Human Rights

Question 1

Define human rights

Answer 1

• rights inherit to all human beings, regardless of sex, race, religion, or any other status
• inherit by virtue of their humanity alone (not purchased or granted)
• the protection of human right are the responsibility of authorities or agents, not the individual
• protected by the ‘rule of law’

E.G.

• the right to life and liberty
• freedom of speech and movement
• the right to education and work etc.

Human rights are considered to be:

1. universal (applied to everyone by virtue of being human)
2. interdependent (all rights rely on the existence and respect of all other rights)
3. indivisible (no rights are considered superior than others - no basic human rights?)
4. inalienable (the state or individuals within society cannot separate a person from their rights without due process of law)

Question 2

Define political rights

Answer 2

= rights which allow people to participate freely in the political system, without fear of discrimination or repression.

E.G.

• the right to vote
• the right to be elected
• differs from ‘civil rights’

Question 3

Define civil rights

Answer 3

= The right of to achieve basic human needs, and to achieve a good quality of life and individual freedoms. Guarantees equal social opportunities and equal protection under the law regardless of sex, race, class, religion etc. - such as protection from government intervention and discrimination in all sectors of society.

E.G.
- the right to healthcare, housing, food, education, work, social security.

• Differs from ‘political rights’

Question 4

Define economic rights

Answer 4

= the right to pursue and protect property and wealth, pursue opportunities and to be protected from poverty and hunger.

E.G.

• the right to work in safe conditions
• the right to earn a wage which provides a minimum quality of living
• protections if the individual is unable to work

Question 5

Define legal rights

Answer 5

= the protections provided by the judicial system that provide for the due process of law and equality before the law

E.G.

• the right to silence
• the presumption of innocence
• the right to a fair trial

Question 6

Distinguish between negative and positive rights

Answer 6

negative rights

• rights which people are expected to enjoy without the actions of government intervening
  e. g. the right to participate in politics, the right to life

positive rights

• the rights which, to be enjoyed, require government action and intervention
  e. g. the right to healthcare, protection against discrimination

Question 7

Distinguish between first, second and third generation rights

Answer 7

First generation rights
= those rights established from the 18th to 20th century - typically civil and political rights.

Second generation rights
= those rights established during the 20th century - typically economic and social rights

Third generation rights
= those rights which emerged towards the end of the 20th century - typically cultural rights and are often in conflict with other rights, such as gender roles

Question 8

Outline the Constitution as a means for protecting human rights in Australia

Answer 8

= A constitution is a set of rules and laws that act as a framework for a country’s government.

The fundamental political human rights of Australians are outlined in the Const. but limited to only a few. There are both expressed and implied rights. These can be changed by a referendum, and are interpreted by the High Court.

7, 24 - the right to vote in election, implies freedom on political communication

51 xxxi - protection of private property being acquired by the Commonwealth

73 - the right to request an appeal to the High Court

75 - the right to request an appeal to the high court on certain matters, mainly Writ of Mandamus

80 - the requirement of a jury for Federal indictable offences (right/requirement)

100 - the right to access water

116 - freedom of religion and no religious test

117 - prohibits discrimination in. state against a resident of another

Question 9

Outline three examples that involved the High Court’s interpretation of the Constitution and enhanced human rights

Answer 9

1. Roach
   = protected the right of all prisoners serving a sentence of no longer than 3 years to vote, when the Commonwealth sought to take away this right from all prisoners.
2. Plaintiff S157
   = protects the rights of individuals whose natural justice has been denied by a privative clause, by allowing the High Court to over-rule the Act in question (s.73 - right to appeal)
3. Dietrich
   = protects the right to a ‘fair trial’, specifically by allowing all individuals charged with a serious indictable offence the right to proper legal representation. (enhanced rule of law)

Question 10

Outline common law as a means for protecting human rights in Australia

Answer 10

= countries with common law systems (such as Australia) allow the courts to establish human right protections - in particular in regard to the judicial process.
- can be sustained or overturned by parliaments.

E.G.

• the presumption of innocence and the prosecution carrying the burden of proof
• respect for legal professional privilege
• the right to silence
• the provisions of reasons for judicial decisions
• freedom from extension of governmental immunity
• the right to procedural fairness when affected by the exercise of public power

High Court E.G.
Dietrich - the right to a fair trial
Plaintiff S157 - judicial review
Native Title - until Native Title Act

Question 11

Outline how Australia’s statutory laws protect human rights

Answer 11

= when a nation chooses to enshrine human right protections into specific acts of legislation, created by Parliament. Some states (Queensland, Vic) also have a statutory bill of rights which government can overturn.

• reflect the democratic will of the majority
• can be created, altered and repealed by the Parliament

E.G.

• Age Discrimination Act (2004)
• Disability Discrimination Act (1992)
• Racial Discrimination Act (1975)
• Sex Discrimination Act (1984)

Question 12

Outline international law as a means for protecting human rights in Australia

Answer 12

= when the Parliament agrees to convert/ratify international treaties/covenants/conventions into law through the statutory process.
- the requirement of Parliament’s ratification ensures no individuals can effectively make law by signing treaties, therefore avoiding tyranny.

Covenants etc. = formal agreements between states that agree to achieve certain standards of human rights once ratified by domestic law makers (parliaments)

(protocol - a less formal agreement designed to amend or clarify a treaty)

E.G.

1. International Covenant on Civil and Political Rights
2. International Covenant on Economic, Social and Cultural Rights
3. International Covenant on the Elimination of All Forms of Racial Discrimination
4. Convention on the Elimination of All Forms of Discrimination Against Women
5. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
6. Convention on the Rights of the Child
7. Conventions on the Rights of Persons with Disabilities

Question 13

Describe the Australian Human Rights Commission

Answer 13

= an independent statutory organisation, established by the Australian Human Rights Commission Act 1986, which protects and promotes human rights in Australia and internationally.

• investigates discrimination and human rights complaints (free and confidentially)
• advocates to governments and others for human rights to be considered in law and policy making
• promotes and raises awareness of human rights through education and training, events, media outreach etc.
• appears as an amicus curiae to provide expert advice in discrimination cases

High Court Example
- Plaintiff M106 = removing unaccompanied children to another country was unlawful

Question 14

Define the Parliamentary Joint Committee on Human Rights

Answer 14

• Established by the Human Rights (Parliamentary Scrutiny) Act 2011
• Main function is to examine all bills and legislations for compatibility with human rights, and to report back its findings to both Houses of Parliament
• Can also examine past legislation as well as those referred to it by the Attorney General

Question 15

Describe how Parliament oversee human rights protections

Answer 15

The Parliamentary Joint Committee on Human Rights

• established by the Human Rights (Parliamentary Scrutiny) Act 2011
• Examines all bills and legislation for compatibility with human rights, and reports back to both Houses of Parliament on its findings
• Also can examine past legislation including matters referred to it by the Attorney-General

Question 16

Define a ‘Bill of Rights’

Answer 16

Bill of Rights

• a list of the fundamental rights of a citizen in a country
• protects the right of individuals from being violated by the state or other individuals
• can be entrenched within a constitution or non-entrenched (statute)
• Australia is the only liberal democracy that doesn’t have a federal bill of rights
• Victoria and Queensland created state-level bill of rights, which can be overturned by government

Question 17

Outline the arguments for and against Australia having a Bill of Rights

Answer 17

For:

1. argues that Parliament cannot be trusted to protect human rights
2. The bodies that hold Parliament to account are made by Acts of Parliament, meaning they can be altered or removed by Parliament at any time
3. It would further protect the rights of minorities - significant to liberal democracies
   E.g. 2008 Northern Territory intervention which infringed on the rights of Aboriginal Australians and the treatment of asylum seekers in detention.

Against:

1. Australia already has an effective protection of rights (through Const., statutes, common law and international treaties)
2. The Parliamentary Joint Commission and the Australian Human Rights Commission (an independent body) holds Parliament accountable
3. The High Court protects rights through appeals and the ability to interpret the Constitution (s.73 appeals, s.76 interpretation)
4. A bill of rights removes significant power from the elected representatives of the people, and instead gives power to non-elected judges who interpret the rights (e.g. the meaning of ‘freedom of speech’, which is too vague)
5. Australians have rejected two referendums to entrench a bill of rights in the constitution (1944 referendum and _____)

Question 18

Outline how the US’ Constitution protects human rights

Answer 18

Amendments 1-10 comprise the Bill of Rights (freedom of speech, assembly, religion, right to keep and bear arms etc.)

13th Amendment (1865) - abolished slavery

14th Amendment (1968) - addresses citizenship rights, due process (prohibits state and local government officials from depriving persons of life, liberty or property without legislative authorisation) and equal protection under the law

15th Amendment (1870) - prohibits the federal and state governments from denying a citizen the right to vote based on that citizen’s race, colour or previous condition of servitude (slavery)

19th Amendment (1920) - gave women the right to vote

Question 19

Outline how the US’ statutes protect human rights

Answer 19

1. Civil Rights Act of 1964
   - considered a landmark case
   - prohibited discrimination based on race, colour, religion, sex or national origin
   - ended unequal voter registration requirements, racial segregation in schools, workplaces and by public service facilities
2. Equal Pay Act 1963
3. Age Discrimination in Employment Act of 1967
4. Americans with Disabilities Act 1990

Question 20

Outline US’ involvement with international treaties

Answer 20

1. International Covenant on Civil and Political Rights
2. Convention on the Elimination of All Forms of Racial Discrimination
3. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Question 21

Outline how the US Supreme Court can protect human rights

Answer 21

• lacks meaningful common law protections
• the Supreme Court has identified and implied fundamental rights not explicitly stated in the Constitution
  e. g. the presumption of innocence, freedom of movement