AOS 6 Rights

• Human Rights are basic freedoms that promote and uphold the dignity of all people, and are guaranteed by a moral sense of duty or by the law.
• Limitations STATUTE LAW

  • Parliament can amend statutes
  • Parliament can include limitations or restrictions
  • Statutes do not always enable a person to be awarded any damages
  • Rights protected in statute law are not as well protected as constitutional rights
• STRENGTHS Statute Law

  • Can be amended to incorporate further rights as society changes/evolves
  • Often detailed and precise
  • Generally enforceable
  • Parliament has the ability to pass laws quickly
• Victorian Charter of Human Rights and Responsibilities sets out basic rights, freedoms and responsibilites. It requires Vic Parliament, government and other bodies to comply.
• How does the charter work?

  • Government departements and public bodies: must observe these rights when they create laws, set policies and provide services.
  • Victorian Parliament: all proposed laws are checked against the Charter
  • The Courts: required to consider human rights when interpreting legislation.
• STRENGTHS VCHRR

  • Parliament can amend statutes and charters
  • Statues/Charters are often detailed and precise, and protect human rights specifically rather than implied.
  • Rights in statutes are generally enforceable and need to be recognised by government organisations
  • Parliament does have the ability to pass laws quickly
• WEAKNESSES VCHRR

  • Parliament can amend statutes and charters, so rights may become limited or no longer exist
  • Parliament can include limitations or restrictions in statutes/charters so protected rights are not always absolute
  • Statutes/charters do not always enable a person to be awarded any damages
  • The rights protected in statute law/charters are not as well protected as rights contained in a constitution.
• Common law are created through precedent. (Statutory Interpretation)
• Ways rights can be protected through common law

  1. Courts recognising and upholding the rights contained in statute law.
  2. Courts establishing new rights, independent to what is contained in a statute.
  3. Court can determine that a statute that restricts rights has been made beyond the law-making powers of parliament (declaring an act invalid)
• STRENGTHS COMMON LAW

  • Courts and judges are independent and make precedent free of political pressures
  • Courts and judges can make decisions in areas where Parliament is unable
  • Court are infer rights
  • Codification
• WEAKNESSES COMMON LAW

  • Common law rights can be difficult to identify or define
  • Courts must wait for a case to come before them to be able to decalre rights
  • Abrogation
  • Judges can be reluctant/conservative to recognise rights
  • Judges are limited in applying the law
• Role of the Constitution provides a legal framework for the creation of the Commonwealth Parliament. It outlines the structure of the Parliament.
• Separation of Powers

  • Judiciary
  • Executive
  • Legislative
• STRENGTHS SOP

  • Judges determine whether legislation breaches the Constitution in a way that is independent and based on the law.
  • Despite overlap in executive and legislative power minimises are still subject to scrutiny
  • Upper house is controlled by the opposition, there is greater scrutiny
  • Structural Protection
• WEAKNESSES SOP

  • Only operates at a federal level
• Constitution protects rights

  • Structural Protection
  • Express rights
  • Implied rights
• Express Rights

  5 Rights explicitly written into the Commonwealth constitution.
• 5 Express Rights

  • Freedom of Religion (s116)
  • Free interstate trade and commerce (s92)
  • Discrimination on the basis of state (s117)
  • Acquisition of property on just terms (s51 [xxix])
  • Trial by jury by indictable commonwealth offences (s80)
• STRENGTHS EXPRESS RIGHTS

  • Cannot be easily changed
  • Removed/changed through referendum process (double majority)
  • Parliament cannot pass legislation that conflicts with the 5 rights
• WEAKNESSES EXPRESS RIGHTS

  • 5 limited rights
  • More entrenched rights or a bill of rights would provide greater protection
  • Difficult to change due to referendum process- rights may lag behind changes in attitudes/tech. in time
  • Most only apply to Commonwealth Parliament
  • A bill of rights that was included in an Act of Parliament would be likely to include more rights that would be agreed upon by the people and the states
• Implied rights are not written in the Constitution but have been read into or implied in the Constitution by its structure and text (wording) by the High Court.
• STRENGTHS IMPLIED RIGHTS

  • Freedom of Political Communication has been implied by the High Court
  • Implied rights show that rights can be declared and clarified by the High Court when justice needs to be preserved.
• WEAKNESSES IMPLIED RIGHTS

  • There is only one implied right
  • High court has been reluctant to imply rights
• Structural Protection refers to systems, structures or mechanisms in the Commonwealth Constitution that indirectly protect rights and reflect that there are checks and balances built into the Commonwealth Constitution to prevent misuse or abuse of power by the Commonwealth Parliament, thereby protecting rights.
• 6 Structural Protections

  • Responsible government
  • Representative government
  • Separation of powers
  • A federal system
  • A bicameral parliament
  • Referendum process
• STRENGTHS STRUCTURAL PROTECTION

  • Responsible government: must be answerable to the lower house
  • Representative government: voted out of office if it does not listen to the wishes of the people
  • Separation of powers: provides an independent High Court that is the final arbiter on government actions and abuse of power.
  • Crown: ultimate safety check on the operation of the government
• WEAKNESSES STRUCTURAL PROTECTION

  • Indirect protection of rights- it is unclear exactly what rights are protected
• Treaty is a binding agreement between countries and is governed by international law.

  -> Bilateral- between two countries

  -> Multilateral- between three or more countries
• Treaties often are influenced by international declarations which is a non-binding agreement that sets out intentions/aspirations which can be included in law.
• Treaties are tabled in both houses of Commonwealth Parliament

  • Ratification makes it binding under international law
  • Executive has the right to remove itself from obligations if the treaty no longer serves Australia's interests.
• Reforms

  • National Charter or bill of rights
  • Lowering the voting age
  • Addressing disadvantage experienced by First Nations people in the criminal justice system
• National Charter/Bill of Rights

  The consensus if Australia was to adopt a charter or bill of rights this would be a statutory approach.

  -> Commonwealth Parliament would pass an Act of Parliament
• STRENGTHS NATIONAL CHARTER

  • Assist in educating the community which would help them in being willing to seek actions when rights have been infringed
  • Improve Australia's international image as they have been accused of breaching human rights
  • Make government more accountable
• WEAKNESSES NATIONAL CHARTER

  • Individuals can try to influence the government
  • Belief that already adequately protected by multiple Acts of parliament
  • The Commonwealth Human Rights Act 2011 requires all proposed legislation to be checked for compatibility with rights (however parliament can choose to ignore suggestions)
• s92: free interstate trade and commerce
• s116: freedom of religion
• s117: discrimination on basis of state
• s51 xxxi: acquisition of property on just terms
• s80: trial by jury by indictable commonwealth offences