Unit 2 AOS 3

Question 1

a right

Answer 1

a moral or legal entitlement to have or do something

Question 2

ways rights are protected in Australia

Answer 2

• statute law
• common law
• the australian constitution
• victorian charter of human rights and responsibilities

Question 3

how are rights protected through statute law (example)

Answer 3

Most rights in australia are protected through commonwealth, state and territory legislation. parliaments have passed many statutes that outline and protect a range of rights, such as the privacy act 1988, which protects the right to privacy.

Question 4

how are rights protected through australian constitution (example)

Answer 4

the australian constitution establishes some basic rights for australian citizens. it protects peoples rights in three ways, being through express rights, implied rights and rights in the constitutions structure

Question 5

express rights

Answer 5

rights that are stated in the constitution and can only be changed by referendum
includes the right to…
- free interstate trade and commerce–> provides freedom of movement
- not to be discriminated against by the commonwealth on the basis of the state where you reside
- receive ‘just terms’ when property is acquired by the commonwealth
- trial by jury for indictable commonwealth offences
- a freedom of religion

Question 6

implied rights

Answer 6

not explicitly stated in the constitution but is rather implied to exist by the high court when interpreting the constitution.
- eg. although the constitution does not explicitly state that australians have the right to freedom of political communication, the high court has decided that it is implied.

Question 7

rights in the constitutional structure

Answer 7

• the rights of people are indirectly protected through various parliamentary principles and concepts included in the constitutions text and structure.
• eg. indirectly protects the right of people to elect the commonwealth parliament by stating that australias parliamentary system must be based on the principle of a representative government

Question 8

how are rights protected through the charter of human rights (example)

Answer 8

• australia does not have a national charter of rights, but the victorian and ACT parliaments have passed statutes that aim to protect the rights.
• the charter of human rights and responsibilities act, referred to as the human rights charter, sets out the basic rights, freedoms and responsibilities of the australian people. it outlines basic rights such as the right to life, freedom of movement, and freedom of thought, conscience, religion and belief, equality before the law

Question 9

how are rights protected through common law (example)

Answer 9

many rights are protected by common law. judges can establish precedent that protects the rights of australian people. these rights are common law rights. includes the right to..
- silence
- a fair trial
- limited freedom of speech

Question 10

strengths of statutes and their ability to protect the right to privacy (evaluate)

Answer 10

• statutes are often detailed and precise, protecting human rights specifically, such as the privacy act, protecting the right to privacy
• parliament can amend statutes to incorporate further rights as society changes, making changes to protect australians right to privacy
• rights contained in statutes are generally enforceable, helping to protect the right to pivacy

Question 11

weaknesses of statutes and their ability to protect the right to privacy (evaluate)

Answer 11

• parliament can amend acts, so some rights can become limited or no longer exist, such as the right to privacy
• rights in statutes are not as well protected as those in the constitution and can be more easily removed, meaning the right to privacy is not as well protected
• statutes do not always allow people to be awarded damages when their rights have been breached

Question 12

how can international declarations and treaties influence the protection of rights in australia

Answer 12

• international treaty: an agreement between countries to be bound by international law.
• declaration: a document that outlines a set of standards that nations voluntarily agree to.
• The rights that Australia protects are often influenced by international declarations and treaties such as the Universal Declaration of Human Rights.
• commonwealth gov gives its commitment to uphold a range of international human rights treaties by becoming a signatory. for the treaty to become law, the nation must pass legislation to approve and adopt rights outlined in the treaty –> ratification

Question 13

test case

Answer 13

a legal action with the aim of having the court establish precedent which can be followed in future similar cases

Question 14

what is meant by having ‘standing’ in a case

Answer 14

means that the litigant must be directly affected by the issues involved for the court to be able to hear the case

Question 15

mabos role in bringing the case to court

Answer 15

in 1982, eddie mabo & four other members of the meriam people initiated court proceedings to have their traditional ownership of mer island recognised. they claimed customary ownership of the land and challenged the doctrine of terra nullius

Question 16

what is the reason for mabo brining the case to court?

Answer 16

mabo wanted to fight for the land rights of aboriginal and torres strait islander people. he brought the case to have the Meriam people’s traditional ownership of the island of mer in the torres strait legally recognised, and overturn terra nullius

Question 17

explain prior laws relating to ownership of the land (terra nullius)

Answer 17

when australia was colonised, british courts applied the doctrine of terra nullius to australia, meaning that the land of australia was regarded as ‘empty land’ when it was colonised, not recognising the land rights of aboriginal and torres strait islander people.

Question 18

outcome of the supreme court case (mabo)

Answer 18

• hearings were completed in brisbane in 1989.
• justice moynihan’s decision was handed down on 16 november 1990, ruling that mabos claims must be denied
• mabo took his case to the high court

Question 19

outcome of the high court case (mabo)

Answer 19

• hearings concluded in 1992
• the decision said that under australian law, indigenous people have rights to land, that these rights existed before colonisation and still exist. this is called native title
• ruled that native title is recognised common law of australia
  -mabo died in jan 1992, 5 months before final decision

Question 20

what did the high court’s decision mean for the indigenous population?

Answer 20

the case recognised the rights of all indigenous people who have a continued connection to their land

Question 21

what did the high court’s decision mean for the legal system?

Answer 21

high courts rejection of terra nullius has led to legislation being passed to clarify the situation and protect property interests, this is called the native title act

Question 22

various attitudes relating to the high court decision

Answer 22

• some of the mining and pastoral industries, and conservative politicians, reacted angrily and wanted the decision overturned
• not everyone was in favour for land rights for indigenous people
• a study in 2004 found that 25% of people felt that change had not gone far enough, while almost double thought it had gone too far
• one third thought change had been to the right extent, and over the years the proportion of voters who felt that land rights were excessive fell from 61% to 35%