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Legal Studies > External Exam > Flashcards

External Exam Flashcards

1
Q

Basic Human Right are:

A

Universal – they belong to everybody
Inalienable – they cannot be taken away from us
Indivisible and interdependent – governments should not be able to pick and choose which are respected.

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2
Q

What is the magna carter?

A

An aspirational text created in 1215 that was the first to form human rights. Widely viewed as one of the most important legal documents in the development of modern democracy, the Magna Carta was a crucial turning point in the struggle to establish freedom.

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3
Q

What rights are in the magna carter?

A
  • No new taxes unless a common counsel agrees.
  • All free men have the right to justice and a fair trial with a jury.
  • The monarch doesn’t have absolute power. the law is above all men and applies to everyone equally.
  • All free citizens can own and inherit property.
  • Widows who own property don’t have to re-marry.
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4
Q

What ideas has the magna carter inspired?

A
  • Limits on government
  • The rule of law
  • Justice
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5
Q

What are the needs to have international law?

A
  • Concerns about the horror of war have always existed.

- In the 19th Century a series of international conferences were held to develop rules that should apply during wartime.

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6
Q

What is the Geneva convention

A

The Geneva Conventions and their Additional Protocols are international treaties that contain the most important rules limiting the barbarity of war.
They protect people who do not take part in the fighting (civilians, medics, aid workers) and those who can no longer fight (wounded, sick and shipwrecked troops, prisoners of war).
It’s a moment to celebrate all the lives the conventions have helped save, note the further work that needs to be done and to remind the world of the importance of protecting people from the worst of warfare.
Core of international humanitarian law,

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7
Q

What are the features of International law? (4)

A
  • Isn’t made by a single country.( which means that entities, such as the UN which represent the nations of the world create IL)
  • Cannot be enforced like domestic laws.
  • A nation can ignore or break IL without fear or repercussion, other that diplomatic or economic sanctions.
  • No national legislature, parliament or formal hierarchy of courts.
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8
Q

Define Nation-State or State

A

A country

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9
Q

Define treaty

A

A legal agreement

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10
Q

Define what it means to ratify

A

is a voluntary undertaking by the State to be bound by the terms of a treaty. Generally, at the time the treaty is written.

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11
Q

Define what an accession is

A

is when a state becomes a party to a treaty already negotiated and signed by other states. This can be done any number of years after the treaty was created. This has the same legal effect as ratification.

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12
Q

Define a reservation

A

when a nation-state doesn’t agree to the whole treaty.

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13
Q

Define what it means to be bound

A

willing to follow and abide by a treaty

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14
Q

What are 5 other terms for a treaty?

A

Convention, statute, protocol, charter, or agreement.

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15
Q

Define bi-lateral and multi-lateral

A

Bi-lateral is a treaty between 2 states.
And
Multi-lateral is a treaty between 3 or more states.

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16
Q

Sources of human rights law in Australia

A
  • Not a single source in Australia
  • Does not have a bill of rights as a primary source
  • HR laws (in Australia) are haphazard
  • The international instruments it has agreed to are not always upheld.
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17
Q

Reasons why Australia should have an international bill of rights?

A
  • Equal- entrench rights for all
  • Australian democracy will keep bill of rights on track
  • Slavery & torture- prevents government from over reaching/abusing their power.
  • Prevents further erosion of rights
  • We have the experience now to create a “fool-proof” bill of rights
  • Black and white (ha-ha isn’t that what we are trying to get rid of (stupido))
  • Government creates a representative set of rights that are clear and concise
  • Legislation can be changed at whim- therefore protected
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18
Q

Reasons why Australia shouldn’t have an international bill of rights?

A
  • Rights are already well protected in Australia through domestic legislation.
  • It would be undemocratic and against the rule of law to give unelected judges the power to override the judgment of a parliament.
  • A bill of rights would immediately and continually erode the sovereignty of the legislature.
  • A bill of rights would politicise the judiciary.
  • Doesn’t guarantee a better society
  • Very hard to change when society’s values change
  • Courts would be clogged with claims
  • Difficult to legislate if B of R’s supports ei. Gun control- right to bear arms
  • The future is unknown- B of R’s dictate the future
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19
Q

Why must the commonwealth continually refer to international treaties?

A

To make sure our laws uphold human rights. (although this has not always happened)

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20
Q

In 2010 Australia created a Human Rights framework to consider how our laws do not always uphold human rights. What is the key feature of this framework?

A

Human rights Parliamentary Scrutiny Act 2011

21
Q

What did the scrutiny act aim for?

A

Ensure Commonwealth laws would be consistent with Australia’s HR’s obligations.

22
Q

What are the 2 main aspects of the scrutiny act 2011?

A

First Aspect -Statement of Compatibility.

2nd Aspect – Parliamentary Joint Committee on Human Rights (PJCHR).

23
Q

What are the 7 main international treaties?

A
  • ICCPR
  • ICCESCR
  • CROC
  • UNCAT
  • CEDAW
  • CRPD
  • ICERD
24
Q

What does ICCPR stand for?

A

International convention of civil and political rights

25
Q

What does ICESCR stand for?

A

International convention of economic, social and cultural rights

26
Q

What does ICERD stand for?

A

International Convention on the Elimination of all Forms of Racial Discrimination

27
Q

What does CEDAW stand for?

A

Convention on the Elimination of All Forms of Discrimination against Women

28
Q

What does UNCAT stand for?

A

Convention against torture and other cruel and inhuman or degrading treatment or punishment

29
Q

What does CRPD stand for?

A

Convention on the rights of the child

30
Q

What does CROC stand for?

A

Convention on the rights of persons with disabilities

31
Q

What is common law?

A

Laws developed by the decisions of judges.

32
Q

List five common law rights

A
  • Right to a court hearing
  • Right to compensation for property resumed by the government
  • The right to refuse access to information given to a lawyer in confidence as a client
  • The right to challenge a penalty or sentence imposed by a court
  • The right to sue governments
  • The right to sue for interference with your property rights
  • The right to worship without interference
  • The right to legal representation when accused of a serious crime
  • The right not to be detained or imprisoned unlawfully
  • The right to a fair hearing.
33
Q

What rights are protected by the constitution? list 3

A
  • Right to just compensation (Section 51)
  • Right to trial by jury
  • The right to free trade between the states of Australia
  • The right to freedom of religion
  • The right against discrimination on the basis of out of state residence
34
Q

What is a peice of restricting domestic law?

A

Weapons ammendment act- due to the port arthr massacre.

35
Q

what happens when a state doesn’t agree with all the terms in a treaty?

A
  • States don’t have to agree to every statement in a treaty.
  • Reservations and Understandings are statements made by State Parties at the end of a Convention, which limit some of their obligations under the terms of the Convention.
  • The Australian Government has made reservations to specific Articles in Conventions where the requirement of the Article conflicts with an area of domestic law.
36
Q

How to make international human rights treaties apart of domestic law

A
  • Each State must create legislation that incorporates the articles of Conventions that have been ratified. This process can differ according to each State’s legal system.
  • In Australia, federal legislation needs to be created by parliament for a convention to be binding in Australia. Depending on the area of law, Australian states and territories may also be required to introduce relevant legislation.
  • Australia became part of the convention on refugees in 1954. Federal parliament then created law that bound it to the agreement. This was in 1958 - The Migration Act - it protected refugees from being returned to countries where they would be persecuted.
37
Q

What are 3 types of unlawful discrimination?

A
  • Sex
  • Relationship
  • Pregnancy
  • Parental status
  • Breastfeeding
  • Age
  • Race
  • Impairment
  • Religious belief or activity
  • Political belief
  • Trade union activity
  • Lawful sexual activity
  • Gender identity
  • Family responsibilities
38
Q

What is the purpose of the committee on the elimination of racial discrimination? (CERD)

A
  • To assist in giving effect to the Convention, an international committee was established to monitor each State’s compliance with CERD’s articles.
  • This committee is made up of 18 independent experts from countries across the world.
  • Every country which has ratified the Convention must submit a biennial report to the CERD on the legislative, judicial, administrative or other measures it has taken to give effect to the Convention.
  • The CERD Committee meets in Geneva, Switzerland and ordinarily holds two sessions a year, each being 3 weeks in duration.
39
Q

What are some issues the CERD committee have identified in Australia?

A
  • Aboriginal and Torres Strait Islanders be recognised as First Nations Peoples.
  • Addressing the disproportionate outcomes suffered by these people
  • Appointment of a Race Discrimination Commissioner
  • Reviewing mandatory detention regime.
  • Expressed concerns about an increase in expressions of racism, racial discrimination and xenophobia in public.
40
Q

What is 18c of the discrimination act?

A

Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
“Public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

41
Q

Who does the burden of proof lay on a in terms with proving racism?

A

The complainant

42
Q

All courts used through this unit

A

QCAT or QIRC, Magistrates, district, supreme, court of appeal, high, AHRC, HRC, ICC, ICJ

43
Q

What is the role of the federal court of Australia (high court)/ what does it have jurisdiction over?

A 
Jurisdiction over Australia 
The Court's jurisdiction is broad, covering almost all civil matters arising under Australian federal law and some summary and indictable criminal matters. The Court also hears appeals on questions of law from the Administrative Appeals Tribunal.
Not been dealt with the AHRC
Bankruptcy
Fair work
Trade practices
44
Q

What is lobbying?

A

Lobbying is the act of as trying to influence a politician or public official on an issue.

45
Q

What are the problems with lobbying?

A

Poor representation, Contracts, lack of enforcement, when PM finish their time. Companies use them to fast track.

46
Q

What is the problem with 18c?

A

The word “offend” is too broad. impinges onto human rights.

47
Q

What human right impinges are in 18c?

A
  • Free speech
  • Comedians
  • Cancel culture
  • Reasonable person test
  • Different tolerance levels
  • Unintentional
48
Q

What

A

?

Legal Studies (1 decks)

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