Human rights

Human rights

• universal claims to certain freedoms and to certain entitlements which ensure the dignity, equality and respect of every human being.

• are universal, interdependent, indivisible (cannot be ranked in importance/partially upheld) and inalienable (person cannot be divorced from their rights except by law, given there are legal rights, due processes and fair trial)

• first, second, third gen

• political, legal, cultural, economic, social, civil

first generation negative rights

• Constitutionalism limits government

• Prevented from unjust interference in individual
  freedoms

• require constitutional limits to the power of government and rule of law upheld by an independent judiciary

• e.g. Right to life, Freedoms of movement, conscience, speech, association, assembly, and
  livelihood

second generation positive rights

• obliges governments to provide public goods and services that enable the fulfilment of individual rights

• therefore, positive rights expand the role of government

• e.g. UNDHR (1984) - Article 22 of the UDHR states that social rights — such as education — are indispensable to human dignity.

• e.g. Education, healthcare, Employment, pay, conditions and safety

third generation solidarity rights

• preserve cultural identities

• obliges governments to consult with cultural groups and provide resources to uphold their rights and arbitrate between different rights e.g. laws banning hunting in national parks to protect solidarity rights

• The UN Convention on Indigenous Rights (2007) is an example of international law enabling First Nations communities across the world to determine their futures and practise their cultural heritage.

• e.g. Self-determination, Group economic development, Participation in cultural heritage

fourth generation rights

• Obliged to cooperate with other nations’ governments to provide transnational and global protection for the rights of humans as a species (because global assets are beyond the jurisdiction of any one nation)

• UN is often the forum through which these rights emerge and are protected

• UN Framework Convention on Climate Change (1992) and the Convention on Biological Diversity (1992) are examples of international law designed to protect the biosphere as a sustainable habitat for Homo sapiens.

• Healthy biosphere, Participation in cybersphere, Bioethics

conflicting rights

• arbitration required by government

• third gen rights e.g. cultural practices of child marriage and female genital mutilation are in conflict with first gen rights of women and girls, so government must override them

• exempting first nations groups from specific laws can undermine the first gen right to equality - e.g. hunting of endangered dugong is lawful for some Western Australian First Nations peoples, but unlawful for everyone else.

methods to protect rights

to ensure security and flexibility, human rights may be protected by

• superior laws — constitutions;

• ordinary laws — statutes and common law;

• international laws — UN treaties, covenants
  and protocols

• bill of rights- either constitutional or statutory

Constitution/ constitutional bill of rights

• superior law made by unique processes

• US Bill of Rights carry emphasis on civil, political and social rights, limiting the power of government compared with the narrower and more limited rights scattered in the Australian Constitution, which impose burdens on the CW instead of the states (except political communication)

Advantages of constitutions/ constitutional bill of rights

• Very secure rights protection

• Exceptional mechanisms for amending constitutions’ place rights beyond the reach of legislatures and executives- judicial supremacy of constitutional courts is a reliable protection because courts are independent

• can be made flexible to changing social values - implied rights

• encourages right awareness by placing substantial importance (rights included in fundamental law)

• Rights may be specific and implied

• Binds all three branches of government

Disadvantages of constitutions/ constitutional bill of rights

• Least flexible - e.g. it is challenging to add and
  remove outdated rights

• Elevates judiciary as the dominant institution in rights protection.

• Judges may create rights ‘by implication’ through interpretations of constitutions without any accountability

• Courts can strike down laws inconsistent with constitutional rights; decisions are final.

• Criticism: lacks democratic accountability; unelected judges override elected legislatures.

• Undermine the indivisibility of rights- excluding some rights from constitutional level may lead lawmakers, governors and people to believe they are not equally important

• example (lack of flexibility - second amendment)

Example (lack of flexibility - second amendment)

• Constitutional right: protects the individual right to “keep and bear arms.”

• Interpreted expansively in District of Columbia v Heller (2008): recognised gun ownership for personal self-defence.

• Strongly defended by pressure groups (e.g. NRA), reinforcing entrenched gun culture.

• Limits legislative reform: constitutional protection makes regulation politically and legally difficult.

• Consequence: widespread gun access contributes to significant preventable deaths.

• Illustrates tension between democratic law-making (Congress) and judicial interpretation (Supreme Court).

Statutes/ Statutory bill of rights

• ordinary law made by parliaments

• Justification: democratic legitimacy — elected bodies represent the people and are unlikely to oppress them.

• Central to British and Australian systems; prioritises parliamentary sovereignty.

• Avoids judicial supremacy by leaving ultimate authority with legislatures.

• More flexible than constitutional rights, as statutes can be amended more easily.

Statutory Bills of Rights

• Ordinary legislation focused on protecting rights.

• Establish mechanisms for preventing abuses and providing remedies.

• In Australia, operate at state/territory level, not federally.

• Incorporate international law (ICCPR) into domestic law.

Aus v US

• Both use statutes to protect rights, but Australia relies on them more heavily.

• Australia:

  • Extensive anti-discrimination laws and rights-based legislation (e.g. Migration Act 1958).

  • No national bill of rights; rights protected through specific statutes.

  • State/territory statutory bills of rights (VIC, ACT, QLD) incorporate ICCPR rights.

  • AHRC

• US:

  • Combines statutory rights with entrenched constitutional rights.

  • Key example: Civil Rights Act 1964 (ended segregation; influenced by civil rights movement).

AHRC

• Established by the Australian Human Rights Commission Act 1986.

• Does not directly protect rights; instead:

  • Educates on human rights.

  • Investigates complaints.

  • Resolves disputes through conciliation.

• Unresolved cases may proceed to the Federal Court.

• Supports enforcement of anti-discrimination laws via specialist commissioners.

• But ruled in Brandy v Human Rights and Equal Opportunity Commissioner, ruled that it was not a chapter 3 court and had no judicial power

Advantages

• Secure protection within ordinary law: statutes are enforceable and sit above common law, applying universally across jurisdictions.

• Upholds parliamentary sovereignty: ultimate authority over rights remains with elected legislatures, avoiding judicial supremacy.

• Democratically accountable: rights protection reflects the will of the people; governments can be removed if rights are infringed.

• Responsive and adaptable: legislation can be amended, repealed, or expanded to reflect evolving societal values.

• Flexible balancing of rights: parliament can prioritise or limit rights where necessary (e.g. Northern Territory Intervention).

• Institutional safeguards: parliamentary processes (e.g. Parliamentary Joint Committee on Human Rights) scrutinise legislation for rights compatibility.

• Controlled judicial role: courts interpret and review statutes, but parliament can override interpretations or limit judicial power.

• Dialogue mechanism: courts may highlight rights issues (e.g. declarations of incompatibility), prompting parliamentary response while preserving legislative supremacy.

• Broad enforcement: binds the executive (implementation) and courts (interpretation), ensuring practical operation of rights protections.

• Encourages civic engagement: statutory rights often emerge from public pressure and activism, strengthening democratic participation.

Disadvantages

• Rights are more easily changed or removed

• A democratic majority may wish to persecute an unpopular minority. e.g. Indigenous Australians in
  the 19th and early to mid-20th century

• Rights may become politically contested

• Executive influence in Westminster systems undermines parliament’s capacity to protect rights; recall decline of parliament thesis — the typical situation in Australia

• Non-binding on parliament

Common law

• ordinary law made by judges in courts

Advantages

• Flexible — courts develop rights on a case by case basis

• Courts use rules of interpretation that protect rights e.g. principle of legality. See: Background information: Does Australia have a “common law bill of rights”?

• Especially appropriate for legal rights

Disadvantages

• Relatively insecure

• Parliament may override common law rights

• Executive influence in Westminster systems undermines parliament’s capacity to protect rights

• Non-binding on parliament

International law courts

• the International Court of Justice, which is one of the six bodies of the UN. It mostly
  settles disputes between nations. These disputes do not often involve human
  rights issues, but they may feature in some instances; and

• the International Criminal Court (ICC), created through the Rome Statute. The
  ICC focusses on human rights and has achieved convictions of former national
  leaders found guilty of human rights abuses and crimes against humanity.

Advantages

• Provides a framework for rights protection- e.g. Australian state and territory based bills of rights contain 20 civil rights adopted from the UN International Covenant on Civil and Political Rights (ICCPR)

• Enables courts in one country to apply the human rights jurisprudence of courts in other countries — that is, persuasive precedents

• Agreeing to Optional Protocols gives individuals within a country the right to communicate their complaints to the UNHCR. The country’s courts may then apply international law in human rights case.

Disadvantages

• Not real ‘law’ — there is no sovereign international political and legal system capable of making law

• Not legally enforceable in a sovereign country unless agreed by its government and ratified by its legislature

• Ignored by many autocratic countries

• example

  • Australia rejects UN criticism of its offshore detention policies. Together with the
    exemption of the Refugee Convention 1951 from scrutiny by the PJCHR, it illustrates the weakness of international law when a government is determined to sidestep its international human rights obligations.

  • The system of Special Rapporteurs has led to investigations, criticisms and public reports into Australia’s asylum and refugee policies by the UN High Commissioner for Refugees (UNHCR). The UNHCR is the agency focused on the rights of those fleeing persecution and seeking refuge in other countries.

Constitutional rights - difference between US and Aus

• Historical context shapes approach

  • US: Rights are central because independence was won through war; strong focus on protecting individual liberties.

  • Australia: Federation achieved peacefully; Constitution focused on uniting colonies, not on listing rights.

• Presence of a Bill of Rights

  • US: Has a Bill of Rights (first 10 amendments) protecting civil, political, and legal rights.

  • Australia: No formal Bill of Rights; only a few rights are written into the Constitution.

• Written (express) rights: Clearly stated in the Constitution (more common in the US).

• Implied rights: Interpreted by courts based on constitutional wording (important in Australia).

US

• United States

  • Broad protection of civil, political, and legal rights (e.g. freedom of speech, religion, fair trial).

  • Rights are explicitly written (entrenched) in the Constitution.

  • Constitutional rights limit all levels of government (federal and state)

Australia

• Australia

  • Limited number of economic and legal rights in the Constitution.

  • Most constitutional rights only restrict the Commonwealth (federal government).

  • Exception: Implied freedom of political communication applies to all levels of government.

  • Some rights are implied by the High Court, including:

    • Implied freedom of political communication

    • Implied right to legal representation

Australian constitutional rights - specified and implied

• Section 41

• Section 51 (xxix)

• Section 80

• Section 116

• Section 117

• Implied by Sections 7 and 24 of the Constitution

Section 41

• Right to vote

  • The right to vote in Commonwealth elections if — at federation — persons had the right to vote in state elections.

  • Transition to ensure Western Australian and South Australian women's voting rights applied after federation in 1901. Other states did not allow women to vote in 1901.

  • A spent section — no longer relevant.

Section 51 (xxix)

• Right to just compensation for the compulsory acquisition of property by the Commonwealth

  • Protects property rights.

  • The Commonwealth may seize private property for government purposes, but must compensate the owner.

  • Applies to all forms of property

  • Example: land, patents, intellectual property etc.

  • Does not apply to state governments, but they have similar limitations in their constitutions.

Section 80

• Right to trial by jury for federal indictable offences

  • Persons accused of federal crimes such as importing drugs, immigration offences such as people smuggling, avoiding excise taxes etc. are entitled to a jury trial.

  • Does not apply to state or territory crimes.

Section 116

• Right to freedom of religion

  • Prevents the Commonwealth from establishing an official — or state — religion.

  • Does not guarantee religious freedom in the broad sense.

  • Note: Protestant Christianity is the official religion of the UK and Anglicanism is the state religion of England. There can be no official religion in Australia because of Section 116.

Section 117

• Freedom from discrimination based on state residence

  • The Commonwealth cannot discriminate against people based on where they live in Australia.

  • Territory laws can be excluded from this right — clarification awaits a future High Court case.

Implied by Sections 7 and 24 of the Constitution

• Right to freedom of political communication in Australia (1992) (the ACTV case):

  • Discover in the High Court held Sections 7 and 24 of the Constitution create a representative democracy in Australia because they require each house of parliament be “chosen by the people”.

  • Representative democracy carries the implication that electors must be able to have political opinions and arguments so they can cast an informed vote.

  • See: Case studies: Discovering an implied right: The implied freedom of political communication.

State and territory bills of rights

• follow the practice of the British Human Rights Act 1988

• respect the British parliamentarianism principle (parliament not judges should be sovereign over rights)

• permits courts to declare laws/policies inconsistent with human rights using a ‘declaration of incompatibility’, requiring the Attorney General to respond to the court declaration in parliament,

• but courts cannot strike them down - constrained parliamentarianism- courts can check but not override parliament in human rights matters

Relevant state and territory laws are the:

• Human Rights Act 2004 (ACT);

• Charter of Human Rights and Responsibilities Act 2006 (VIC); and

• Human Rights Act 2019 (QLD)

Purpose

• prevention rather than remediation of human rights abuses

• construction to create a human rights culture within the political and legal system rather than provide an avenue for legal action in human rights matters

Legislatures

• Requirements imposed by bill of rights

• Bills found to be incompatible with human rights must be explained by the Attorney-General before parliament can pass them

• Attorney-General must respond in parliament to a court issued ‘declaration of incompatibility’

• Public servants must consider human rights when formulating policies

• Police must consider human rights

• Explanation

  • Imposes a duty on Cabinet to consider human rights in government bills

  • Imposes a duty on ministers to consider human rights when exercising ministerial discretion

  • Makes human rights a priority in public service decisions

Judiciary

• Requirements imposed by bill of rights

  • Must interpret statutes in a manner consistent with human rights

  • Supreme Court may issue ‘declarations of incompatibility’

• Explanation

  • Bound by the bill of rights when interpreting statutes

  • Limited to issuing ‘declarations of incompatibility’

  • Cannot invalidate laws on human rights grounds

  • Cannot hear human rights complaints unless they are part of another legal action

Human Rights Commission

• Requirements imposed by bill of rights

  • Established by the bills of rights

  • Reviews laws

  • Advises Attorney-General

  • Educates public servants

  • Hears human rights complaints

  • Use conciliation – a form of alternative dispute resolution (ADR) – to resolve complaints

• Explanation

  • Acts of Parliament establish human rights commissions

  • Independent statutory agencies

  • Employ commissioners to resolve human rights complaints

  • Employ human rights experts to advise the government and parliament about human rights

Individuals

• Requirements imposed by bill of rights

  • Bring complaints to the human rights commission

  • Attempt resolution by conciliation aided by the human rights commission

  • Bring a human rights case to court as a last resort

• Explanation

  • ADR resolves human rights issues without costly legal action

  • Court action cannot use a bill of rights alone – it must be part of another action – discourages the use of courts to resolve complaints

Advantages of State and Territory Bills of Rights

• strong focus on prevention

• positive influence on the relationship between government and citizens

  • improvements in government service delivery;

• the high number of disputes settled out of court using the bills of rights as a guide; fostering a positive human rights culture;

• increased awareness of human rights amongst public servants and the public; government agencies include human rights training for their personnel; and

• audits by the Human Rights Commission have led to improvements. For example, there has been an improvement in the treatment of women prisoners in Victorian jails.

Disadvantages

• Critics of the Victorian, ACT and Queensland bills of rights use the same arguments that apply
  to all statutory and constitutional bills of rights.

• bills or charters give too much power to judges. Judges are unaccountable officials. The fact that the state and territory bills of rights are based on the principle of parliamentarianism does not satisfy some critics.

• rebuttal: weakening the courts’ role weakens the bills of rights themselves. They argue that courts have a legitimate role in the accountability of the parliament and government through the process of judicial review. Excluding courts from robustly
  reviewing human rights ignores their legitimate
  role in accountability.

• The bills of rights do not provide remedies; they are focused on prevention. They are therefore
  of limited use for someone seeking redress and compensation for a violation of human rights.
  Another limitation of these bills of rights is that
  no one can bring an action to court using the
  bills of rights alone. They must ‘piggyback’ their
  human rights complaint on to another dispute.
  A plaintiff can only make a human rights case
  when they bring another action to court.