Rights and Responsibilities: Vocab

Individual and the Law

  • Part II focuses on how law impacts individuals, using legal and non-legal institutions and media reports.
  • Key themes:
    • Justice, law, and society relationships
    • Rights and responsibilities
    • Balancing individual rights vs. state needs
    • Law's role in technology regulation
    • Effectiveness of legal mechanisms

Rights and Responsibilities

  • Rights: Legal or moral entitlements.
  • Responsibilities: Legal or moral duties to others or the state.
  • Rights and responsibilities are related; states protect rights, and groups expect responsibilities to be met.
  • For a right to have a legal basis, it must be protected and enforceable by law.

Legal Basis of Rights in Australia

  • Rights flow from the Constitution, statute, and common law.
  • Australian Constitution:
    • Express Rights: Clearly stated rights, like freedom of religion (Section 116).
    • Implied Rights: Not expressly written but inferred, such as freedom of speech.
  • Statute: Rights protected by laws like the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth).
  • Common Law: Rights based on court decisions, such as the right to a fair trial established in Dietrich v R [1992][1992] HCA 57.

Legal Basis of Responsibilities

  • Statute: Legal obligations or duties, e.g., parents' duty to send children to school (Education Act 1990 (NSW)). Section 4 of the Act, every child has the right to an education.
  • Common Law: Based on court decisions, e.g., duty of care established in Donoghue v Stevenson [1932][1932] AC 562.

Moral vs. Legal Rights

  • Legal rights come from the Constitution, statutes, and common law.
  • Moral rights are based on differing viewpoints but aren't legally enforceable.

Charter of Rights

  • Many countries have a Bill/Charter of Rights defining entitlements against the government.
  • Australia does not have a Charter of Rights.
  • The UK's English Bill of Rights of 1689 is limited but recognizes fundamental rights.
  • The United Kingdom is bound by the European Convention on Human Rights (1953) and has the Human Rights Act 1998 (UK).
  • The United States Bill of Rights (1791) are the first 10 amendments to the Constitution.
  • New Zealand’s Bill of Rights Act 1990 (NZ) contains civil, democratic and human rights.

Arguments for and against an Australian Charter of Rights

  • For: Provides more protection of fundamental freedoms, international alignment, protects minorities.
  • Against: Existing laws already protect rights, may make little practical difference, can become outdated.

Rights, Responsibilities, and the State

  • Conflicts can arise between individual rights and state responsibilities (e.g., journalistic freedom vs. government secrecy).
  • The Australian Federal Police (AFP) raided the offices of the Australian Broadcasting Corporation (ABC) to investigate potential criminal behavior by two journalists, Sam Clark and Dan Oakes.
  • Larter v Hazzard (No2)[2021](No 2) [2021] NSWSC 1451: The NSW Supreme Court ruled against the plaintiff’s argument that he and other NSW Health workers should not be forced into vaccinations against their health concerns.

Freedom of Religion

  • Israel Folau case: Highlights conflict between religious expression and employer rights.
  • Folau was stood down for claiming that certain people were destined to ‘go to hell’ if they did not follow Christianity.
  • Constitutionally Protected Rights:
    • Section 80: Right to trial by jury
    • Section 116: Freedom of religion
    • Section 117: Right not to be discriminated against based on state of residence
  • Australia is a party to seven core international human rights treaties.
  • Racial Discrimination Act 1975 (Cth), Section 18C became known as the ‘Bolt laws’.

Defamation

  • Legal protection against defamation suits:
    • Truth
    • Honest opinion on public interest
    • Duty to communicate.
  • Geoffrey Rush v Nationwide News: Rush was awarded 850,000850,000 in initial damages after winning his defamation case against Nationwide News.

International Protection of Rights

  • Treaties: Binding after ratification and domestic legislation.
  • Declarations: Morally binding, set standards (e.g., Universal Declaration of Human Rights).
  • The Universal Declaration of Human Rights (1948) outlines rights humans are entitled to.
  • Self-determination: The right of people to determine their political status.
  • The United Nations declared a decade for World Indigenous Rights from 1995 to 2004.

Circle Sentencing

  • Customary law practice in First Nations communities.
  • Involves community members in sentencing.
  • Aims to prevent crime and support victims.
  • When an accused person in a criminal trial has pleaded guilty or been found guilty, and they are a member of a First Nations community, the magistrate travels to the accused’s community for the purpose of sentencing.
  • Sentences are more likely to be meaningful for the offender if imposed by authorities within their own community.
  • There has been debate as to the effectiveness of the program, with some arguing that the sentencing itself did not reduce recidivism.