Legal Studies Unit 2 AOS 3- Human Rights UPDATED Version 2

Human Rights

Basic freedoms or standards that promote and uphold the dignity of all people, and are guaranteed by a moral sense of duty or by the law. They belong to all people regardless of their race, nationality, religion, gender identity, age, economic status or any other attribute.

Protecting Human Rights Through Statute Law

• Most human rights in Australia are recognised in and protected by statute law.

• The Commonwealth Parliament has the power to pass legislation that applies to and protects the rights of all Australians. Each state and territory parliament has the power to pass legislation that applies to and protects the rights of the residents of that state or territory.

• These statutes must also be amended when appropriate to best meet the needs of the people.

Statute Law Protection Strengths

1. Statutes are often detailed and precise, and protect human rights specifically, rather than being implied. For example, one of the 20 human rights protected by the Victorian Human Rights Charter is ‘the right to not be tried or punished more than once’, clearly stating that a person cannot be punished for the same crime twice, specifically protected their right to a fair hearing and protection against double jeopardy.

2. Human rights contained in statutes are generally enforceable and need to be recognised by government organisations. For example, the Crimes Act 1914 (Cth) protects the right to security of a person and if someone breaches this right, the courts will provide a suitable sanction.

Statute Law Protection Weaknesses

1. Parliament can include exemptions, limitations or restrictions in statutes, so protected human rights are not always absolute. This means that human rights protection is not guaranteed or absolute therefore human rights are not always fully protected.

2. Human rights protected under statute law are not as strongly protected as those in the Constitution, as constitutional rights can only be changed or removed with public approval. Statutory rights are comparatively easier to change with the support of Parliament, whereas constitutional rights require a referendum with a double majority vote, making them harder to alter. This is a weakness because statutory rights are easier for Parliament to change or remove, making them less secure.

Three ways to protect human rights through common law

Judges have the role of protecting human rights through:

1. Through courts establishing new human rights, independent of the human rights protected by statute law (i.e. common law)

2. Through courts recognising and upholding human rights contained in statute law

3. Through courts determining the validity of human rights legislation

Establishing new human rights

Courts can establish human rights when resolving cases that involve the alleged breach of human rights. When making their decisions, judges may establish a legal principle that protects human rights.

Eg. The right to silence

Recognising and upholding human rights contained in statutes

Courts can also recognise, uphold and strengthen the various human rights protected under statue law, including the Human Rights Charter. Eg. The right to equality before the law.

Determining the validity of human rights legislation

Courts can protect human rights by declaring Acts of Parliament invalid if they exceed Parliament's law-making powers (ultra vires). This means Parliament cannot make laws beyond the powers granted by the Constitution, and courts can declare these laws invalid.

Common law protection strengths

1. Courts are independent of Parliament and can establish precedents without political pressure. For example, courts protect the right to a fair trial by ensuring that accused individuals have their cases heard by a competent, independent and impartial court, with a fair public hearing. They can also stop a trial from proceeding if they believe it would be unfair in any way.

2. Courts can infer human rights without needing to consider how those rights may need to be limited. For example, when recognising the right to legal representation, courts focus on ensuring the accused receives a fair trial, rather than considering how this right may need to be restricted due to factors such as government funding or public opinion.

Common law protection weaknesses

1. Courts must wait for a case to come before them before they can recognise and protect certain human rights. For example, courts had to wait for a case concerning the right of transgender people to marry before addressing their legal rights. This is a weakness because unless someone seeks justice, their human rights may remain unrecognised or unprotected.

2. Parliament, as the supreme law-making body, can abrogate common law rights. If the common law right is not related to a constitutional matter, the Parliament can abrogate it, leaving an uncertainty on whether human rights will stay protected.

Protecting Human rights through the Australian Constitution

The Constitution has the role of protecting human rights through

1. Express rights

2. Implied rights

3. Structural protection

Express rights

Rights that are stated in the Australian Constitution. Express rights are entrenched, meaning they can only be changed by the referendum. There are five express rights including the right to freedom of religion and the right to free interstate trade and commerce.

Implied rights

Rights that are not explicitly stated in the Australian Constitution but are recognised through the High Court's interpretation. For example, the implied right to freedom of political communication comes from sections 7 and 24 of the Constitution, which require members of Parliament to be 'directly chosen by the people'. This implies that citizens must be able to access political information and communicate about political matters to make informed voting decisions.

The Australian Constitution protection strengths

1. Express rights can only be abolished or changed through the referendum process; that is, via a compulsory public vote. This means express rights cannot be changed by parliament without the support of Australian people. For example, the right to freedom of religion (s116) can only be changed through a referendum with a double majority vote, ensuring protection.

2. All rights (including human rights) protected by the Constitution can be enforced through the High Court, which can declare statutes invalid if they breach constitutional rights. Parliament must then either amend the legislation to remove the unconstitutional sections or hold a referendum to change the Constitution. This ensures constitutional rights are protected.

The Australian Constitution protection weaknesses

1. Changing express rights is difficult due to the double majority requirement in a referendum and voters potentially being reluctant or sceptical of change. This means human rights may fail to keep up with changing societal needs. For example, the 2023 Voice referendum was unsuccessful, demonstrating how difficult constitutional change can be. This is a weakness because necessary changes to human rights may be delayed or prevented due to the difficulty of changing the Constitution.

2. Very few human rights are expressly protected by the Constitution. The human rights that are expressly protected are very limited in scope and act as more of a restriction on parliament’s law making than a positive right. An example of this is the limited right to trial by jury which is only applicable to be people who are charged of an indictable offence. This is a weakness because many human rights are not specifically protected by the Constitution, meaning individuals may have limited constitutional protection if their rights are breached.

Mabo Case

The Mabo case (1992) was a landmark High Court case where Eddie Mabo and other Meriam people fought for recognition of their traditional land rights. The High Court rejected terra nullius, which was the belief that Australia belonged to no one before British settlement. The court recognised that Aboriginal and Torres Strait Islander peoples could have existing traditional rights to their land, known as native title.

Future impact of the Mabo decision

The case led to the Native Title Act 1993 (Cth), allowing Indigenous Australians to claim recognition of their traditional land rights. This was a positive development because it recognised Indigenous Australians' connection to their land, helped protect their cultural heritage and addressed a historical injustice.

A future reform regarding First Nations People

A future reform regarding First Nations People is addressing disadvantage in the criminal justice system:

The government has not formally adopted UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples), leading to criticism from the UN. Human rights organisations have suggested reforms, for example, introducing legislation to ensure independent investigations into First Nations deaths in custody and prevent inhumane treatment.

Conflicting attitudes towards First Nations Rights

1. Some people argue that changing the Constitution to recognise First Nations People as the traditional owners of the land would acknowledge the injustices they have suffered and could enshrine anti-discrimination laws for them. Whereas others believe that it will not result in any tangible improvement in the human rights of First Nations People.

2. Some people support investing in reforms such as addressing family violence and independently investigating First Nations deaths in custody. Others believe government funding should prioritise services such as hospitals, roads and infrastructure that benefit the wider community.

How to answer a 10 marker

1x Introduction

8x Four points (at least), into two body paragraphs with detailed explanations or examples

1x Conclusion

Section B

All answers MUST REFERENCE SOURCE (eg. Source 1)

Human rights protected by commonwealth statutes

1. Crimes Act 1914 (Cth)

2. Racial Discrimination Act 1975 (Cth)

Human rights protected by state statutes

1. Privacy and Data Protection Act (Vic)

2. Electoral Act 2002 (Vic)

Human rights that the Victorian Human Rights and Responsibilities Charter protects

• Right to life

• Right to freedom of movement

Three ways the constitution protects human rights

1. Express Rights

2. Implied Rights

3. Structural Protection

Structural Protection

Structural protection refers to the framework that exists within the constitution to indirectly safeguard our rights. Examples of this include:

-The bicameral structure of the Commonwealth Parliament which ensures that bills are adequately protected.

-S7 and S24 requires members to be 'directly chosen by the people’ which ensures that members are held accountable for their actions and promotes representative government.

-The Separation of powers

10 marker structure for this test for 1 topic

Paragraph 1: Introduction and a contention

Paragraph 2: Explain the topic eg. statute law

Paragraph 3: 2 strengths and examples/explanations

Paragraph 4: 2 weaknesses and examples/explanations

Paragraph 5: Conclusion and restate the contention

10 marker structure for this test for 2 topics

Paragraph 1: Introduction and a contention

Paragraph 3: Explain topic 1 eg. common law, 1 strength with example/explanation and 1 weakness with examples/explanation

Paragraph 4: Explain topic 2 eg. Constitution, 1 strength with example/explanation and 1 weakness with examples/explanation

Paragraph 5: Conclusion and restate the contention