Rights

Question 1

What is a right?

Answer 1

• A right is a moral entitlement to have or do something
• Right Acton is the promotion of respect, dignity, equality and justice.
• Rights are the protection of basic freedoms.

Question 2

In democratic societies, these basic freedoms include things like:

Answer 2

• the right to life
• the right to access clean water, food and shelter
• freedom from slavery, cruel punishment and discrimination
• freedom of speech and religion
• the right to a fair and unbiased legal system
• the right to vote.

Question 3

The rights that Australia protects are often influenced by ….

Answer 3

The rights that Australia protects are often influenced by international declarations and treaties such as the Universal Declaration of Human Rights, created by the United Nations in December 1948 after the end of World War II.

Question 4

• All Australians are entitled to five fundamental freedoms.

Answer 4

1. freedom of speech – being free, subject to some legal restrictions, to speak or write about any topic, including criticising the government without fear of being arrested, provided the remarks are true and do not cause harm
2. freedom of association – being free to join any lawful group or organisation (including political parties or trade unions) to discuss and debate views
3. freedom of assembly – being free to meet together with other people in private and public spaces, including meeting in groups to peacefully demonstrate for a change in the law or protest against government policies
4. freedom of religion – being free to practise any lawful religion and not have any religion imposed upon them by the Commonwealth Government
5. freedom of movement – generally being free to move from one state or territory to another and able to leave and enter Australia at any time.

Question 5

How does Australia protect rights?

• statute law

Answer 5

The Commonwealth, state and territory parliaments have passed Acts of Parliament (legislation) to protect a wide range of rights, including passing legislation to uphold international treaties and, in the case of Victoria and the Australian Capital Territory, passing a specific human rights legislation to ensure the protection of basic human rights within those states or territories

Question 6

How does Australia protect rights?

- common law

Answer 6

– Over the years the courts have enforced various rights in their judgments and precedents that are now commonly known such as the right to silence (the general right of an accused not to be required to answer police questions or give evidence, and be subject to cross- examination, during a trial) and the right to a fair trial

Question 7

How does Australia protect rights?

the Australian Constitution

Answer 7

– The Australian Constitution protects a limited number of rights of Australian people.

Question 8

How does Australia protect rights?

4x

Answer 8

• Statute law
• Charter of Human Rights
• Common law
• Australian Constitution

Question 9

mian purpose of the Charter of Human Rights and Responsibilities Act 2006 (Vic), known as the Human Rights Charter.

Answer 9

• The Charter of Human Rights and Responsibilities Act 2006 (Vic). Its main purpose is to protect and promote human rights

Question 10

1. The right to privacy

Answer 10

Various acts regulates the use, storage and disclosure of private information by the government and private organisations.

Question 11

EXAMPLES OF LEGISLATION THAT PROTECTS The right to privacy

Answer 11

• Freedom of Information Act 1982 (Vic)
• Information Privacy Act 2000 (Vic)
• Privacy and Data Protection Act 2014 (Vic)
• Privacy Act 1988 (Cth)
• Freedom of Information Act 1982 (Cth)

Question 12

2. The right to security of person

Answer 12

Many acts protect the right of Australian citizens to feel secure and safe including legislation that defines and prohibits crime, outlines minimum and maximum sanctions for criminal offenders and aims to prevent and reduce the risk of terrorism.

Question 13

EXAMPLES OF LEGISLATION THAT PROTECTS The right to security of person

Answer 13

• Crimes Act 1958 (Vic)
• Sentencing Act 1991 (Vic)
• Family Violence Protection Act 2008 (Vic)
• Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth)
• Terrorism (Community Protection) Act 2003 (Vic)
• Road Safety Act 1986 (Vic)
• Child Wellbeing and Safety Act 2005 (Vic)
• Crimes Act 1914 (Cth)

Question 14

3. The right to freedom from discrimination

Answer 14

A range of acts protect individuals from being discriminated against on the basis of race, religion, ethnicity, sex, sexual orientation, gender identity, age, disability and other characteristics in a range of areas including the workplace, schools, accommodation, sporting and religious organisations and the like

Question 15

EXAMPLES OF LEGISLATION THAT PROTECTS The right to freedom from discrimination

Answer 15

• Age Discrimination Act 2004 (Cth)
• Sex Discrimination Act 1984 (Cth)
• Australian Human Rights Commission Act 1986 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Racial Discrimination Act 1975 (Cth)
• Racial and Religious Tolerance Act 2001 (Vic)
• Equal Opportunity Act 2010 (Vic)

Question 16

4. The right to vote

Answer 16

Two acts protect the rights of Australian citizens to vote in elections

Question 17

EXAMPLES OF LEGISLATION THAT PROTECTS The right to vote

Answer 17

Commonwealth Electoral Act 1918 (Cth)

• Electoral Act 2002 (Vic)

Question 18

What is one problem associated with rights being protected by Acts of Parliament?

Answer 18

• These rights are not permanently guaranteed. That is, as the supreme law-making body, parliament can always pass legislation to change or abrogate (cancel) an existing right that is protected by statute law.

Question 19

signatory :

Answer 19

a state or organisation that has signed an international treaty to demonstrate a nation’s intent to adopt the treaty and incorporate it into their law

Question 20

The chatter outlines basic rights that belong to the Victorian people – but not limited to the right to

Answer 20

life
• protection from torture and cruel, inhuman or degrading treatment
• freedom of movement (e.g. people who live lawfully in the state have the right to leave and return to the state whenever they desire and can choose where they live)
• freedom of thought, conscience, religion and belief (e.g. people are free to hold their own beliefs and practise a religion of their choice)
• take part in public life (e.g. people have the right to vote or run as a candidate in state or local government elections).

Question 21

In regard to our criminal justice system the chatter protects the right to

Answer 21

• Recognition and equality before the law – every person must be regarded as equal before the law, is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination
• A fair hearing – a person charged with a criminal offence or a party to a civil proceeding has the right to have their proceeding decided by a competent, independent and impartial court or tribunal. This includes having the right to a fair and public hearing, although in some circumstances a court or tribunal may lawfully exclude members of media organisations or other persons or the general public
• not to be tried or punished more than once – a person must not be tried or punished more than once for an offence for which he or she has already been finally convicted or acquitted in accordance with law.

Question 22

Victorians charged with a criminal offence are entitled to minimal guarantees

Answer 22

• be provided with legal aid if the denial of such assistance would lead to an unfair hearing or trial (provided the accused meets the eligibility criteria)
• the free assistance of an interpreter if necessary
• not be compelled to testify against himself or herself (i.e. the right to silence) or to confess guilt.
• Have the right to appeal their convition to a higher court.

Question 23

Strengths of statue law and the human rights chatter

Answer 23

• Parliament can amend statutes and charters to incorporate further rights, particularly as society changes
• Statutes and charters are often detailed and precise, and protect human rights specifically, rather than being implied
• Rights contained in statutes are generally enforceable and need to be recognised by government organisations
• Parliament does have the ability to pass laws quickly if there is a need to quickly protect additional rights

Question 24

Weaknesses of statue law and the human rights chatter

Answer 24

• Because parliament is the supreme law- making body, it can amend statutes and charters, so rights may become limited or no longer exist
• Parliament can include limitations or restrictions in statutes or charters so protected rights are not always absolute
• Statutes and charters do not always enable a person to be awarded any damages in the event their rights are breached
• The rights protected in statute law and charters are not as well protected as rights contained in a constitution, as constitutional rights can only be altered or removed with public approval

Question 25

Common law rights

Answer 25

• the right to silence (i.e. the general right of an accused not to have to answer police questions or give evidence and be subject to cross-examination during a trial, to protect them against self-incrimination)
• the right to a fair trial to the extent that a court may stay (i.e. stop) a trial from proceeding if it considers it will result in an unfair trial
• the right to freedom of movement
• the right to a limited freedom of speech.

Question 26

Strengths of common law

Answer 26

• The courts and judges are independent of parliament and can establish precedent free from political pressures
• Courts and judges are able to make decisions to establish rights in areas where the parliament has not
• The courts are able to infer rights without the need to consider how those rights may need to be limited
  Courts are able to highlight to parliament gaps in the law that protect rights, which may encourage parliament to change the law to further protect rights
• Historically, courts have been able to protect rights and parliament has not overly interfered with those common law rights by abrogating them
• overly interfered with those common law rights by abrogating them

Question 27

Weaknesses of common law

Answer 27

Common law rights are not always easy to define or identify (as opposed to statutory rights)
Courts must wait for a case to come before them to be able to declare the existence of rights
Parliament, as the supreme law-making body, can abrogate common law rights
Often judges are reluctant to recognise certain rights (such as the right to privacy), leaving it up to parliament to protect those rights
Judges are limited in applying the law to the case that is before them. They cannot simply ‘create rights’ in any dispute

Question 28

Why is the Australian Constitution important?

Answer 28

• It outlines how Australia is to be governed.

Question 29

The Constitution protects the rights of the Australian people in three main ways, being through:

Answer 29

• express rights
• implied rights (i.e. indirectly protected through the text or structure of the Constitution).
• rights in the Constitution’s structure.

Question 30

Express rights:

Answer 30

rights that are stated in the Australian Constitution. Express rights are entrenched, meaning they can only be changed by referendum

Question 31

The five express rights protected in the Australian Constitution are the right to:

Answer 31

1. Right to receive ‘just terms’ when property is acquired by the Commonwealth
2. Right to free interstate trade and commerce
3. Right to not be discriminated against by the Commonwealth based on state of residence
4. Right to freedom of religion
5. Right to trial by jury for indictable Commonwealth offences

Question 32

free interstate trade and commerce (Section 92)

Answer 32

this right prevents parliament from treating interstate trade differently between states. It provides freedom of movement between states, without burden or hindrance. For example, it restricts imposing taxes on goods moving from Victoria to New South Wales

Question 33

not be discriminated against by the Commonwealth on the basis of the state where you reside (Section 117)

Answer 33

it is unlawful for the Commonwealth to discriminate against someone based on the state in which they live. This means, for example, that a resident of New South Wales in Victoria cannot be subject to a law that would make them in a worse position than if they were from Victoria. However, the High Court has said that states can favour their own residents in limited

Question 34

receive ‘just terms’ when property is acquired by the Commonwealth (Section 51(xxxi))

Answer 34

this means that the Commonwealth must pay fair and reasonable compensation for property that they compulsorily buy. The Commonwealth is only able to acquire or obtain property for a purpose or area for which it has the power to make laws (e.g. for airports)

Question 35

trial by jury for indictable Commonwealth offences (Section 80)

Answer 35

this provides citizens with the limited right to trial by jury, as it is guaranteed for indictable (or serious) Commonwealth offences (although most indictable offences are state offences)

Question 36

A freedom of religion (though limited) (Section 116)

Answer 36

– provides citizens with a limited right to freedom of religion.

Question 37

implied rights

Answer 37

rights not expressly stated in the Australian Constitution but are considered to exist through interpretation by the High Court
The High Court Justices can decide that a word or phrase within the Constitution implies that a right exists even though it might not be explicitly stated.

Question 38

separation of powers

Answer 38

a principle established by the Australian Constitution that ensures the three powers of our parliamentary system (i.e. executive power, legislative power and judicial power) remain separate. This principle provides a set of checks and balances to ensure that no single body has the power to make, implement, apply and interpret the law

Question 39

If the High Court declares legislation invalid, the parliament’s options are to:

Answer 39

• amend the legislation so that the unconstitutional provisions (or sections) are removed from it
• try to change the Constitution by holding a referendum or public vote, which in accordance with
Section 128 of the Constitution is the only way its actual wording can be changed.

Question 40

Strengths of the Australian Constitution

Answer 40

• Express rights cannot be changed unless through a referendum; that is, with the support of the community via a public vote
• The implied freedom of political communication shows that rights can be interpreted and clarified by the High Court
• There are some rights that are indirectly protected through the text and structure of the Constitution, such as the right of the people to elect the parliament which is indirectly protected by the principle of representative government
• All rights protected by the Constitution are fully enforceable through the High Court and any statute that is found to breach those rights can be declared invalid
• The courts can interpret the meaning of the words and phrases in the Constitution so it can keep pace with changes in community values and remain relevant over time

Question 41

weaknesses of the Australian Constitution

Answer 41

• Rights contained in the Constitution are difficult to change due to the referendum process. Rights may therefore lag behind attitude changes
• Very few rights are expressly protected under the Constitution
• The rights that are expressly protected in the Constitution are very limited in scope, such as the limited right to trial by jury
• It is expensive and time-consuming to take a case to the High Court to challenge a statute that breaches a right
• The High Court cannot interpret the meaning of the Constitution and declare an infringement of rights until a case is brought before it

Question 42

The freedom of political communication:

Answer 42

• This right is not a general right to free speech, but only a right to free communication on matters relating to political issues.
• the High Court has found that the implied freedom of political communication can be restricted when it is reasonable to do so (for example, if it offends against a person’s privacy, or if the communication ruins a person’s reputation).