Y12 Legal Studies Trials Finalised

Human Rights

Inalienable: can’t be taken away except in specific legal circumstances (e.g. imprisonment following due process)

Universal: applying to all people regardless of race, gender, religion, or background

Human dignity: the inherent worth of every person, which forms basis of human rights

Equality: all people are entitled to the same rights regardless

Non-discrimination: rights must be applied and protected equally, without bias based on race, gender, religion etc.

Interdependency: the realisation of one right often relies on the fulfilment of others

Indivisibility: all human rights have equal status and importance

Responsibilities: all have a duty to respect, protect and fulfill

International Criminal Court

Role: permanent court established by the Rome Statute (1998) to prosecute individuals for genocide, war crimes, crimes against humanity, and aggression when national courts are unwilling and unable to act

Case 1: Prosecutor v Thomas Lubanga Dyilo (2012) → first conviction for conscription of child soldiers

Case 2: Prosecutor v Germain Katanga (2014) → conviction for war crimes including attacks on civilians in the DRS

International Court of Justice

Role: principal judicial organ of the UN, settles disputes between states and gives advisory opinions on international law

Case 1: Bosnia v Herzegovina v Serbia and Montenegro (2007) → Serbia failed to prevent genocide at Srebrenica

Case 2: Australia v Japan (2014) → ICJ ruled Japan’s whaling program was not for scientific purposes and breached the International Convention for the Regulation of Whaling

European Court of Human Rights (ECHR)

Role: regional court enforcing the European Convention on Human Rights, binding on Court of Europe members; individuals can bring complaints against states

Case 1: Bulgaria v Velkov (2020) → Violation of Article 6 (right to fair trial) where someone convicted of robbery couldn’t question key prosecution witnesses whose statements were not used against him

Case 2: Hirst v United Kingdom (No.2) (2005) → blanket ban on prisoner voting breached Article 3 of Protocol No. 1

UN Human Rights Committee (HRC)

Role: monitors implementation of the International Covenant on Civil and Political Human Rights (ICCPR)

Case 1: Toonen v Australia (1994) → led to decriminalisation of homosexuality in Tasmania

Case 2: Faurisson v France (1996) → upheld French Holocaust denial laws as consistent with ICCPR restrictions on hate speech

International Criminal Tribunal for the Former Yugoslavia (ICTY)

Role: established by UNSC to prosecute individuals responsible for serious violations of international humanitarian law in the Balkans (1990s)

Case 1: Prosecutor v Roadovan Karadzic (2016) → life sentence for genocide and war crimes

Case 2: Prosecutor v Ratko Mladic (2017) → life sentence for genocide and crimes against humanity

International Criminal Tribunal for Rwanda (ICTR)

Role: established b UNSC in 1994 to prosecute those responsible for genocide and other serious violations of international humanitarian law in Rwanda

Case 1: Prosecutor v Jean Kambanda (1998) → life imprisonment for genocide; the first head of government convicted

Case 2: Prosecutor v Akayesu (1998) → first conviction recognising rape as a form of genocide

Universal suffrage

Universal Suffrage: the right of all adult citizens to vote in free and fair elections without discrimination

History: initially limited by property, gender and race requirements, expanded progressively e.g. women’s suffrage in Australia (1902 federall, though Indigenous Australians excluded until 1962 federally)

Human Rights law developments:

International: Article 21, UDHR → “everyone has the right to take part in the government of his country”; Article 25, ICCPR → legally binding right to vote, enforceable through UNHRC

Australia: Commonwealth Electoral Act 1918 (Cth) amended to remove racial exclusions, Roach v Electoral Commissioner (2007) confirmed limits on blanket prisoner voting bans

Universal suffrage

Universal Education: the right to free and compulsory education and accessible secondary/higher education

History: Mass public education emerged in 19th century; seen as essential to equality and economic participation

Human Rights law developments:

International: Article 26, UDHR → “everyone has a right to education”, Article 13, ICESCR → recognises right to free primary education monitored by the committee for the covenant

Australia: Public education systems established across all states; anti-discrimination laws protect equal access (e.g Disability Discrimination Act 1992 (Cth))

Abolition of slavery

Abolition of slavery: freedom from slavery, servitude, and forced labour

History: Abolition movements in 18th and 19th centuries i.e. UK Slavery Abolition Act 1833, US Civil War ending legal slavery). Recognition that slavery in all forms is incompatible with human dignity

Human Rights law developments:

International: Article 4, UDHR → “no one shall be held in slavery”, non-binding but sets moral benchmark, Slavery Convention (1926) → legally binding abolishing treaty adopted under league of nations, amended under UN, Supplementary Convention on the Abolition of Slavery (1956) → expanded the 1926 Convention to cover practises similar to slavery, such as debt bondage

Australia: Criminal Code Act 1995 (Cth) → Part 2.3 criminalises slavery, Modern Slavery Act 2018 (Cth) → requires large companies to report annually on actions taken to address modern slavery risks

Trade unionism & labour rights

Trade unionism and labour rights: protects workers’ rights to form and join trade unions, collectively bargain & strike

History: emerged during Industrial Revolution in the 19th century when poor working conditions, long hours, and low wages led to organised labour movements

Human Rights law developments:

International: Article 23, UDHR (1948) → everyone has the right to work in just conditions, ILO Convention No. 87 (1948) → freedom of association and protection of the right to organise, ILO Convention No. 98 (1948) → right to organise and collective bargaining

Australia: Fair Work Act 2009 (Cth) → Protects workplace rights, union activity etc., Australian Council of Trade Unions v Commonwealth (1945) → confirmed the right of unions to exist and represent workers

Self-determination

Self-determination: the right of people to determine their own political status and to pursue their economic, social, and cultural development

History: gained prominence after WWI but became central post-WWII with the UN Charter (1945) and global decolonisation. Also applied to indigenous rights movements globally

Human Rights law developments:

International: Article 1 ICCPR (1966) and ICESCR (1966) → people have the right to freely determine their political status and pursue development, UN Declaration of Rights of Indigenous Peoples (2007) → strengthens indigenous self-determination rights

Australia: Mabo v Queensland 2 (1992) → recognised native title overturning terra-nullius, Ongoing constitutional reform debate (e.g Indigenous Voice to Parliament)

Environmental rights

Environmental rights: the right to a safe, clean and sustainable environment, recognising that environmental damage directly impacts human survival, health and dignity

History: emerged in the late 20th century with the growth of the environmental/justice movement. UN resolutions and ecocide as an international crime alongside genocide and crimes against humanity

Human Rights law developments:

International law: UN general assembly resolution 76/300 (2022) → recognises human right to clean environment, Stockholm Declaration (1972) → first major global recognition of environmental protection as integral to human wellbeing, Ecocide amendment → fifth core international crime

Australia: Tuvalu advocacy at COP conferences → argues that climate change threatens its very statehood and its citizens’ human rights, Environmental Protection and Biodiversity Conversation Act 199 (Cth) → provides framework for environmental protection

Peace rights

Peace rights: the right of all peoples to live in peace and security, free from war, armed conflict and violence

History: recognised after the devastation of WWII, reinforced by Cold War disarmament campaigns and modern anti-war movements

Human Rights law developments:

International: UN Charter (1945) Article 1 → purposes of UN include maintaining peace and security, UN Declaration on the Right of Peoples to Peace (1984) → affirms that the promotion of peace is a human obligation

Australia: Australia’s participation in UN peacekeeping operations i.e. East Timor 1999 and Solomon Island & Ratification of disarmament treaties like the Treaty on the Non-Proliferation of Nuclear Weapons (1973)

NGOs promoting human rights

Roles include:

• Pressure & lobby

• Raising awareness

• Monitoring & reporting

• Direct assistance

Contemporary Examples

Amnesty International → Global death penalty

• Role: campaigns for a worldwide moratorium on executions and the abolition of the death penalty

• Example: pressured countries like Malaysia to review capital punishment laws; influenced the UNGA to adopt resolutions calling for a moratorium

Human Right Watch - Refugees and asylum seekers rights

• Role: publishes investigative reports on conditions in detention centres

• Example: 2023 reports on Australia’s offshore processing in Nauru and Papua New Guinea increased domestic and international pressure for reform

Environmental rights and climate justice

• Role: uses direct action and media campaigns to highlight environmental destruction as a human rights issue

• Example: ongoing campaigns against deep-sea mining and fossil fuel expansion, lobbying for recognition of ecocide as an international crime

State sovereignty assists/impedes human rights

State sovereignty: The principle that states have supreme authority within their borders to govern without external interference.

• Enshrined in Article 2(1) & 2(7) of the UN Charter (1945).

• Can assist human rights (by enabling states to implement protections) or impede them (by shielding abuses from international intervention).

Legal bodies that impede

• Responsibility to Protect (R2P) → Endorsed by UN in 2005; allows intervention when states fail to protect populations from genocide, war crimes, ethnic cleansing, crimes against humanity (e.g. Libya intervention 2011).

• International courts & tribunals → ICC prosecutions (e.g. Prosecutor v Thomas Lubanga Dyilo), ICTY/ICTR convictions override domestic immunity.

• Sanctions & resolutions → UNSC can impose binding measures (e.g. sanctions on South Sudan leaders for human rights abuses).

In favour of Charter of rights

Ensure accessibility

Align Australia with international community

Consistent protection

Stronger accountability

Public awareness

Not in favour of Charter of rights

Parliamentary sovereignty

Existing protections

Judicial activism concerns

Flexibility

Potential vagueness

How does Australian constitution protect human rights

Expressed rights: directly stated

• Right to vote → Section 41 of the constitution

  • R v Roach (2007), where the High Court held that those serving a prison sentence of less than 3 years have electoral rights

• Freedom of religion → Section 116

  • Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943), where HCA breached this by banning Jehovah’s Witnesses during WWII

Implicit rights: not explicitly stated

• Freedom of political communication

  • Lange v ABC (1997), where the HCA held that media have the right to free political communication

• Right to vote as a part of representative government

  • Rowe v Electoral Commissioner (2010), where HCA considered whether changes to the Commonwealth Electoral Act 1918 (Cth) breached the constitutional requirement for representative government

ICC effectiveness

International Criminal Court (ICC) - Established by the Rome Statute (1998) to prosecute individuals for genocide, war crimes, crimes against humanity, and aggression

Example: Prosecutor v Thomas Lubanga Dyilo (2012) - First conviction by ICC; Lubanga found guilty of conscripting child soldiers (demonstrated ICC’s role in upholding humanitarian law)

Effectiveness: sets global precedent and deters future violations; however limited by lack of universal jurisdiction and non-cooperation from some states (e.g. US, China)

Article 4 of The Universal Declaration of Human Rights → against slavery

ICJ effectiveness

International Court of Justice (ICJ) - Principal judicial organ of the UN; settles disputes between states and gives advisory opinions

Example: Bosnia and Herzegovina v Serbia and Montenegro (2007) - ICJ ruled Serbia failed to prevent genocide at Srebrenica, reaffirming the prohibition of genocide under international law

Effectiveness: strengthens norms; limited enforceability as it relies on state compliance and UNSC backing

Article of 2.7 UDHR (1945) & Treaty of Westphalia (1648) → foundational treaty of the UN; emphasizes state sovereignty

ICTY effectiveness

International Criminal Tribunal for the Former Yugoslavia (ICTY) - Prosecutes war crimes committed during conflicts in the Balkans in the 1990s

Example: Convictions of Radovan Karadzic and Ratkop Mladic for genocide and crimes against humanity (2017 and 2016, respectively)

Effectiveness: Delivered justice for victims, but criticised for slow trials and limited deterrence

ICTR effectiveness

International Criminal Tribunal for Rwanda (ICTR) - Set up in 1994 to prosecute those responsible for genocide and other serious violations of international humanitarian law

Example: Prosecutor v Jean Kambanda (1998) plead guilty to genocide (former PM)

Effectiveness: provides binding judgments; compliance varies between states

ECHR effectiveness

European Court of Human Rights (ECHR) - Enforces the European Convention on Human Rights for Council of Europe member states

Example: Bulgaria v Velkov (2020), where court found that Bulgaria violated Article 6 (right to fair trial) of the European Convention

Effectiveness: Provides binding judgements; compliance varies between states

Council of Europe

regional IGO founded in 1949 to promote democracy, human rights, and the rule of law in Europe with 46 countries setting out the legal framework for the ECHR (1950)

Social crime prevention

Strategies addressing underlying social factors (i.e. education, employment, family support, drug/alcohol programs) to reduce criminal behaviour i.e. youth mentoring programs

Situational crime prevention

Strategies aimed at making it more difficult to commit crime (i.e. target hardening, surveillance, lighting, locks, security cameras) i.e. CCTV in public spaces

What do police need warrants for?

To legally search premises, vehicles, or personal property without consent

To seize evidence related to a crime

To arrest a person in certain circumstances

Issued by: Magistrate or judge; must show reasonable grounds & protects individual rights under LEPRA 2002 (NSW)

Retribution

punishment philosophy on punishment where it matches the severity of the crime

Extradition

the legal process by which one country formally surrenders a suspected or convicted person to another country to face criminal charges or serve a sentence.

Deportation laws

non-citizens can be deported if convicted of certain crimes and crimes attracting 12+ months imprisonment

What court does a police prosecutor present a case?

Local court for summary offences and committal hearings

DPP in higher courts though

Features of an adversary system (Australia)

• Two opposing parties present their case 

• Strict rules of evidence and procedure 

• Judge acts as neutral arbiter 

• Reliance on legal representation

Features of an inquisitorial system (france)

• Judge actively investigates facts and questions witnesses

• Less reliance on legal representation

• Less emphasis on procedural rules

• Aim is to find the truth rather than “win” a case

Legal aid

Government-funded service providing legal advice to those who cannot afford it; means, merit and jurisdiction tests apply including financial eligibility, reasonable prospect of success, jurisdiction

Rights of a child when arrested

• Must be told reason for arrest, right to have a responsible adult present, cannot be interviewed without a support person, right to remain silent, must be kept separate from adults in custody, preference for diversionary measures