Protection of human rights Flashcards
Types of protection
Constitutional, statutory, common law, international law
Examples of constitutionally protected rights
Section 41- right to vote, Section 51 (xxxi)- right to property, Section 80- right to trial by jury, Section 116- freedom of religion, Section 117- state discrimination, Section 7 and 24- implied right to political communication
Advantages of constitutional protection (5)
Entrenched in the highest law (beyond the reach of executive and legislative), Empower judiciaries (High Court and Supreme Court have power over rights), Judges can discover implied rights keeping them up to date, Encourages right awareness amongst the population, Binds all three branches of government
Disadvantages of constitutional protection (5)
Least flexible (hard to add to and remove outdated rights- eg bill of rights and 3rd amendment about quartering soldiers), Constitutional courts have supremacy over rights, Rights can be created through interpretations of the constitution, Lie beyond the democratic process, US change to constitution is done by congress, not by the people (still very hard)
Statutory protection
Ordinary law made by parliaments
Examples of statutory protection
PJCHR, Northern Territory intervention suspended racial equality to protect women + children
Advantages of statutory protection (4)
Form of ordinary law (inferior to constitutional law but superior to common law), Responsive and adaptable as made by parliament (reflects will of the majority) E.g Same sex marriage act 2017, Flexible as they are more responsive to the will of the people meaning they can reflect changing values and attitudes, Parliamentary sovereignty means the legislature can override court interpretations of statutory rights
Disadvantages of statutory protection (5)
Rights can be easily changed or removed, Democratic majority can persecute an unpopular minority (Indigenous Australians), Politically contested rights, Executive dominance, Non-binding on parliament
Common law protection
Ordinary law made by judges in courts
Example of common law protection
Principle of legality
Advantages of common law protection (4)
Flexible as they can be adapted by courts and overridden by parliament, Principle of legality- onus is placed upon parliament to carefully consider the rights impact of legislation, If parliament overreaches, it is clear as laws must be written clearly
Parliament is held accountable through elections
Disadvantages of common law protection (5)
Relatively insecure, Parliament can override rights, Non-binding on parliament, Executive dominance means common law can be overridden in times of populist pressure for policies that are tough on crime, Crises can produce public fear and popular demands to override common law (E.g Australian anti-terror laws made after 9/11, US overrode the right to silence and the presumption of innocence)
Example of protection under international law
Australian state and territory based bills of rights contain 20 civil rights adopted from UN ICCPR
Advantages of protection under international law (5)
Allows Australia to promote human rights internationally through involvements in drafting UN treaties, covenants and protocols, Adopting international human rights raises the profile of human rights in Australia and internationally, Allows evaluation of a country’s human rights performance, Aligns Australian human rights practice with the expectations of the international community or similar democratic nations (Mabo V Queensland), Enables courts in one country to apply the human rights jurisprudence of courts in other countries – that is persuasive precedents
Disadvantages of international law (2)
Unenforceable in any jurisdiction unless agreed to or adopted by a nation state upholds the law within its jurisdiction (Many agree to international laws but don’t bind it, some sign and promote the principles but don’t agree to Optional Protocols), Must be agreed and legislated into domestic law to be truly effective (ratification)
