human rights

what are human rights

the moral and legal entitlements that recognise the value of each person, regardless of background → inherent, inalienable and universal

what are the three types of human rights

1. first generation - civil and political rights

2. second generation - economic, cultural and social rights

3. third generation - rights that are international in scope and can only be addressed by global cooperation

what is the UDHR/how does it protect human rights?

• 1948

• for the first time, set out a catalogue of fundamental human rights → aspiration statements but not binding → provides a standard for individual countries to legislate to

• served as the foundation of the ICCPR and ICESCR 

what is the international covenant on civil and political rights (ICCPR)

• established first generation rights

• also created the human rights committee which has the power to hear complaints brought by one country against another, hear complaints brought by individuals against their own government

• eg. Toonen v Australia → Tasmania has laws against homosexual activity, however, Toonen argued that this was a violation of his right to privacy and that is discriminates on the basis of sexual preference and therefore Australia was found to be in breach of its obligation under the ICCPR so the Aus govt passed a law to override Tasmanian law

what is the international covenant on economic, social and cultural rights (ICESCR)

• establishes second generation rights

• through periodic reviews of countries, it makes recommendations of how they can improve their compliance with the ICESCR and therefore better protect human rights eg. found that Australia can incorporate its provisions into domestic law better

what is state sovereignty

• the ultimate law making power of a state to make and enforce laws over its own population free from external interference

• this means the country must pass domestic legislation in order for the human right to be recognised in that specific country

• eg. australia has ratified the CEDAW through the SDA 1984, meanwhile America is a signatory yet has not ratified it

what is the united nations

• igo made up of 193 member states

• responsibility to protect (r2p) doctrine, which aims to make protection of human rights an integral part of the responsiblity that goes with state sovereignty → states that member states have the responsibility to protect its citizens from war crimes, genocide etc. and if they fail to do so, the international community must take action to prevent harm → seen in 2011 where the security council voted to act against libya

• however, this is subject to veto power by the perm 5 of the security council

how to igos protect/enforce human rights

• increase nation cooperation in human rights issues

• greater universality of laws by encouraging member states to pass laws to protect and enforce human rights

• jurisdictional issues are limited

• eg. un

international court of justice

• judicial organ of the UN

• requires the consent of state parties to hear matters, limiting power/jurisdiction

• unable to hear cases brought by individual people and little power of enforcement

international criminal court

• an international body established by the Rome Statute → protects individuals by prosecuting individuals for the most serious international crimes which constitute grave breaches to human rights

• seen in the successful prosecution of thomas lubunga (2012) → accused of physical and sexual exploitation of children in armed conflict in the DRC → however, first case to be heard by the ICC (10 years after establishment)

• however, the court is limited by state sovereignty → based on the willingness and cooperation of the nation state

• reactive not proactive

human rights committee

• assesses member state compliance with the ICCPR and can hear complaints by both states and individuals citizens about a member’s performance

• a quasi-judicial body, where a group of human rights experts will hear a complaint brought against a state and make a ruling → decisions are not enforceable

• Toonen v Australia 1994

ngos

• an organisation independent from the government

• they have no authority to enforce human rights and are only able to promote

• play a role in “naming and shaming” human rights violators - can be effective in getting governments to change their behaviour

• eg. amnesty international - investigates/publicise abuses via reports and media and advocating to governments and other powerful entities to change laws and policies

the media

• report human rights abuses to the public

• can act as a conscience trigger for the rest of the world → cause people to demand action of their government

• however, sometimes news companies are censored by the government

• social media can also be effective in promoting HR → allows for stories to spread instantly and accessed more easily

incorporation of human rights into domestic law

• australia operates under a dualist system and therefore simply signing a treaty does not make it enforceable within australia

• the rights and obligations of the treaty will need to be incorportated into Australia by passing domestic legislation → can be fully or partial

• CEDAW → SDA

constitution

• lays down the system of australian government which human rights are recognised → separation and division of power

• source of SOME human rights

• limited as a protector of rights as most australian human rights law is found in other sources

• however, rights in the constitution cannot be taken away

explicit rights

• rights that are written in the constitution → right to freedom

implied rights

those rights that are interpreted from the constitution to make sure its proper functioning

lange v ABC 1997 → held that the Constitution contains an implied right to freedom of political communication, a type of freedom of speech → have to have free speech in order for Australia’s political system as established in the Constitution to function effectively

separation of powers

• separation of powers between the legislature, executive and the judiciary → ensures that power is not held in any one arm of the government

• checks and balances ensure accountability allowing for better protection of human rights

• NBNB v Minister for Immigration and Border Protection (2014) → 5 asylum seekers who were found to be genuine refugees from Afghanistan → the previous Labour Immigration Minister used of the Migration Act to deny them protection visas (executive and legislative branch) → then the high court(judiciary) overruled the decision because they were denied procedural fairness and it went against our international obligations to not detain people indefinitely

division of powers

• legislative power is divided between commonwealth and state parliaments

• Toonen v Australia 1994

statute law

• statute law is the main way that human rights are protected in Australia

• there are lots of very complicated laws that are too difficult for most Australians to find or understand

• however, unlike the constitution, statute laws can be “amended” to stop recognising human rights eg. during the NT intervention, the RDA was suspended so the government could discriminate against aboriginal people

common law

• case by case basis

• created through judgements handed out by judges

• interpretations of statutes or interpretations of the law to make sure we’re consistent with our international obligations

• eg. minister of state for immigration and ethnic affairs v ah hin teoh 1995

• mr teoh, a malaysian citizen with family and chilren in Australia was to be deported from australia on the basis of his conviction for heroin importation and possession, however, in line with the BIOTC, the High Court ruled that he should remain in the country

• however, common law decisions can be overriden by statute law at any time

australian human rights commission

• an independent national body established to deal with australia’s human rights legislation

• can investigate and conciliate many kinds of discrimination

• can hear complaints on many other human rights breaches in Australian law

• brown v immigration department (2012) → a woman was held in immigration detention with men which was against the ICCPR, the AHRC recommended that the government apologise and give her compensation but the government said no

• shows the limited enforceability of its decisions

high court

• has the power to set binding precedents

• overturn legislation/decisions incompatible with the constitution and Australia’s international obligations

• Minister of state of immigration and ethnic affairs v ah hin teoh (1995)

charter of rights

• a list of rights in one single law or in the constitution

• every other advanced country has one but australia does not have one, however, victoria and act have adopted state-based charters of rights (statutory)

arguments for a charter of rights

• extrememly high community support → 87% of people surveyed said they were pro charter of rights

• if it is enacted into statute law, it may be changed to reflect the changing ethical and moral standards

• there continue to be breaches of human rights, for example, the mistreatment of kids in juvenile justice centres in the northern territory (Don Dale)

arguments against a charter of rights

• 64% of those surveyed believe that our existing human rights protections are “adequate" → many argue that no better human rights protections are guaranteed

• judges would have more power to decide on human rights issues → but judges are not elected, which would mena that a lot of power would be moved from the elected parliament to unelected judges

what is human trafficking

the recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat of force or use of force or other forms of coercion, of abduction, of fraud, or deception

effectiveness of the palermo protocol

• first international definition of trafficking → provides a clear and comprehensive definition → creates a universal legal standard for independent nations to adhere and legislate to

• widespread adoption → ratified by 163 states, making it one of the msot widely accepted international legal instruments against trafficking

ineffectiveness of the palermo protocol

• enforcement of the palermo protocol remains up to each member state

• while it was found by the Trafficking In Persons Report 2024, 92% of countries have passed laws addressing major forms of trafficking, 20 countries are still not part of the Palermo Protocol → the biggest trafficking countries, meaning that enforcement and protection of human rights are limited in these countries

australian legal responses - statute

• “slavery, servitude and sexual servitude” were made illegal at a federal level (section 270 of the criminal code) 1999

• the specific crime of HT was added to the criminal code (section 271 → 12 years maximum for trafficking, 25 years max for trafficking children) 2005

• crimes legislation amendment (slavery, slavery-like condition, people trafficking) act 2013 → criminalisation but prosecutions and convictions remain low and that the penalties do not reflect community values, partially due to the view that sex workers are partially to blame

• modern slavery act 2018 → businesses are required to write a report every year about slavery anywhere in their supply chain

international non legal responses - ngos

• walk free foundation → created the global slavery index → provides an estimate of modern slavery for 160 countries → holds them accountable, assesses government reponses and mobilise change

media - slavery

• Four Corner’s “Slavery Away” (2015)

• exposed labour slavery in Australia and companies such as woolies and coles get away with → modern slavery represents a signficiant reputational risk to businesses

• shed light on slavery issues within supply chains of production, demonstrating how some companies indirectly support breaches of human rights

• media coverage such as this led to the modern slavery act 2018 → requires businsses to write a report every year about any slavery within their supply chains