Legal External 

Human Rights: Equal and inalienable rights based on mutual respect, dignity and equality. They are universal, inalienable, interdependent and indivisible.

Conventions/Covenant: a binding agreement coming into force upon ratification by a certain number of countries. Article 26 of the Vienna Convention on the Law of Treaties states that all treaties must be binding and performed in good faith.

Treaties: a binding agreement between states which is binding at international law.

• Key Features:
  • Preamble - stating the names of parties involved
  • Aim of Treaty
  • Articles - outlines terms of agreement
• Unilateral - Aus and one other country
  • eg: Aus and US aviation
• Multilateral - 3 or more countries
  • eg: UN Charter

Optional Protocol: an additional legal instrument used to add onto treaties. Provides procedure in relation to the treaty

States: a group of people permanently occupying a fixed territory having common laws and government and capable of conducting international affairs

Sovereignty: the supreme and independent power to govern as claimed or possess by a state or community

Signatory Treaty: the term signatory refers to a government being in political support of a treaty and willing to continue engaging in the treaty process. This intent is codified by a signature submitted to a qualifying international body with oversight of the treaty or an authoritative body as defined by the treaty. States may sign treaties before ratification.

Ratification: a formal process where by a legislative body confirms a governments action in signing a treaty and is thus, bound to it after acceptance. Legislature authorises governments to ratify treaties through standard legislative proceedings by passing a bill.

Bill of Rights: declaration of individual rights and freedoms

Royal Commission: established by the parliament to inquire into matters of public interest. Purpose is to ascertain factual circumstances and make recommendations. Eg: Aboriginal deaths in custody

• Pros
  • raises public awareness
  • can lead to the persecution of wrong doers
  • places pressure on governments
• Cons
  • not binding
  • terms of reference can be seen as politically biased
  • privileged against self-incrimination

Universal Declaration of Human Rights (UDHR)

• Key Features
  • universal - applies to everyone
  • inalienable - cannot be taken away
  • indivisible and interdependent - governments should not be able to pick and choose which rights are respected
• Key Rights
  • right to life liberty and security
  • freedom from discrimination
  • everyone is born free and equal in dignity

Magna Carta 1215

a document guaranteeing fundamental rights and freedoms

• no one is above the law
• everybody has the right to a fair trial
• everybody is born free and equal
• shaped democracy and democratic principles such as representative government

International Covenant on Civil and Political Rights (ICCPR)

Civil - rights and liberties relating to all people

Political - rights relating to citizenship

• Key Features - Articles
  • (1) : rights to self-determination
  • (2-5): treated equally and states must legislate provisions
  • (6-27): right to life, prohibits slavery and torture, arbitrary arrest or detention, procedural fairness and fair trial, freedom of religion
  • (28-45): established human rights commission
  • (46-47): ICCPR shall not interfere with UN operations

s80 of Constitution, HR Act and AHRC Act

International Covenant on Cultural, Economic and Social Rights (ICESCR)

• Key Features - Articles
  • (1): right to self-determination
  • (2-5): rights recognised without discrimination and steps taken to ratify it
  • (6-15): states social, economic and cultural rights
  • (16-25): reporting and monitoring
  • (26-31): amendment, enforcement and ratification process
• Key Rights
  • work
  • fair and just conditions at work
  • social security
  • health
  • education
  • adequate standard of living - food, housing and clothing

Convention Relating to the Status of Refugees (CRSR)

• Key Features
  • a refugee is someone who has a well-founded fear of being persecuted, is outside the country of his nationality and is unable or owing to such fear unwilling to avail himself of that countries protection.
  • Principle of Non-refoulement - requires states not to send refugees back to a place they are at risk of being persecuted
• Issues to Aus
  • offshore processing policies
  • detention of refugees

Migration Act

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

• Key Features - Articles
  • (1) racial discrimination is defined as any form of distinction, restriction, exclusion or preference based on race, colour or descent or ethnic or national origin with the purpose of effect of nullifying or impairing the enjoyment, exercise or recognition of human rights and fundamental freedoms on an equal footing in the civil, cultural, social, political, economic or any other field of public life
  • (2) condemns racial discrimination and obliges parties to pursue policies to eliminate racial discrimination and encourage understanding among all races
  • (3) condemns apartheid and racial segregation, asks parties to undertake to prevent, prohibit and eradicate practises of this nature in all territories under their jurisdiction
  • (4) prohibits the incitement of racial hatred (Aus has made a reservation against this)
  • (5) concerns equality before the law
  • (6) obliges parties to provide effective protection and remedies for any act of racial discrimination
• Issues for Aus:
  • offshore processing still occurs
  • unresolved claims to the land of indigenous peoples
  • increase in racial discrimination, racism and xenophobia in the public sphere

Racial Discrimination Act

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Reaffirms that everyone should be treated equally and without discrimination.

• Key Features - Articles
  • (7) parties shall take appropriate measure to eliminate discrimination against women in the political and public sphere
  • (8) opportunity to represent their government at an international level and participate in the work of international organisations
  • (9) women have equal rights with men to change, obtain and retain their nationality
  • (10) equal rights in education
  • (11) eliminations of discrimination against women in employment
  • (12) discrimination against women in the field of health care
  • (14) elimination of discrimination against women in all other fields of social and economic life
  • (15) equality with men before the law
  • (16) elimination of discrimination against women in matters of marriage and family relations
• Optional Protocol - the purpose of the optional protocol is to strengthen enforcement mechanisms force women who have their human rights breached. Allows individuals to complain to a committee about a situation they believe their human rights were violated. Gives the committee the power to investigate claims by conducting inquiries.
• Issues for Aus
  • pay gap

Sex Discrimination Act

Convention on the Rights of the Child (CRC)

has an outlook of childhood as independent and empowering

• Key Features - Articles
  • 3(1) the best interests of the child shall be the primary consideration
  • 3(2) ensures the child such protection and care as required for his or her wellbeing
  • 6(1) right to life
  • 6(2) ensures the survival and development of the child
  • 12 assures a child capable of forming his or her own views the right to express those views in all matters affecting them
• Issues for Aus
  • LGBT, disabled, asylum seeker, refugee and ATSI children may not have access to these rights

Family Law Act

Convention on the Rights of Persons with Disabilities

Does not create new rights but consolidates and clarifies how existing international human rights obligations apply to those with disabilities.

Articles 10-30 identify a number of fundament rights and freedoms including civil, cultural, social, economic and political rights and freedoms in a variety of contexts such as transport, health, education, employment and access to justice

Disability Discrimination Act

Explain the Process of Ratification and Accession

• Ratification - requires Aus to introduce terms of international law through domestic legislation
• Accession - the act whereby a state accepts an offer or opportunity to be a party to a treaty already signed and negotiated by other states
  • has the same legal affect as ratification
  • usually occurs after a treaty has entered force

Explain the Role of Reservations

A declaration made by a state to exclude or alter certain provisions of a Treaty. Enables a states to accept multilateral treaties as whole by giving it a possibility not to apply certain provisions with which it does not want to comply.

Explain the Effect of the HR Act

To ensure that future commonwealth laws are compatible with Australia’s human rights obligations. Two main aspects:

• when a Bill is introduced, a statement of compatibility which includes an assessment on whether the Bill is compatible with human rights must be included
• the statement of compatibility should identify the proposed legislations affect on human rights by either promoting or limiting them. If such a right is limited the reason for any limitations

Explain the Rights of States - Sovereignty

It is a description of statehood and identifies a number of legal characteristics including:

• states have the ability on the international stage to perform acts and accept conventions
• states have exclusive competence in their internal affairs
• states are not subject to compulsory processes, settlements or jurisdictions without the consent given either generally or in the specific case
• states are considered equal

Explain 2.1, 2.4 and 2.7 of UN Charter

• 2.1 - based on the principle of sovereign equality
• 2.4 - all states must refrain from the use or threat of force against the territorial integrity or political independence of any state or in any matter inconsistent with the purposes of the UN
• 2.7 - nothing shall authorise the UN to interfere with matters within domestic jurisdiction of any state, but this shall not prejudice the application of enforcement measures

Explain the Role of the UN

It is a forum where all member states have the opportunity to voice their opinions and vote on global issues. It enables states to resolve international conflicts and formulate policies on matters affecting all people.

• Key Goals
  • international peace and security
  • humanitarian action
  • human rights
  • economic and sustainable development

Explain the Role of the UN High Commissioner for Refugees

Role is to lead and coordinate action to protect refugees and resolve the refugee problem worldwide. Its main purpose is to safe guard the rights and wellbeing of refugees.

Implied Right: Australian Capital Television v Commonwealth

The high court struck down a NSW Act to restrict political advertising during elections. it was held that the Act breached the implied right to political speech under s7 and 24 of the Constitution. This decision confirms the Constitution impliedly protects freedom of speech on political matters and public affairs

Right to Free Speech: implied civil right

• Internationally - Article 19 ICCPR
  • everyone shall have the right to hold opinions without interference
  • everyone shall have the right to freedom of expression
  • rights can be subjected to restrictions
  • for the rights and reputations of others
  • for the protection of national security, or of public health, or of public order or morals
• Common Laws + Constitutional Right
  • Lang v ABC case
  • s7 and s24 of the constitution

is not an absolute right meaning is can be limited on several grounds. Eg: limited by Racial Discrimination Act

Right to Protest and Freedom of Association: implied civil right

• Internationally - Articles 20, 21 & 22
  • 20: mandatory limitations on the freedom of expression
  • 21: right to peaceful assembly with limitations
  • protection of national security, public order, public health, morals or another’s rights and reputations
  • 22: freedom of association

No constitutional protection

No commonwealth laws protect the right to peaceful assembly

Freedom from Discrimination: implied civil right

Internationally: ICERD, CEDAW, CRPD & ICCPR

Legislation:

• Racial, Age, Sex, & Disability Discrimination Act
• AHRC Act
• Anti-discrimination Act

Right to Democratic Representation: implied civil right

• Internationally - Article 25 ICCPR
  • take part in the conduct of public affairs directly or through a freely elected representative
  • vote or be elected
  • have access generally in terms of equality to public service
• Article 21 UDHR
  • right to vote
• Domestic Legislation
  • s41 of the Constitution
  • the right to vote shall not be prevented
  • Roach v Electoral Commissioner case
  • Electoral Act

Freedom of Religion: implied civil right

• Internationally - Article 18 ICCPR
  • everyone has the right to freedom of thought, conscience and religion; and no one shall be subjected to coercion that would prevent them from having that freedom and only laws that are necessary for the protection of public health, safety, order or morals or the fundamental rights and freedoms of others can restrict this freedom
• Domestic Legislation
  • s116 of the constitution
  • Anti-discrimination Act (Qld)

Right to Trial by Jury: express right in a criminal context

• Internationally - ICCPR Article 14
• Magna Carta
  • a free man cannot be imprisoned except by the legal judgement of his peers or by the law of the land
• Domestic - s80 of the Constitution

Double Jeopardy: implied right in a criminal context

• Internationally - Article 14(7)
  • when a judge or jury finds a person not guilty of an offence, he or she is acquitted of that offence and can never be tried for the same offence
• Domestic
  • s16 and 17 of the Criminal Code Act provided an exception where there is “fresh and compelling evidence”

Right to Legal Representation: implied right in a criminal context

• Internationally - UDHR Article 11
• Common Law: Dietrich’s case
  • was convicted in a 40-day trial in which he had no legal representation. There is no absolute right to legal representation but judge felt it was an unfair trial for serious criminal offences and no legal representation. Thus, high court (5:2) ordered a new trial

Right to Silence: implied right in a criminal context

• the right of a suspect not to answer questions before trial
  • pre-trial silence
• the right of an accused not to provide evidence in his/her defence at trial
  • at trial silence
• common law human right based on the desire to protect personal freedom and human dignity