legal unit 2 aos 3

human rights

human right

Fundamental normative rules about what is allowed or owed to people, according to a legal system or ethical convention regardless of race, nationality, religion, gender etc.

Universal Declaration of Human Rights

Document created by the UN in 1984 that sets out the common enetitlements that should be afforded to all people across all nations

→ International treaty

a legally binding international agreement between two or more parties

→ International declaration

non-binding agreement between countries, setting out aspirations that are agreed upon.

→ Ratification

Legislation is passed that adopts the rights outlined and the nation is therefore legally bound

Charter

Document sets out basic rights and freedoms of the citizens in a specific state or country.

ways human rights are protected

• statute law

• common law

• constitution

• VCHR

statute law

Parliament can pass legislation to change or abrogate an existing right protected within statute law.

• the right to privacy (Privacy Act 1988)\

• right to freedom from discrimination (Racial Discrimnation Act 1975)

common law

Developed when a court must make a decision on a dispute where no current legislation applies or whether the court must interpret a statute to apply it to the case before it.

• through precedent

• ultra vires

• codification

• abrogation

common law: precedent

Judges can play a significant role in protecting rights when there has been a breach

• Statutory interpretation

• Precedent

common law: ultra vires

Ability of courts to declare acts of parl’ invalid when made beyond their law making power
1 → Commonwealth parl’ passes an Act which is deemed beyond its law making powers

2 → Parties whos rights have been breeached in relation to this Act challenge the legislation within the High Court

3 → High Court can declae legislation invalid if Act was made outside powers (cannot be overruled by parl’)

common law: codification

Passes legislation that reinforces legal principles established by court through precedent/ruling

common law: abrogation

Cannot override rights established in High court matters in relation to the interpretation of the Constitution

Constitution

• Governance

• Outlines structure and creation of law making powers such as parliaments, courts, etc

• Establishes basic human rights

express rights

Explicitly stated and entrenched in the constitituion

• only changed thru referendum

• 5 express rights

  • Right to freedom of religion

  • Right to free interstate trade and commerce

  • Right to trial by jury for Commonwealth indictable offences

  • he right to just terms for the acquisition of property

  • the right not to be discriminated against based on where one lives in another state

implied righrs

Not explicitly stated - Judges have interpreted words of the constitution and decided it is implied that the right(s) exist

structural rights

systems established by the constitution that indirectly protect human rights by ensuring government actions achieve human rights protections

• representative govt

• seperation of powers

VCHR

single piece of legislation additional to federal and state laws to promote and protect basic human rights, freedom and responsibilities of Australians

• easily amendable

• requires parl’ to review bills and determine compaitibility with rights set out in charter

  • the right to life

  • freedom of movement

  • the right to take part in public life

  • the right to protection from torture and cruel, inhuman or degrading treatment

nature and development of AOCR

- The current AOCR in Victoria is 10 - Recommended by UN that AOCR should be at least 14 (ratified)

the laws that apply to the AOCR in australia

Childten, Youth and Families Act 2005 (Vic) + Crimes Act 1914 (Cth)

→ a child <10 cannot commit a criminal offence

→ a child b/w the ages of 10-14 can be charged with an offence if the prosecution proves mens rea - can be released on doli incapax

→ a child 14+ can be charged and imprisoned for committing a criminal offence

doli incapax

the presumption that a child is incapable of forming mens rea (criminal intent)

possible conflicting attitudes - for

• Supported by medical experts, Indigenous groups and human rights organisations - credible

• Early criminalisation can harm development (incl. Indigenous youth) - subject to poor mental and physical health

possible conflicting attitudes - against

• Alternative responses may not deter offenders from reoffending effectively

• Actively avoids holding offenders accountable for their crimes, therefore preventing victim from feeling empowered

reform

making changes in the law to improve it and making it relevant to changing societal values

possible reforms to the protection

- Raising the age to 14 (Raise the Age Campaign)
→ reduce the rate of youth incarceration

Raise the Age Campagin

• Began in 2020 as a national effort to change the AOCR

• Formed by a coalition of ATSI organizations, legal, medical and human rights groups

• Contends that it is unjust and harmful to lock up children under 14

  •  especially ATSI children, who are overrepresented in detention

• Calls on the govt to raise the age, invest in community-based supports

Groups that support the campaign

• National Aboriginal and Torres Strait Islander Legal Services

• The Greens

• Victoria Legal Aid

evaluating VCHR

• (+) The Charter ensures human rights issues are considered and debated publicly when proposed legislation is tabled in Victoria. This creates a political risk for law-makers to introduced laws breaching human rights, discouraging MPs from doing so.

• (+) The Charter has a greater number of fundamental rights (20) as compared to the Constitution, which only has 5 explicitly-protected established rights, therefore explicitly indicating the rights Victorians should expect to be awarded in society.

• (-) The VCHRR does not establish the right for Victorians to bring a case against parliament for creating a law that breaches the rights of the Charter

• (-) Laws enacted before the Charters introduction in 2006 may not align with its human rights standards as a Statement of Compatibility was not required when these laws were created, therefore MPs may not have considered the human rights implications during the law-making process.

evaluating constitution

• (+) The five express rights are entrenched in the Constitution and therefore can only be removed by a successful referendum, which is an extremely difficult process, making it unlikely that these rights will be removed easily.

• (+) The High Court has the ability to find implied rights, therefore enhancing protection of the people’s rights regardless of whether they are explicitly stated in the constitution or not.

• (-) The few numbers of express rights (5) in the Australian Constitution can limit the law-making powers of parliament

• (-) A law in breach of an express right operates until it is challenged and declared invalid in the High Court. This will require a party withstanding to take legal action, which is both costly and time consuming and therefore, may deter or prevent a case from being brought altogether.

evaluating statute law

• (+) Rights protections can easily change as societal expectations and values evolve overtime, as at the time of federation, discrimination on the basis of individualistic characteristics such as gender, sexuality and race was common in Australia.      

• (+) Comprehensive coverage: Statute law (like the Charter of Human Rights and Responsibilities Act 2006 (Vic)) clearly outlines rights such as freedom of expression and equality, making them accessible and enforceable. 

• (-) In order to obtain justice in the form of damages or an apology for being a victim of human rights abuse, most legislation declares that such a claim must be pursued through the courts, which can be a time consuming and expensive process for the parties involved, Furthermore, some individuals may not be able to if they have a lower socioeconomic status, therefore are unable to achieve justice.

• (-) The Parliaments ability to pass new laws that amend or remove human rights that were previously protected in legislation as these rights are not enshrined in the Constitution and therefore can be removed at the discretion of parliament. Thus, in theory, certain human rights protections currently in place can be removed at any time.

evaluating common law

• (+) Courts are able to give meaning to the words in Federal and State legislation and the Constitution to determine whether particular actions are in breach of human rights. This is beneficial as society changes and new issues and scenarios of potential rights abuses arise.    

• (+) The courts are able to recognize and individuals’ human rights if the parliament has failed to do so.      

• (-) Courts cannot initiate a change in the law to recognise human rights – instead they must wait for a relevant case to be brought before the courts

• (-) As common law can be abrogated by legislation, many human rights can be abolished. Therefore, they are not set in stone and are subject to change.

evaluating express rights

• (+) entrenched into the constitution

• (+) If Parliament passes a law that breaches an express right, the High Court can declare it invalid, providing strong judicial protection.

• (-) Only 5 express rights, limiting protection of human rights

• (-) They can be restricted for the protection therefore are not absolute