Unit 2 AOS 3 Flashcards
What are rights?
Rights are legal, social, or ethical principles of freedom or entitlement. They are fundamental normative rules about what is allowed of people or owed according to a legal system.
How are rights protected under statute law?
Parliament can pass legislation to change a right in statute law
What is a treaty?
a formal document signed by countries with the intention of following law set out in document
What is a declaration?
a non binding agreement between countries setting out aspirations that are agreed upon
What is a charter?
a document that sets out basic rights and freedoms of the citizens in a state or country
Ways rights are protected under common law
Directly, ultra vires, codification, abrogation
How are rights protected directly through precedent
Judges play a role in protecting rights
-Precedent
-Statutory Interpretation
how are rights protected through ultra vires?
The courts can declare acts of parliament invalid when made outside or beyond the parliaments law making power.
how are rights protected through codification?
Courts judgments that establish human rights may be codified by Parliament.
how are rights protected through abrogation?
parliament can cancel human rights established in common law
What is the Australian Constitution?
It is the most important document in the legal system that governs and outlines the structure and creation of law-making powers as well as establishing human rights.
How can the Australian Constitution protect rights?
Through:
Express Rights
Implied rights
Structured rights
What are express rights?
Express rights are physically written in the constitution and therefore are rights that all Australian citizens are entitled to.
What are implied rights?
Implied rights are not explicitly written in the constitution but rather the judges have to interpret the words of the constitution and decide that it is implied that the right/s exists.
What are structured rights?
Structural rights are established by the Commonwealth through mechanisms that indirectly protect peoples rights.
Strengths of the Australian Constitution protecting rights
Express rights cannot be changed (except through referendums)
The implied freedom of political communication shows that rights can be implied or by the High Court even though it’s not stated.
All rights protected by the Constitution are fully enforceable through the high courts.
The High Court can interpret the meaning of the words in the Constitution- keep pace with changes in the community as well as the values.
Weaknesses of the Australian Constitution protecting rights
Rights in the Constitution are difficult to change
Very few rights are expressly protected by the Constitution, and those that are have a very limited scope.
It is expensive and time-consuming to take a case to the High Court and challenge a statute that breaches a right in the constitution
The High Court cannot interpret the meaning of the Constitution and declare an infringement of rights until a case is brought before them.
Possible reforms to the protection of rights
Introduction of a national charter or bill of rights
Amendments of legislation and systems to provide increased protection to minorities
Increasing availability to legal aid and assistance
Strengths of introducing a National Charter or Bill of Rights
Strengthen the protection of rights in AUs- clear statement of express rights
Government are held more accountable- improvement of rights
Improve Australia’s international image- previous criticisms in relation to asylums and poor human rights
Weaknesses of introducing a National Charter or Bill of Rights
Basic rights are adequately protected by the current acts of parliament
Commonwealth has passed the human rights ac which requires all proposed legislation to be checked for compatibility in relation to international treaties
Australia has already ratified major international laws which provides protection of vast range of human rights.
Human rights and responsibility charter
is a Victorian law that details the basic rights, freedoms, and responsibilities of all people in Vic. It focuses on the relationship between the government and the people it serves.
there are 20 basic human rights addressed inb the vic charter
- right to safety
strengths of common law protecting rights?
The courts and judges are independent of parl’ and establish precedent free from political pressures
Courts and judges are able to make decisions and establish rights in areas where the parl’ has not
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
weaknesses of common law protecting rights?
Common law rights are not always easy to define or identify
Courts must wait for a case to come before them to be able to declare the existence of rights
Judges are limited in applying the law to the case that is before them, they cannot simply ‘create rights’ in any dispute
strengths of statute law protecting rights?
Parliament can amend statutes and charters to incorporate further rights, 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 enforceable and need to be recognised by government organisations
