Define human rights
While there is no single universally accepted definition of human rights, it can be defined as ‘basic freedoms or standards that promote and uphold the dignity of all people, and are guaranteed by a moral sense of duty or by the law’
Examples of how human rights have developed over time
- First Nations people not recognised in the Australian population count until 1967
- The White Australia police was formally abolished in 1973
- Same-sex sexual activity between men was a crime until the 1970s
- Marriage equality was not recognised in Australia until 2017
Define international treaty
An international treaty is a legally binding agreement between two or more countries. It establishes rules, guidelines and responsibilities of countries and international organisations, but does not govern the behaviour of the country’s citizens. That is the responsibility of domestic law.
Define ratification
Ratification is confirmation by 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 out in the treaty.
The Universal Declaration of Human Rights
Sets out most of the basic human rights that all nations and governments, including Australia, should strive to promote and uphold.
E.g.
- all people are born free and equal in dignity and rights
- everyone is entitled to the same rights and freedom without discrimination of any kind
- everyone has the right to life, liberty and security of person
- no one should be subject to slavery, torture, or cruel or degrading treatment or punishment
Other international treaties or declarations
The Universal Declaration of Human Rights has inspired the creation of more that 80 international treaties, declarations and agreements
E.g.
- Convention relating to the status of refugees
- International convention on the elimination of all forms of racial discrimination
- Convention on the elimination of all forms of discrimination against women
- Convention on the right of the child
- Conventions on the rights of persons with disabilities
- Declarations on the rights of indigenous people
Define international declaration
a non-binding agreement between countries that sets out the aspirations of the parties to the agreement
How are human rights protected in Australia?
Statute law, common law, the Australian Constitution
Examples of rights protected by statute law
- the right to privacy
- the right to security of person
- the right to freedom from discrimination
- the right to vote
The Victorian Charter of Human Rights and Responsibilities
An Act of Parliament that promotes and protects the basic human rights of people who live in Victoria.
What rights are protected in the Human Rights Charter?
The Human Rights Charter outlines 20 basic human rights, including…
- the right to life
- the right to protection from torture and cruel, inhuman or degrading treatment
- freedom of movement
- freedom of though, conscience, religion, and belief
- the right to take part in public life
- the right to recognition and equality before the law
- the right to a fair hearing
- the right to not be tried or punished more than once
- the right to be provided with legal aid if the denial of such assistance would lead to an unfair hearing/trial
- the right to free assistance from an interpreter if necessary
- the right to not be compelled to give evidence against themself or to confess guilt
General limitation clause
The ‘general limitation clause’ is a section of the Human Rights Charter which allows public authorities (e.g. the Victorian Government) to restrict human rights in situations where it is reasonable and justified.
E.g. COVID-19 lockdowns imposed restrictions on freedom of movement
Strengths of statute law in protecting human rights
- Parliament can create new legislation and amend existing statutes to incorporate further human rights, particularly as the views and values of the community changes
- Details, precise and specific, rather than implied
- Generally enforceable and recognised by government organisations
- Parliament can pass laws quickly to protect additional human rights
Weaknesses of statute law in protecting human rights
- Parliament can amend statutes to restrict or cancel existing human rights
- Parliament can include exemptions, limitations or restrictions in statues, so protected human rights are not always absolute
- Statues do not always enable a person to be awarded any damages if their human rights are breached
- Human rights protected by statute law are not as well protected as constitutional rights
How can human rights be protected under common law?
- through the courts establishing new human rights
- through the courts recognising and upholding human rights contained in statute law
- through the courts determining the validity of human rights legislation
Examples of Australian courts establishing or strengthening common law rights
- the right to silence
- the right to a fair trial
- the right to legal representation
- the right of transgender people to marry
- the right to humane treatment when denied liberty
- the right to freedom of movement
- the right of First Nations people to not be denied their connection to their Country
- the right to freedom of thought conscience and religion or belief
Determining the validity of human rights legislation
- Courts have power to declare Acts of Parliament invalid if they are made outside or beyond parliament’s law-making powers (ultra vires)
- the High Court can also declare legislation to be invalid if it breaches a right protected by the Australian Constitution
Codification of common law
Court judgements can be codified by parliament. This means that parliament passes legislation that reinforces and endorses the legal principles establish by a court in its ruling.
Abrogation of common law
Parliament can also abrogate (cancel) human rights that have been established in common law.
However, it cannot override rights established in High Court judgements involving the interpretation of the Australian Constitution.
Strengths of common law in protecting human rights
- courts are independent of parliament and can establish precedent free from political pressures
- courts can make decision to establish human rights in areas where parliament has not established human rights
- courts can infer human rights without needing to consider how those right may need to be limited
- courts can highlight to parliament gaps in the law, leading to parliament updating law
- historically, parliament has not overly interfered with common law rights
Weaknesses of common law in protecting human rights
- not always easy to define/identify
- courts must wait for a case to come before them to be able to declare the existence of human rights
- parliament can abrogate common law rights
- courts are reluctant to recognise certain human rights and leave it to parliament
- judges are limited in applying the law to the case before them and cannot extend their decision to issues not in the dispute
How does the Australian Constitution protect human rights?
- express rights
- implied rights
Define express rights
Define express rights
Name the express rights
- right to free interstate trade and commerce
- right to not be discriminated against by the commonwealth based on state of residence
- right to receive ‘just terms’ when property in acquired by the Commonwealth
- right to trial by jury for Commonwealth indictable offences
- right to freedom of religion
