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CIVIL LAW: Human Rights, Basic freedoms/standards that uphold the dignity…
CIVIL LAW: Human Rights
What is a declaration?
A non-binding agreement that sets out the expectations of a nation.
What is a treaty?
A treaty is a legally binding agreement from multiple nations which must be followed by those it is agreed upon.
What is a convention?
What is ratification?
Confirmation from a nation's parliament of its approval of an international treaty signed by its government. The parliament expressly passes legislation that requires it by law to adopt the various rights and responsibilities set in a treaty.
What is codification?
Codification refers to the act of parliament implementing common law established in the courts into statute law, therefore making the law "official".
Strengths and weaknesses of human rights
STRENGTHS
Parliament can create new legislation and amend existing ones.
Statutes are typically detailed and precise to explicitly protect human rights.
Human rights in statutes are enforceable and need to be recognised by government organisation.
Parliament is able to pass laws quickly if there is a pressing need to protect human rights.
WEAKNESSES
As the supreme law-making body, parliament can create and amend existing statutes.
Parliament can include exemptions, limitations or restrictions in statutes, meaning protected human rights are not necessarily absolute.
Statutes do not always mean damages are awarded following human rights breaches.
Human rights protected in statute law are not as well protected as human rights in a constitution.
Strengths and weaknesses of common law
STRENGTHS
Courts are independent of parliament, meaning precedent may be established.
Courts can make decisions to establish human rights when parliament has not.
Courts can infer human rights without needing to consider how those rights may be limited.
Courts can highlight the gaps in protecting human rights for parliament.
Historically, courts have been able to protect human rights without parliament abrogating them.
WEAKNESSES
Common law rights are not always easily defined or identified.
Courts must wait for a case to come before them in order to declare the existence of a human right.
Parliament can abrogate common laws.
Some courts may be reluctant to recognise certain rights, leaving it for parliament to protect those rights.
Judges are limited in applying the law to the case before them and cannot extend their decisions to human rights or issues outside the case.
Strengths and weaknesses of the Australian Constitution
STRENGTHS
Express rights can only be abolished or changed in a referendum.
The implied right to freedom of political communication shows that human rights can be implied or recognised by the High Court if they're written in the constitution.
All rights and human rights are protected by the constitution and are fully enforceable by the High Court and any statute found to breach rights can be declared invalid.
The high court can interpret the meaning of the words and phrases in the Australian Constitution, so it can keep in line with changing community values and maintain relevance.
WEAKNESSES
Changing express rights through a referendum can be a difficult, costly and time consuming process.
Not many human rights are expressly protected by the constitution.
It is expensive and time-consuming to take a case to the High Court to challenge any statutes that breach any rights in the constitution.
The High Court cannot interpret the meaning of the constitution and declare an infringement of rights until a relevant case is brought before it.
Basic freedoms/standards that uphold the dignity of people and upheld by moral obligation or by statute law. This is stated in the
Universal Declaration of Human Rights.
Universal Declaration of Human Rights
Contains 30 articles
EG: article 13 states the right to freedom of movement.
EG: article 9 states the right to security of person.
EG: article 1 states all human beings are born free and equal.
Has been translated into over 500+ languages.
The declaration was proclaimed on the 10th of December, 1948, following WWII.
This declaration was established by the
United Nations.
There are 193 member nations and organisations.
It was established on the 24th of October, 1945.
Rights system in Australia
Statute law
Laws made by parliament that are in Acts which the law enforcement bodies aim to enforce in society.
Australian Constitution - Commonwealth and Australia Constitution Act 1901 (UK)
The Aus. Constitution is the fundamental law which states the structure of Australia, as well as the laws and rights which must be adhered to in the country and establishes itself as a federation.
The courts
The courts in Australia have a federal and state hierarchy. The supreme law-making body is the federal (aka Commonwealth) parliament.
Common law
Also known as judge-made and case law, common law refers to law established in a case, based off precedent established in higher courts where the material facts of the case are the same.
What is precedent?
Precedent is a principle established in a legal case that is followed by courts in later cases when and where material facts are similar. They may be binding or persuasive, depending on the ranking of the court.
Rights in Australia
Common law rights
The right to humane treatment when denied liberty.
The right to freedom of movement.
The right of First Nations People to not be denied connection to their country.
The right to freedom of thought, conscience and religion or belief.
The Victorian Human Rights Charter
The right to life.
The right to protection from torture and cruel, inhuman or degrading treatment.
The right to freedom of movement.
The right to freedom of thought, conscience, religion and belief.
The right to take part in public life.
What is the Victorian Human Rights Charter?
It was made in 2006.
It is cited as "Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic)"
It came into effect on January 1st, 2008.
Rights protected by Commonwealth parliament
Rights protected by Victorian parliament
The right to privacy.
Freedom of Information Act 1982 (Vic)
Privacy and Data Protection Act 2014 (Vic)
The right to security of person.
Crimes Act 1958 (Vic)
Road Safety Act 1986 (Vic)
Sentencing Act 1991 (Vic)
The right to freedom from discrimination.
Racial and Religious Tolerance Act 2001 (Vic)
Equal Opportunity Act 2010 (Vic)
The right to vote.
Electoral Act 2002 (Vic)
The right to privacy.
Regulates the use, storage and disclosure of private information by the government and private organisations.
Freedom of Information Act 1982 (CTH)
Privacy Act 1988 (CTH)
The Right to Security of the Person.
To protect the right of Australian citizens to feel secure and safe.
Crimes Act 1914 (CTH)
The right to Freedom from Discrimination.
To protect individuals from discrimination based on race, religion, ethnicity, sex, sexual orientation, gender, identity, age, disability, etc.
Racial Discrimination Act 1975 (CTH)
Sex Discrimination Act 1984 (CTH)
Australian Human Rights Commission Act 1986 (CTH)
Disability Discrimination Act 1992 (CTH)
Age Discrimination Act 2004 (CTH)
The Right to Vote
One Commonwealth Act provides the rights of Australians to vote in elections.
Commonwealth Electoral Act 1918 (CTH)
Express rights
Right to free interstate trade and commerce. (s92)
Right to not be discriminated against by the Commonwealth based on state of residence. (s117)
Right to receive 'just terms' when property is acquired by the Commonwealth. (s51 xxxi)
Right to trial by jury for Commonwealth indictable offences. (s80)
Right to freedom of religion. (s116)
Implied rights
Freedom of political communication.