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From Flashcardlet > LEGAL STUDIES UNIT 2 CHAPTER 07- A Question Of Rights > Flashcards

LEGAL STUDIES UNIT 2 CHAPTER 07- A Question Of Rights Flashcards

0
Q

❓❓❓where do rights come from?

A

-rights are officially recognised as values by the world when the United Nations formed

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1
Q

❓❓❓define ‘human rights’

A

-the rights and freedoms that we all have

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2
Q

❓❓❓what four values are human rights based on?

A
  • dignity
  • justice
  • respect
  • equality
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3
Q

❓❓❓when was the United Nations formed?

A

-1945, the year that WWII ended

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4
Q

❓❓❓what are three aims of the United Nations?

A
  • promoting human rights
  • maintaining international peace
  • reducing poverty
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5
Q

❓❓❓name three countries involved in the writing of the declaration of human rights

A

-Australia, Chile, China, USA, UK, Russia, France

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6
Q

❓❓❓who created the Universal Declaration Of Human Rights, and when was it created?

A

-The United Nations, in 1948

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7
Q

❓❓❓how many rights does the Universal Declaration Of Human Rights contain?

A

-30

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8
Q

❓❓❓what are the six ways human rights are protected in Australia?

A

1) acts supporting international treaties e.g. UDHR
2) five rights entrenched in the constitution
3) one implied right that is entrenched in the constitution
4) acts of parliament
5) common law (statute law)
6) Victoria’s “Charter of Human Rights and Responsibilities”

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9
Q

☀️☀️☀️STATUTE LAW (common law) (ways human rights are protected in Australia)

A
  • principles set out in treaties are reflected in federal and/or state levels
  • commonwealth legislation = protects people from discrimination on a range of grounds and from many other abuses of their human rights

Laws include:

  • racial discrimination act 1975
  • sex discrimination act 1984
  • privacy act 1988
  • age discrimination act 2004
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10
Q

☀️☀️☀️CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES (ways that human rights are protected in Australia)

A

-the Act was passed 25 July 2006
-sets out a range of civil and political rights
-Victoria was the first state in Australia to pass it
-it is an Act of Parliament and therefore can be changed by parliament
(Constitutional rights CANNOT be changer easily by parliament)

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11
Q

❓❓❓what are two international bodies/treaties protecting human rights?

A

1) Universal Declaration of Human Rights

2) International Covenant on Civil and Political Rights (ICCPR)

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12
Q

❓❓❓what are three rights that the International Covenant of Civil and Political Rights includes?

A
  • the right to life
  • the right to privacy
  • the rights of the child
  • the rights of minorities
  • the rights to liberty and security
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13
Q

☀️☀️☀️INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

A
  • 1976, 28 years after universal declaration
  • countries who sign this guarantee to protect the rights it covers for any individual within their territory without any ‘distinction’ or discrimination
  • signatories promise to provide an ‘effective remedy’ for violation of these rights
  • if domestic remedies are unsatisfactory, a person can go the United Nations Human Rights committee to be heard
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14
Q

❓❓❓define a Test Case

A

-the case that gives. Court an opportunity to make a change in law, or to clearly state where the law stands

☀️☀️☀️

  • establishes a new legal right or principle
  • ratio decidendi of this case is then a precedent to similar cases in the future
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15
Q

❓❓❓define Standing

A

-means you are personally affected by the action of another person or group, and suffered as a result

☀️☀️☀️
-a person needs standing in order to launch a test case (or any case)

16
Q

☀️☀️☀️JOHN MCBAIN

A
  • doctor
  • single woman wanted IVF (Leesa Meldrum)
  • Victorian Infertility Act stated that a woman must be married or in a de facto relationship to receive IVF treatment
  • Commonwealth Sex Discrimination Act stated that it is unlawful to refuse services to a person based on marital status
  • due to the constitution, federal law overrules state law
17
Q

☀️☀️☀️JOHN MCBAIN AND THE FEDERAL COURT

A
  • John applied to federal court for a ruling that states that the Victorian law was inconsistent with the Sex Discrimination Act
  • state tap dance federal governments didn’t argue for or against the case. Instead, the Catholic Church appeared as ‘amici curiae’ (friends of the court) and argued against Dr McBain
  • court held that he couldn’t follow both laws at the same time and therefore commonwealth law prevails and he is permitted to provide services to Leesa Meldrum
18
Q

☀️☀️☀️EDWARD KOIKI MABO (Eddie)

A
  • indigenous Australian born on Murray island
  • when mum died, he was adopted by uncle Benny Mabo
  • had alcohol difficulties, was exiled from Torres Strait Islands for 15 years
  • involved in campaign for Aboriginal Voting rights (granted in 1967 referendum)
  • saw that his people were suffering injustices and were ‘haunted by the empty land lie’
19
Q

☀️☀️☀️LAND RIGHTS

A
  • terra nulius meant that indigenous Australians had no claim to property they had lived on for tens of thousands of years
  • “native title” = pre-existing ownership or custodianship of the land
  • first case*
  • Milirrpum vs. Nabalco P/L (1971)
  • government peninsula people fought against a bauxite mine on their traditional lands. Court held that native title didn’t form part of Australian law
20
Q

☀️☀️☀️MABO IN THE 70’s

A
  • took advantage of increased funding for aboriginal programs under Whitlan government and eventually became a full time community activist
  • worked at James Cook upUniversity in Townsville as a gardener, using the library to build his knowledge
  • land rights conference, 1981*
  • land rights was a major issue in aboriginal and islander politics
  • aboriginal land is inherited by the male descendants
21
Q

❓❓❓define terra nulius

A

-land that is not subject to the sovereignty of any state (“nobody’s land”)

22
Q

☀️☀️☀️MABO CASE

A
  • writ and statement of claim filed in 1982 to high court
  • claimed customary (traditional) ownership of ancestral lands on Murray Island and therefore challenged terra nulius doctrine
  • financing was a difficulty. Mabo did fundraising (public speaking etc), eventually received a $50K grant from the commonwealth government, lawyers worked pro bono (for free) so case could go ahead
23
Q

☀️☀️☀️MABO CASE- A SHIFT IN LOCATION

A
  • 1986= Chief Justice Gibbs of the high court orders that the Queensland Supreme Court conducts the hearings in their behalf (to save time and money)
  • 13/10/86= proceedings commence in Brisbane. Mabo was cross examined for 10 days by the Queensland government’s lawyers
24
Q

☀️☀️☀️MANO CASE- KEY LEGAL ARGUEMENTS

A

Plaintiff fought two entrenched principles of the Australian legal system:

  • terra nulius
  • sovereignty over all the land in Australia (the idea that the government owns all the land)
25
Q

☀️☀️☀️MABO CASE- CONTINUED

A
  • May 1989= court goes to Murray Island to hear evidence
  • two plaintiffs left= Mabo and James Rice
  • Celuia Salee died, David and Sam Passi withdrew
  • Queensland court hearings were completed on 6/9/1989, judges started deciphering 44 witnesses conflicting evidence. 3,464 pages of transcript and over 330 exhibits to consider
26
Q

☀️☀️☀️MABO CASE- DECISION FROM THE QUEENSLAND COURT

A
  • Queensland court needed to hear evidence and determine facts, then report this to the high court to decide the matters of the law
  • Queensland court found Mabo’s claims should be denied, but he was still able to go to the high court and argue the matters of law
27
Q

☀️☀️☀️MABO CASE- DECISION FROM THE HIGH COURT

A
  • majority of 6 votes to 1 found that under the Australian law, indigenous people have rights to land, and that these rights had existed before colonisation and still can exist. This right is called “native title”
  • this finding overturned the idea that when captain Cook arrived in 1788 the land was Terra Nulius
28
Q

☀️☀️☀️WHEN CAN NATIVE TITLE EXIST?

A
  • where aboriginal and Torres Strait Island people had maintained their connection with the land through the years of European settlement. Native title can be extinguished if the group ceased to acknowledged traditional laws and lost connection with the land
  • parliaments can extinguish native title

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