KK1 - Ways rights are protected in Australia

• Right: Legal, social or ethical principles of freedom or entitlement.

• Examples of rights:

  • Right to life

  • Right to access to clean water, food, shelter

  • Freedom from slavery, cruel punishment and discrimination

  • Freedom of speech and religion

  • Right to vote

  • Right to a fair trial

• Ways rights are protected:

  1. Statute law

  2. Common law

  3. Australian Constitution

  4. International law

• Statute law: Australia is protected through Commonwealth, state and territory laws.

• Issue with statute laws: Parliament can pass legislation to abrogate an existing right within a statute law.

• Ratification: When laws are passed that adopt rights outlined in a treaty, convention or declaration and the nation is legally bound to it.

• Example of ratification: The Racial Discrimination Act (1975) was the ratification of the Convention on the Elimination of All Forms of Racial Discrimination (1969) from the UN.

• Treaty: A formal document that countries sign with the intent to follow laws that the document entails.

• Declaration: Non-binding agreement between countries with agreed upon aspirations.

• Charter: Document which sets out the basic rights and freedoms of citizens.

• Abrogate: To cancel or abolish common law through passing an Act to Parliament.

• Ultra vires: Latin meaning ‘beyond the powers’ → law made outside the Parliament’s powers.

• Signatory: A state or organisation that signed an international treaty to display a nation’s intent to adopt a treaty into legislation.

• Ways rights are protected in common law:

  1. Directly through precedent

  2. Ultra vires

  3. Codification

  4. Abrogation

• Directly: Judges protect rights with dispute resolution when human rights are breached. This is done through statutory interpretation or a precedent.

• Ultra vires: The courts can declare Acts of Parliament invalid when it’s made beyond the Parliament’s legislative power.

  • Ex. Commonwealth parliament passes an act deemed beyond law making power → party alleged their rights were breached challenges the law in High Court → High Court declares legislation invalid if the Act was made outside of parliament’s powers → cannot be overrode.

• Example of ultra vires: Roach v Electoral Commissioner (2007). The Electoral and Referendum Amendment Act was passed in 2007 by Parliament and changed laws so prisoners couldn’t vote. This was challenged by a prisoner named Vickie Lee Roach in High Court as it breached the right to vote. High Court ruled that Parliament breached the constitution which renders the 2006 act invalid.

• Codification: Precedents that establish human rights that are confirmed by Parliament

• Example of codification: The passing of the Native Title Act in 1983 establishing Mabo v Queensland.

• Abrogation of common law: Parliament can override the decisions made in court. However they do not have the jurisdiction to do so for High Court matters in relation to the constitution.

• Constitution: A legal document which establishes structure and law making powers like Parliament and courts. It also establishes five express rights.

• How the constitution protects rights: Express rights, implied rights and structured

• Express rights: These are explicitly stated in the Australian Constitution and apply to all citizens. They do not need to be interpreted by the high court. These are changed through a referendum, however, it requires majority of the states to vote yes which is difficult.

• Example of express rights: Freedom of religion

• Implied rights: Are not explicitly written in the Constitution, however, exist through judges interpreting the Constitutions and deciding that these rights exist.

• Example of implied rights: Absolute freedom of political communication

• Structural rights: Commonwealth established mechanisms that indirectly protect rights and ensure Parliament does not abuse their power.

• Example of structural rights: Roach v Electoral Commissioner - a prisoner who went against the Electoral Commissioner as an act was passed to inhibit prisoners from voting in elections. A representative democracy is included in the Constitution so the act went against that right.

• Enforcement: High Court

KK2 - Influence of international declarations & treaties on the protection of rights in Australia

• International declaration: A non-binding agreement between countries with agreed upon aspirations.

• Example of an international declaration: UDHR in 1948 with basic human rights that must be upheld by all nations.

• International treaty: Formal document countries sign with the intention of following laws.

• Example of a treaty: Conventions on the Rights of A Child - protection from abuse and violence.

• Charter: Document outlining basic rights and freedoms in a state or country.

• Corey Brough v Australia 2006: The International Covenant on Civil and Political Rights. This complaint was heard by the UN Human Rights Committee as he was treated unfairly due to his intellectual disability by prison officials.

• Ratification process: The executive/gob. holds the power to make + sign treaties. The government decides if legislation must be change to fit the treaty’s terms. The Parliament’s role is to ratify the treaty through Commonwealth or state Parliaments passing new laws.

KK3 - The approach adopted by one other country in protecting rights

How rights are protected in the US

• Bill of Rights: Entailed and protects basic rights of Americans, first 10 amendments. These are express rights that are changed through referendums.

  • Also have implied rights

  • Example of express rights in the Bill of Rights: Right to bear arms

• Implied rights in the US: Representative government

• Limitation to rights: No laws that restricts the US gov from making laws that prohibit religious expression + practices.

• How US enforces rights: Supreme Court interprets + applies rights. Cannot be overrode by Congress.

• Amendments to US rights: 66% of congress and 75% of state legislators to support constitutional changes

How rights are protected in Australia

• Commonwealth, territory + state legislation

• Statute law: Main way

• Parliaments in Australia can protect state/territory specific rights

• International treaties protect rights

• Racial Discrimination Act → ratification of International Covenant on the Elimination of All Forms of Racial Discrimination

• Protected through common law → common law rights

• Common law right example: Right to silence

• Limitation: Referendums

KK4 - Possible reforms to the protection of rights in Australia

• Charter or bill of rights:

  • Positives for bill of rights:

    • Strengthens rights protection

    • Holds governments accountable

    • Improves Australia’s reputation.

  • Negatives for bill of rights:

    • Basic rights of Australians are adequately protected. This is through Acts of Parliament such as the Child Wellbeing and Safety Act 2005 (vic).

    • Commonwealth passed the Human Rights (Parliamentary Scrutiny) Act 2011 → proposed legislation needs to be in line with treaties

    • Australia has already adopted and ratified many international treaties like the Convention on the Rights of the Child

• Amendments of legislation:

  • Indigenous peoples: Mabo v Queensland case: Land was recognised as belonging to Indigenous people. Initially, British colonisers applied “terra nullius” saying that there were no inhabitants prior to them. This lead to the Native Title Amendment Act 2009 so they have a role for claims for native title.

  • Asylum seekers: Aus Gov. has been pressured to improve treatment for asylum seekers like eradicating policies for the detainment of asylum seekers in detention centres. The practices violate the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.

• Higher availability of legal aid and assistance:

  • More funding should be allocated to legal aid such as Victoria Legal Aid → providing legal rep for criminal cases, as well as more civil matters.

  • Funding for organisations like the Victoria Law Foundation - minority groups who get their rights breached are aware of their basic rights. There is a large number of people ineligible for legal aid.