Human rights in Australia and the US

Question 1

Maximalist vs minimalist constitution

Answer 1

Australia is minimalist as it relies on conventions
USA is maximalist Maximalist as there are no conventions meaning the supreme court is very powerful as they can interpret anything in the detailed constitution- problematic as judges are appointed FOR LIFE and not elected by the people (6 conservative, 3 progressive)

Question 2

Constitutional rights in Australia vs US

Answer 2

Australia- five express rights
US- 10 bill of rights (1st- freedoms of religion, speech, press, assembly, 2nd- right to bear arms, fifth- right to silence)

Question 3

Implied right of freedom of political communication

Answer 3

Validity of the Political Broadcasts and Political Disclosures Act and whether it inhibited political communication necessary for democracy to function
High court ruled it was unconstitutional as it went against the implied freedom of political communication (s7 and s24 stating that parliament is directly elected by the people)

Question 4

Overturning of Roe v Wade

Answer 4

In 1973, High Court ruled that access to abortion was a constitutional right and therefore States could not ban it, Once overturned, States could make their own rulings (10th amendment), 14 States have near-total bans and 6 others have limited access (time frame), Doctors can lose their license, patients can be fined and face jail time

Question 5

Example of first amendment rights

Answer 5

2023- Lorie Smith, a web designer, said she was deterred from expanding her graphic design business to wedding websites as she would have to service queer couples arguing this went against religious freedoms, High Court ruled that freedom of speech was being infringed

Question 6

Judicial supremacy

Answer 6

Reliable protection because courts are independent, courts hold lots of power

Question 7

Parliamentarianism

Answer 7

Power to protect rights is in parliament

Question 8

Constrained parliamentarianism

Answer 8

Parliament is limited in ability to protect rights, Westminster system- executive dominance constrains parliamentarism

Question 9

Key statues in Australia

Answer 9

Racial Discrimination Act 1975, Sex discrimination Act 1983, Disability Discrimination Act 1992, Age discrimination act 2004, Crimes (torture) Act 1988, Human Rights Acts: ACT 2004, Vic 2006, QLD 2019

Question 10

Key statues in the USA

Answer 10

Civil Rights Act 1964, Americans with Disabilities Act 1990, Equality Act 2019 (passed in House but not Senate)

Question 11

Racial discrimination act

Answer 11

Unlawful to discriminate against people on the basis of race, colour, descent or national or ethnic origin, Could be seen to be limiting freedom of speech

Question 12

Human rights commission 2011

Answer 12

Doesn’t explicitly protect rights, Educates organizations about rights, Tied with the Attorney general, Decisions aren’t binding

Question 13

Civil Rights Act 1964

Answer 13

Prohibits discrimination on the basis of race, color, religion, sex or national origin

Question 14

Common law protection in Australia and the US

Answer 14

Doctrine of precedent- governs creation and evolution of common law, courts can override common law, US has elevated some legal rights from common law to constitutional status (E.g 5th and 6th amendment)

Question 15

Key international treaties Australia has agreed to

Answer 15

Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Rights of Persons with Disabilities, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Question 16

Key treaties agreed to by the US

Answer 16

Hasn’t signed any key UN human rights treaties and covenants since 2002 (1/2 countries who have not signed the Convention on the Rights of the Child)

Question 17

Influence of international law in courts

Answer 17

Can influence judges if there are gaps in common law or where Australian statutes are unclear, Optional protocol- opens international remedies to Australian individuals, provide citizens legal rights to communicate their human rights concerns to international bodies, Legal actions can be brought to the International Criminal Court which hears cases concerning crimes against humanity and other serious human rights abuses

Question 18

Issues with international law in Australia and the US

Answer 18

Aus- without legislation, isn’t legally binding
US- Self-executing- don’t need Congress to pass legislation to give them effect

Question 19

Role of the human rights commission and PJCHR

Answer 19

Established a Parliamentary Joint Committee on Human Rights (PJCHR) Evaluates legislation for compliance with human rights

Question 20

Strengths of protecting the rights of First Nations peoples

Answer 20

Racial discrimination act 1975, Declaration on the Rights of Indigenous Peoples was adopted by the UN in September 2007 and the Aus Gov announced their support in 2009, 11 Indigenous people in parliament (nearly 5%)

Question 21

Issues with the protection of First Nations peoples

Answer 21

8 Indigenous people died in custody during 2021-2022 which has not been seen since 2016-2017, Every 4 years Australia has to prepare a report and present it to United Nations Committee against Torture, November 15th and 16th- Australia appeared before the committee
Committee published a report noting there is still work to be done regarding over-incarceration of Indigenous people, deaths in custody and raising the age of criminal responsibility

Question 22

Improving the right protection of First Nations people

Answer 22

In 2023 Louise Taylor became the first Indigenous women to be appointed to ACT’s supreme court, About raising the age of criminal responsibility from 10 to 14, Currently goes against article 9 and 37 in the UN

Question 23

Threat to the protection of the rights of First Nations people

Answer 23

Interpreter system in NT and WA doesn’t meet the needs of Indigenous people meaning many plead guilty charges they don’t understand, UN Human Rights Committee found that Australia was violating Indegenous peoples rights to enjoy their culture and be free from inteferences in their private life by not adequatly protecting them against climate change, Victorian coroner called for a reform of bail laws after Veronica Nelson, an Indigenous person, died in her cell from a condition that could have been bettered if the staff had provided adequate medical screening and recommended hospitalisation

Question 24

Purpose of statutory bills of rights in Australia

Answer 24

Permit courts to declare laws or policies inconsistent with human rights, but not strike laws or policies down

Question 25

Advantages of state and territory bills of rights

Answer 25

Improve government service delivery, increased awareness of human rights amongst public servants and the public (human rights training for personnel in Gov agencies), audits by the Human Rights Commission lead to improvements (E.g improvement in treatment of women prisoners in Victoria)

Question 26

Disadvantages of state and territory bills

Answer 26

Give too much power to judges who are unaccountable officials, courts can review human rights, focus on prevention and not remedies, can’t be brought directly to court (must ‘piggyback’ complaint on another dispute

Question 27

Relationship between separation of powers and statutory bills of rights in Australia

Answer 27

Judicial independence means the courts can fairly review and keep parliament accountable to statutory bills of rights passed. However, the courts can’t override the bill

Question 28

Issues with human rights protection in the US

Answer 28

Income inequality increased in 2021- failing to enact permanent structural reforms (E.g Child Tax Credit was not renewed in Dec 2021 and pushed 3.7 million children into poverty), Worlds highest incarceration rate (nearly 2 million people held in a day)- people of colour vastly over-represented, Many methods of electronic surveillance to be abusive and unnecessary, called to ban ankle monitors and any devices that provide continuous location tracking