the state should not interfere with this right.

What is a customary right?

Customary rights originate from customs and traditions that have been established over time within a certain socio-cultural group like a trade or locality, but with no legal basis.

What is an example of a customary right?

In a broader sense, the practice of 'squatting',

or staying in houses or on land that you do not

own, is an example of customary rights.

Social behaviours between individuals or groups

in society sometimes become so important that

they gain the force of law, or become law. There

is a certain respect between individuals, at least on

most occasions, and this often becomes customary

behaviour that, if breached, will bring customary

enforcement or penalty.

What is the Australian Constitution?

A set of rules that outlines the legal and political system by which Australia is governed.

What is a Bill of Rights?

A formal declaration of the legal and civil rights

of the citizens of any state, country or federation.

What is Parliament able to do under section 51 (xxxi) of the Australian Constitution?

Allows the Parliament to make laws for the acquisition of property on just terms from any state or person for any purpose in respect of which the Parliament has power to make laws.

What is Parliament able to do under section 80 of the Australian Constitution?

1. The trial on indictment of any offence against any law of the Commonwealth shall be by jury.

2. Every trial shall be held in the State where the offence was committed.

3. If the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

What is Parliament able to do under section 116 of the Australian Constitution?

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion.

What is Parliament able to do under section 92 of the Australian Constitution?

Trade within the Commonwealth to be free.

What is Parliament able to do under section 117 of the Australian Constitution?

Provides protection against discrimination on the basis of state of residence, may also protect freedom of movement within Australia.

What is the purpose of the Human Rights (Parliamentary Scrutiny)

Act 2011 (Cth)?

To ensure all new Bills must be compatible

with the rights and freedoms recognised in the

seven core international human rights treaties that

Australia has ratified.

What is the function of the Parliamentary Joint Committee on Human Rights?

1. Examine Bills for Acts, and legislative instruments, that come before either House of the Parliament for compatibility with human rights, and to report to both Houses of the Parliament on that issue.

2. Examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue.

3. Inquire into any matter relating to human rights which is referred to it by the Attorney-General, and to report to both Houses of the Parliament on that matter.

When does racial discrimination occur under the Racial Discrimination Act 1975 (Cth)?

When someone is treated less fairly than someone else in a similar situation because of their race, colour, descent, or national or ethnic origin.

Racial discrimination is also deemed to have taken place when a rule or policy appears to treat everyone in the same way but has an unfair effect on more people of a particular race, colour, descent or national or ethnic origin than it does on others.

What discrimination does the Racial Discrimination Act prohibit?

Section 13 - Provision of goods and services - when buying something, applying for credit, using banks, seeking assistance from government departments, lawyers, doctors and hospitals, or attending restaurants, pubs or entertainment venues

Section 15 - Employment - when seeking employment, training, promotion, equal pay or

conditions of employment.

What is the purpose of the Australian Human Rights Commission?

It is a body set up to investigate and advise in relation to matters of human rights concern in Australia.

Where can citizens make a complaint if they have been discriminated against?

If a person believes they have been discriminated

against under the Racial Discrimination Act, they can make a complaint to the Australian Human Rights Commission and begin the conciliation process.

What is the process if a complaint can not be resolved by the Human Rights Commission?

Human Rights Commission is unable to resolve

this complaint, matters can be brought before the Federal Court of Australia, which may make orders as it sees fit, including compensation orders.

What changes are being proposed to Section 18C of the Racial Discrimination Act?

A recent Parliamentary Inquiry recommended that procedural changes occur to deal with complaints, to speed up the process and give the commission the power to knock back vexatious claims, or those with little prospect of success, at an earlier stage.

There's a push within sections of the Government to raise the

threshold by replacing the words 'insult' and 'offend' with a stronger word like 'harass'.

What certain guidelines about in what situations it is against the law to discriminate does the Sex Discrimination Act outline?

Section 14 - In the workplace.

Section 23 - Securing accommodation.

What is the purpose of the Disability Discrimination Act 1992 (Cth) (DDA)?

To ensure freedom from discrimination for people suffering from a disability.

What discrimination does the Disability Discrimination Act 1992 (Cth) (DDA) prohibit?

Section 15 - Employment.

Section 22 - Education.

What is the Magna Carta 1215?

It is often considered the cornerstone of human rights protections in the English-speaking world.

Context of the Magna Carta

In 1215, King John of England was facing much criticism. He was considered by many of the nobles in the kingdom to have violated a number of ancient English laws and customs by which England had been governed.

Following a long struggle against his own barons, he was forced to sign the Magna Carta in 1215, which set out a number of principles that later came to be thought of as human rights.

The Magna Carta established principles of:

1. Right to a trial by a jury of one's peers and not

being held imprisoned without the prospect of

a fair trial.

2. The right of the church to be free from governmental interference.

3. The rights of all free citizens to own and inherit property.

4. Contained provisions that guaranteed protection from excessive and/or arbitrary taxation.

5. It also had a number of provisions forbidding bribery and official misconduct.

What is the the highest form of inquiry into matters of public importance in Australia?

Royal Commission.

What is a Royal Commission?

Are a type of public inquiry by bodies appointed by the executive government to provide advice or to investigate some issue of public importance.

What specific legislation is a Royal Commission established under?

The Royal Commission Act 1902 (Cth) - that confers specific powers of investigation on them.

What are the powers of bodies under the Royal Commission Act 1902

(Cth)?

1. Call and cross-examine witnesses

2. Phone-tapping

3. Providing protection to witnesses and inquiry

members from legal action such as defamation.

What is an example of a Royal Commission?

Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was announced by Prime Minister Malcolm Turnbull in December 2017, following an admission by the banking industry itself that such a step was necessary to restore public confidence in the financial system.

United Nations background

1. Established in 1945

2. 50 Nations

3. Representatives were from Non-government organisations.

4. Established after WWII

5. Created to prohibit the destruction done to the world during the world wars.

United Nations Post-war

1. Promoted human rights for everyone around the world

2. Was the leader of several peacekeeping operations

3. Served as the hub of a massive body of international law

4. Continued dialogue between hostile countries

5. Kept all nations as members, even those at odd with the international community.

6. Acted as a court of world opinion of significant issues.

What is the General Assembly?

1. Acts as the parliament and voting body of the United Nations for all member nations.

2. Each country has one vote.

3. Makes appointments to other bodies.

4. Makes recommendations to the Security Council.

5. Creates the United Nation budget.

6. Decides on the admission of new members.

What is the Secretariat?

1. Made up of the Secretary General and UN staff who carry out the day-to-day work of the United Nations as mandated by the General Assembly.

2. Staff members are recruited internationally and locally.

3. Work in duty stations and on peace keeping missions around the world.

What is the purpose of the Secretary General?

To bring issues or situations threatening the maintenance of peace and security to the attention of other United Nations organs.

What is the International Court of Justice?

1. Is the judicial body of the United Nations.

2. Located in Hague (Netherlands).

3. They settle legal disputes brought to them by nation-states according to the principles of international law.

What is the Security Council?

1. Responsible for the maintenance of international peace and security.

2. Takes the lead in determining an act of aggression or a threat to peace.

3. It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment

or terms of settlement.

4. Have the power to impose sanctions or authorise the use of force to maintain or restore international peace and security.

How many members does the Security Council have?

15 members.

Who are the five permanent members of the Security Council?

The United States, the United Kingdom, China, the Russian Federation and France.

How many non-permanent members of the Security Council are there?

Ten non-permanent members.

How many votes does members have under the United Nations Charter?

One vote.

What does Chapter VII of the UN Charter state the Security Council has power to do?

The UN Security Council can act under Article 42

of this part of the charter to 'take such action

by air, sea or land forces as may be necessary

to maintain or restore international peace and

security'.

What is an example of the Security Council not being able to restore international peace and security?

However, for nearly 50 years after World War II, tension existed between the two most powerful nations (or ideologies) of that era - the United States and the Soviet Union (the largest country of which was Russia).

It prevented the Security Council from exercising its military powers because either the United States or the Soviet Union would veto any Security Council resolution that threatened its interests.

A negative vote by any one of the five permanent members

can veto any of the council's measures or proposals or any changes to the United Nations as a whole. This makes

UN reform very difficult to secure.

What is veto?

A constitutional right to reject a decision or proposal made by a law making body.

What is the Economic and Social Council?

1. Responsible for Economic, Social and Environmental issues.

2. In charge of the implementation of internationally agreed

development goals

3. The central body for reflection, debate and innovative thinking on sustainable development.

What is the Trusteeship Council?

1. Was established to provide international supervision for 11 Trust Territories (such as the Cameroons, New Guinea and Western Samoa, among others) and ensure that adequate steps were taken to prepare the Territories for self government and independence.

2. Stopped operations in 1994.

3. It now only meets as required - by its decision

or the decision of its president, or at the request

of a majority of its members or the General

Assembly or the Security Council.

What is the United Nations Charter?

1. Similar to a constitution

2. Outlines the rights and obligations of members of the United Nations.

What is the purpose of the United Nations Charter?

1. Maintain peace and international security

2. Develop friendly relations between nations

3. Solve international problems of an economic, social, cultural and humanitarian nature.

4. Promote respect for human rights.

What principles should the United Nations follow?

1. The sovereign equality of its members.

2. Peaceful settlement of international disputes

3. Refraining from threatening or use forcing against any nation.

4. Non-intervention in matters within the domestic jurisdiction of any nation.

How can the United Nations Charter be amended?

1. A two-thirds vote in the General Assembly of all member nations.

2. Five permanent members of the Security Council.

When was the United Nations Charter signed?

It was signed by 50 countries on 26 June 1945 and laid out the main functions and structure of this world body.

What is the Universal Declaration of Human Rights (1948)?

This declaration represents basic human rights and protections inherent to every human being and has been endorsed by all countries. Its framework covers a broad range of areas that include civil, political, cultural, economic and solidarity rights.

What is a treaty?

A formalised agreement between two or more nations

about a particular area of mutual interest.

What is an example of an area of mutual interest in a treaty?

1. Trade

2. Prisoner exchanges

3. Human rights

What is a state?

Countries recognised as having legal standing

under international law:

1. They have a defined territory

2. One government

3. Permanent population

4. Must have the ability to enter into relationships recognised by law with other states.

What is a defined territory?

The geographical reach or extent by which the laws apply.

What is one government?

If the government is representative of the permanent population then it would indicate legitimacy in representing the people's interests within the nation.

What is a permanent population?

A population that is linked to a specific piece of territory on a permanent basis.

What is the ability to enter into relationships recognised by law with other states?

Means that the nation has legal capacity but is also recognised as a legitimate nation by other governments when entering into agreements.

What is a convention?

Similar to a treaty but more often on specific matters or issues, and sometimes of a less formal nature.

What is a covenant?

Similar to a convention in effect and use.

What is a multi-lateral treaty?

A formal agreement entered into by more than two nation-states.

What is a bi-lateral treaty?

A formal agreement entered into by two nation-states.

What is the International Covenant International Covenant on Civil and Political Rights (ICCPR)?

1. Came into force in 1976

2. Commits its parties to respect a number of important civil and political rights.

3. These include the rights of an individual to life, freedom of assembly, electoral rights, freedom of religion, freedom of speech, a fair trial and due process.

What is the International Covenant on Economic, Social and Cultural Rights (ICESCR)?

1. Came into effect in 1976

2. Commits its parties to work towards the granting

of economic, social and cultural rights.

3. Labour rights, the right to self-determination,

freedom from discrimination, housing and health, the right to education, and the right to an adequate standard of living.

United Nations Convention on the Rights of the Child (UNCRC)

1. Established in 1989

2. Sets out the civil, political, economic, social, health and cultural rights of children.

What is the definition of a child?

As any human being under the age of 18, unless the age of majority is attained earlier under a country's own legislation.

What are signatories required to do under the United Nations Convention on the Rights of the Child?

1. Provide for separate legal representation for a child

in judicial disputes concerning their care

2. Asks that the child's viewpoint be heard

3. Prohibits capital punishment for children.

What is the International Convention on the Elimination of All Forms of Racial Discrimination 1966?

1. This convention commits parties to the elimination of all forms of racial discrimination.

2. It requires the elimination of racial segregation.

3. Eliminates the criminalisation of incitement of racial hatred.

4. Creations a promotion of understanding and tolerance.

What is the Convention relating to the Status of Refugees 1951?

1. Elaborates on Article 13 of the 1948 Universal Declaration of Human Rights.

2. It recognises the right of persons to seek asylum from persecution in other countries.

3. It defines who is a refugee, and outlines what asylum is and the rights of individuals who are granted asylum.

4. It also details the responsibilities of nations that grant asylum.

Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW)

1. This convention outlines non-discrimination requirements and women's rights.

2. It has an emphasis on political life, representation, and rights to nationality, education, employment and health.

3. It also details women's right to equality in marriage and family life, along with the right to equality before the law.

How does the constitution weaken the power of the federal government in response to human rights issues?

As the constitution does not mention human rights issues and any issue not mentioned could fall under the category of residual powers - held by the states, the federal government's power to make laws with respect to human rights issues could be described as non-existent.

How does the constitution strengthen the power of the federal government in response to human rights issues?

Section 51 (xxix) provides that the federal government has the power to legislate with regards to external affairs.

The High Court of Australia has interpreted this as the power to pass laws that give effect to Australia's obligations under international treaties and conventions.

What are some of the main points from the Preamble of the Convention on the Rights of the Child?

1. Childhood is entitled to assistance and care.

2. To foster the development of a child's personality - they should grow up in a family environment, in an atmosphere of happiness, love and understanding.

3. Children should be prepared to live an individual life in society - in accordance with the ideals in the Charter of the United Nations - particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.

4. A child due to their physical and mental immaturity need special safeguards and care such as appropriate legal protection before as well as after birth.

5. Children across the world living in difficult conditions need special consideration.

6. Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.

7. Recognizing the importance of international cooperation for improving the living conditions of children in every country - in particular in the developing countries.

How many parts does the Convention on the Rights of the Child have?

Three parts.

Part 1 - Contains the substance of the Convention and identifies the rights conferred upon children by the Convention.

Part 2 - Explains the responsibilities of the state parties.

Part 3 - Outlines the process of ratification.

What is the purpose of a Preamble in international law?

The preamble is in essence introductory — but its traditional purpose is to reflect the intentions of the drafters, and to explain the reasons, purpose, object or scope of the instrument, and to recite any facts that may be relevant.

What does Article 2 of the Convention on the Rights of a Child state?

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

What is Article 13 of the Convention on the Rights of the Child?

1. The child shall have the right to freedom of expression.

2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; or

(b) For the protection of national security or of public order, or of public health or morals.

What is Article 19 of the Convention on the Rights of the Child?

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

What is Article 28 of the Convention on the Rights of the Child?

States Parties recognize the right of the child to education.

What is Article 31 of the Convention on the Rights of the Child?

States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.

What can be found in the Preamble of the International Covenant on Civil and Political Rights?

1. Parties have agreed with the obligations of the Covenant as it is in accordance with the principles proclaimed in the Charter of the United Nations - recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

2. Individuals possess inherent dignity.

3. For all humans to be free and enjoy civil and political freedom and freedom from fear and want - it can only be achieved if conditions are created whereby everyone may enjoy their civil and political rights, economic, social and cultural rights.

4. States are obliged under the Charter of the United Nations to promote universal respect and observance of human rights and freedoms.

5. Individuals must uphold their duties to the community they are apart of - this is a responsibility to strive for the promotion and observance of the rights recognized in the Covenant.

How many parts does the International Covenant on Civil and Political Rights contain?

Six parts.

Part 1 - All people have the right to self determination.

Part 2 - Creates an obligation that all parties must legislate to give effect to the provisions of the Covenant.

Part 3 - Contains Article 6-27 which are considered the core provisions of the Covenant.

Part 4 - Establishes the Human Rights Committee

Part 5 - The ICCPR should not be interpreted as interfering with the operations of the United Nations.

Part 6 - Establishes the process for ratification and amendments.

What is Article 6 of the International Covenant on Civil and Political Rights?

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

What is Article 7 of the International Covenant on Civil and Political Rights?

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

What is Article 12 of the International Covenant on Civil and Political Rights?

Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Everyone shall be free to leave any country, including his own.

What is Article 17 of the International Covenant on Civil and Political Rights?

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

What does the Preamble of the International Covenant on Social, Economic and Cultural Rights?

1. Parties have agreed with the obligations of the Covenant as it is in accordance with the principles proclaimed in the Charter of the United Nations - recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

2. Individuals possess inherent dignity.

3. For all humans to be free and enjoy civil and political freedom and freedom from fear and want - it can only be achieved if conditions are created whereby everyone may enjoy their civil and political rights, economic, social and cultural rights.

4. States are obliged under the Charter of the United Nations to promote universal respect and observance of human rights and freedoms.

5. Individuals must uphold their duties to the community they are apart of - this is a responsibility to strive for the promotion and observance of the rights recognized in the Covenant.

How many parts does the International Covenant on Social, Economic and Cultural Rights contain?

Five Parts.

Part 1 - States that all people have the right to self-determination.

Part 2 - These rights should be recognised without discrimination and the States take place to progressively achieve the rights listed in the Covenant.

Part 3 - Lists the economic, social and cultural rights.

Part 4 - Governs the reporting and monitoring of the Covenant.

Part 5 - Concerns the process of ratification and amendments.