2.3, 2.4 a), b), c), d) Australia's incorporation of HR into domestic law Flashcards Preview

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Flashcards in 2.3, 2.4 a), b), c), d) Australia's incorporation of HR into domestic law Deck (100):

How is international law largely incorporated?

By statute law, it is part of the ratification process.


When an international treaty is negotiated and formed, how do states indicate their agreement?

by signing it.


Since Australia is under the dualist system, is simply signing a treaty enough?

no it does NOT make it enforceable in Australian law. In order for treaties to be incorporated into Australian law, it has to be ratified. This means it has to be passed into domestic law, usually by passing similar legislation or by amending existing laws.


What's an example of international law that's been incorporated into Australian law?

Rome Statute of the International Criminal Court (2002) turned into the International Criminal Court Act 2002 (Cth)


What is required for ratification to occur and what does this make the law?

Royal assent- signed by Gov General. It then makes the law binding in Australia


Why is the jurisdiction of the High Court different?

part of its role is to interpret international law, eg, the decision on the Malaysia solution


Apart from ratification (statute and-royal assent) how else can int law be incorporated domestically?

Through common law, when recognised by courts when Aus signs an int treaty and there's no conflict btw int law/Aus statutes/Common law


What did the signing of the Rome Statute of the International Criminal Court (2002) mean?

Aus must automatically enforce int laws even if citizens are overseas. The International Criminal Court Act 2002 (Cth) means that Australia can prosecute crims guilty of crimes against humanity even if it occurred outside Aus jurisdiction


Even though laws can be enacted what is the issue?

It may not be a full mirror image of what the int law provided for, - a question of sovereignty and what meets the countries needs. This means some rights can be left out.


What is a convention Aus has signed but doesn't fully follow? Which clause?

The latter part of the Refugee Convention. The non-refoulment clause means we can't send asylum seekers to a 3rd country, but Aus offers them the option to go 'back to where they came from' or to Cambodia.


What statement does Australia have that highlights when domestic legislation isn't compatible with int law?

A statement of compatibility as outlined in the Human Rights (Parliamentary Scrutiny) Act 2011. But even if incompatible, laws can still be passed.


The Constitution plays 2 important roles in protecting human rights for Australians:

1) It lays down the system of Aust government thru which human rights are recognised (separation of powers and division of powers)
2) It is the source of some specific human rights—express and implied rights


What are the express rights of the Constitution

1.Right to vote
2.Trial by jury (fed jurisdiction only)
3.Freedom of religion
4. Right to acquisition of property by the Cth on just terms
5.Freedom of movement between states


What does domestic Australian law include?

Statues of fed and state parliaments, all court decisions


What are the fundamental functions of domestic law?

To protect and promote all areas of HR, commit Australia to int treaties and to settle disputes.


How effectively does Aus law implement int HR?

Many areas such as CROC are certainly implemented such as legislations and changes to the children's court, other areas such as refugees and children have been acknowledge as lacking


How well has the High Court protected the implied rights of citizens under the Constitution?

There have been some areas of success in terms of limiting the media rights in terms of making public info. Although, it's quite an 'ad hoc' arrangement.


What are the defined separation of powers?

1. Judiciary
2. Executive
3. Legislature


How can implied rights be recognised and what case?

Through court cases (Lange V ABC case 1997)
eg. freedom of political communication


What does relying on implied rights do?

Creates a v. limited degree protection, if a court case is lost, then you have to pay the costs. It leaves important HR open to interpretation


How does the separation of powers protect HR?

It provides checks and balances btw different parts, holding each accountable. No power can be used arbitrarily which can help to protect the abuse of HR.
----> Case of Dr Mohamed Haneef 2012


What did division of powers do?

Defined powers of the Federal (exclusive) and state (residual) powers.


How does the division of powers prevent the abuse of HR?

it stops all power being centralised at one level, but the Cth overtime has gained more powers


What is the inconsistency provision with regard to the division of powers?

If a law is in conflict, the Cth law prevails over the state law as shown by
the Marriage Equality (Same-sex relationships) Act (ACT) v Fed Gov at the High Court. ACT's law was found to be invalid (Const. gives the power to make laws regarding marriage to the CTH)


What are concurrent powers?

Powers shared by both the Cth and States
E.g. health, insurance, banking


Is statute law superior to common law?

Yes it overrides it


What is a case that shows how eventually the inconsistency provision can help enforce human rights?

Toonen v Australia 1994 . Toonen challenged the Tas gov's laws regarding the criminal offence of homosexuals having intercourse


What did the Toonen v Australia 1994 find?

After complaining to the UN Human Rights Committee it was found the Tas gov's laws were breaching Toonen's rights to privacy in the ICCPR.


What happened when the Tas gov refused to amend legislation in breach of the ICCPR and when the Australian Gov passed the Human Rights (Sexual Conduct) Act?

it resulted in the case of Croome v Tasmania 1997, which found Tas laws inconsistent and thus invalid.


has the fed gov always responded to UN HRC?



What are the first 3 most important HR legislations in Australia?

- 1. Racial Discrimination Act 1975 (Cth)
- 2. Sex Discrimination Act 1984 (Cth)
- 3. Australian Human Rights Commission Act 1986 (Cth)


What are the 2nd 3 most important HR legislations in Australia?

- 4.Disability Discrimination Act 1992 (Cth)
- 5.Age Discrimination Act 2004 (Cth)
- 6.Anti-Discrimination Act 1977 (NSW)


Statute is a powerful tool in human rights protection; however...

o rights laid out in statute law are NOT fixed and can be removed by a later act of parliament if a government chooses so.


o While many of the laws have been adopted in response to the establishment and ratification of international treaties protecting rights, how have states and federal parliaments also protected rights?

by also been creating independently by state or federal parliaments HR protecting legislation


o While many of the laws have been adopted in response to the establishment and ratification of international treaties protecting rights, how have states and federal parliaments also protected rights?

by also been creating independently by state or federal parliaments HR protecting legislation


Explain why common law rights might be less secure than statute law

Common law might be less secure than statute law --->doesn't offer absolute protection of HR as common law rights aren't fixed.


as common law rights aren't fixed, how does this impair the ability of the courts to incorporate int law and protect HR?

This means that rights in the common law, no matter how crucial they may be, can be removed by any act of parliament.


What domestic law prevents prejudice against people due to race, colour, ethnicity, religion, etc.?

- Racial Discrimination Act 1975 (Cth)


What domestic law prevents prevents against bigotry of gender?

- Sex Discrimination Act 1984 (Cth)


What domestic law ensures that people with disabilities have equal opportunities as the rest of us?

Disability Discrimination Act 1992 (Cth)


Examples of 3 famous cases involving human rights:

o Mabo v Queensland 1992
o Toonen v Tasmania
o Lange v Australian Broadcasting


Critically evaluate the role of the High Court in protecting human rights in Australia

The High Court’s methods of interpretation involving human rights have been particularly influential, and occasionally controversial, e.g. Mabo case (1992).
The power of the High Court to protect human rights is critical, especially where judges can be influenced by agreed international standards, where there may be an absence of legislation. Combined with the court’s power to declare legislation inconsistent or invalid, to uphold the rights of the Constitution and to continue to develop the common law, the High Court is arguably the most important protector of human rights in Australia.


What rights does common law enforce?

Presumption of innocence
Right to a fair trial
Doctrine of Precedent
Original and appellate jurisdiction (Right to appeal)


How does the Adversary system link in to common law enforcing HR?

rights of the accused


What important right did common law enforce and recognise in 1992?

Recognition of Customary Native Title to land (Mabo v Qld No.2 (1992))
(rights of ATSI peoples to some Australian lands)


What protections are provided through referendum?

Preventing the Constitution from being arbitrarily changed


What part of the Constitution outlines the inconsistency provision?

Section 109.


How are human rights protected in Australia?

1. The Australian Constitution
2. Common law
3. Statute law
4. Non-interference
5. Courts and tribunals
6. Bill of rights enacted within ACT and Victoria
7. A proposed Australian Charter/Bill of Rights
8. Gov orgs and NGO's, Media


What does Australia voting on an international instrument do?

indicates the nation state agrees with the instrument's principles


What does Australia signing treaties do?

Creates a moral commitment to abide by those articles contained with the international instrument


What does Australia ratifying or acceding an international instrument do?

Creates a legally binding obligation to abide by those articles contained within the international instrument by passing domestic legislation


What does Australia enacting a ratified international instrument do?

It means the legislation has been enacted and its protection enshrined


What are some international treaties that Australia has signed, ratified and enacted to promote and enforce HR that don't fully protect HR?

CEDAW (Don't give universal maternity law)
CROC (detain juveniles and adults in same gaol)
Refugee Convention (non-refoulment clause isn't followed)


Apart from the Constitution's express rights, what other rights does it protect?

Right to access High Court
Presumption of innocence
Freedom of movement


What are some fundamental rights and freedoms that the Constitution fails to protect?

1. Right to life
2. Freedom from torture
3. Right to = before the law
4. Freedom from discrimination/right to the liberty and security of a person


Whilst only the Federal gov can sign international instruments, what can the state governments do?

Incorporate these into their legislation


in terms of protecting international human rights, what is the best way they are protected in NSW?

Common law.
-Historically it didn't protect many HR, but in recent years it has been a strong advocate for HR
-The NSW Constitution protects even fewer rights than Australian Constitution


The NSW Constitution protects even fewer rights than...

The Australian Constitution.


How are HR protected by the Australian Constitution?

-The Const. expressly recognises some HR, incl: right to vote (bc it allows ppl to participate in fed elections)
-Also protects an individ's freedom of religion from gov interference
-Also provides the accused the right to trial by jury for serious offences
-Implied right to freedom f speech recognised by High Court in its interpretation of the Constitution
-Separation of powers bt judiciary, legislature and exec as outlined in Const protects individuals against arbitrary exercise of gov power


Evaluate the effectiveness of common law in promoting and enforcing HR

-Historically a poor advocate
-can be weak as decisions easily overturned by statutory priority
+Can promote and enforce statute protection of rights
+Right to fair trial (while not absolute)
and +presumption of innocence are important common law HR concepts
+Some important HR protections found in the common law


Some important HR protections found in the common law?

-R against self- incrimination
-R to sue for false imprisonment
-presumption of innocence in criminal trials
-presumption that the standard of proof in crim cases is beyond reasonable doubt


how can courts and tribunals be effective in promoting and enforcing HR?

if there is a breach of HR through domestic law it can be reported to appropriate authority and a remedy can then be sought through the courts


Although it can't make legally binding decisions, what does the Australian HR Commission do?

Federally, it is an independent statutory authority that works to protect and promote HR by:
--> examining cases where rights have been violated
--> making Federal HR legislation


What does the NSW Anti-Discrimination Board do?

protects and promote HR by examining cases where rights have been violated


What do parliamentary committees and law reform bodies do to protect HR?

They investigate the protection of HR in Australia and make recommendations for change.


What is an eg. of a parliamentary committee that helps to protect promote HR?

The fed parliament's HR Subcommittee , est in 1991


What is an eg. of a parliamentary committee that helps to protect promote HR?

The fed parliament's HR Subcommittee , est in 1991


What act aims to ensure that all people receive the income necessary to supply themselves with an adequate standard of living?

The Social Security Act 1991 (Cth)


How does non-interference protect HR?

because the law doesn't interfere with the ability to exercise certain HR, eg freedom of movement


Why does common law protect HR negatively?

because it doesn't est +ve HR and it doesn't forbid acts


Despite statue law being increasingly used to provide +ve protection for rights what is an eg of statue law that has limited HR?

Anti-terrorism legislation---> Anti-Terrorism Act (No.2) 2005


What are some implied rights in the Const?

Right to review of a gov action.
Freedom of interstate trade
implied right to freedom of political communication (refer to Lange v Australian Broadcasting Corporation 1997


How has the High Court actually restricted some HR?

Case of McInnes v Queen (1992) established that there was no right to legal representation in Australia despite those having representation having a greater chance of acquittal


what did the High Court decision of Dietrich v R 1992 do?

established that in a serious matter a case could be indefinitely delayed until an accused person acquired legal aid.
It est a right to a fair trial, but not a right to legal rep


What is another High Court case that restricts HR which occurred in 1997, showing that the HC may not necessarily protect HR effectively?

Kruger v Cth (The Stolen Generations Case) 1997, High Court found that there was nothing in the COnst which required = of treatment of all persons and that there wasn't an implied Const. right of due process


What case protected the presumption of innocence in common law?

Woolmington v DPP 1935


In what case did the common law protect the right of appeal after conviction of a criminal offence?

Mallard v R, however appeals are limited in what it can review, it can only take into account new evidence if it is 'compelling' to determine if a retrial should occur


whilst lawyers are supposed to represent their clients, what is their principle responsibility?

They are first officers of the court and must assist the court in administering justice


What did the case of Croome v Tas 1997 establish

right to sexual privacy


Courts and Tribunals: In administrative law what exists in many areas to help protect HR?

Procedures to apply for reviews of internal decisions.


What does the Administrative Decisions Tribunal NSW do?

--can make decisions on freedom of info applications
--Administrative decisions about adoption and disability services
and anti -discrimination cases that weren't resoled through Anti-Discrimination Board.


what does the Refugee Review Tribunal do?

deals with appeals against decisions to cancel or refuse protection visas. It makes a new assessment as to whether or not a person is entitled to 'protection obligations' by Australia due to refugee status


How does criminal law protect HR?

fair trial, presumption of innocence, adversary system,


What does the = Employment Opportunity Cth Authorities Act 1987 (Cth) do?

All fed authorities must have = employment opp for women, ATSI people, disabled people, and those from a non-English speaking background


What do the 6 most important HR legislations respond to?

An increased sensitivity to HR in Australia and int community


what does the Anti-Terrorism Act (No.2) 2005 provide for?

Control orders
Preventative detention
On people


What are the 'control' orders the of Anti-Terrorism Act (No.2) 2005?

given in court and can restrict the movement of ppl within Australia for up to 12 months. Ppl can be made to wear tracking devices and may be restricted from contacting certain people


What is preventive detention in the Anti-Terrorism Act (No.2) 2005?

A person suspected of being about to engage in terrorist activity can be detained in prison for 48 hrs w/o charge. Extensions to this can be granted if the Police investigation is ongoing.


what type of nation is Australia?

A dualist nation


What does being a dualist nation mean?

once an international treaty/document/convention has been signed (ratified) by Australia, it must then be incorporated within Australian law (enacted – legislation must be made/amended containing reference to the action in the treaty).


Will Australia ratifying a treaty automatically result in legislation being altered to comply with and refer to the action in a treaty?

No this will not happen automatically, like in a “monist” system country.


What do our standards reflect?

the development of HR


In what ways are HR protected in Australia through legal measures?

Common law
Statute Law
Bills of Rights (ACT and Vic)
Proposed Bill of Rights
Courts and Tribunals


Ways to remember how HR are protected in Australia?

Sing and
Act Victorious Ballads
Proposed By
Tennis Courts


Sing and
ACT Victorious Ballads
Proposed By
Tennis Courts

Common law
Statute Law
(ACT Vic)Bills of Rights
Proposed Bill of Rights
Tribunals and Courts


What does a lack of a charter of rights show about the effectiveness of the Australian government in promoting and enforcing HR?

It limits it. They rejected a proposal for one in 2010.


What do ATSI peoples still face and struggle for?

discrimination, self-determination, land rights and economic, social and cultural equality


Criticisms of the Native Title Act 1993 (Cth) and its subsequent amendments

limits ability to ATSI people to protect their property rights


the result of the Marriage Equality (Same-sex relationships) Act (ACT) v Fed Gov at the High Court. ACT's law was found to be invalid (Const. gives the power to make laws regarding marriage to the CTH) conveys what provision in the constitution?

inconsistency provision


Section 109 of Constitution

Inconsistency provision

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