Legal Studies Alternative Sequence Unit 4 Syllabus Study Guide PDF

\*Technically, EA is only on topics 1 and 3 but be familiar with Topic 2 content \*underlined content is the objectives directly from the syllabus. Topic 1: Human Rights ===================== ***In Topic 1, students explore the global context for human rights and how international laws and instit...

\*Technically, EA is only on topics 1 and 3 but be familiar with Topic 2 content \*underlined content is the objectives directly from the syllabus. Topic 1: Human Rights ===================== ***In Topic 1, students explore the global context for human rights and how international laws and institutions affect Australia.*** *[ describe key terms using legal terminology, including human rights, covenants, treaties, states, sovereignty, signatory treaty, convention, multilateral, bilateral, ratification, bill of rights, and royal commission ]* Legally, there is no difference between a treaty, a convention or a covenant. All are international legal instruments which, in international law, legally bind those States that choose to accept the obligations contained in them by becoming a party in accordance with the final clauses of these instruments.. Territorial Integrity is the idea that a state has the right to its own territory and another state should not do anything to infringe that right. Enshrined in Article 2 (4) of the UN Charter. The relationship between Sovereignty and territorial integrity is that sovereignty is the right to rule / govern, and territorial integrity is the right to sovereignty without interference/ infringement on that. * [describe the main features of international law developed from the International Bill of Human Rights, consisting of the:]* \*The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. EXTERNAL ASSESSMENT QUESTION   Construct a diagram that represents three components of the International Bill of Human Rights and two features of each component.  +-----------------------+-----------------------+-----------------------+ | 1. Universal | 2. International | 3. International | | Declaration of | Covenant on | Covenant on Civil | | Human Rights | Economic, Social | and Political | | (1948)  | and Cultural | Rights (1966)  | | | Rights (1966)  | | +=======================+=======================+=======================+ | - Sets out rights | - Right to | - Electoral rights  | | such as freedom | self-determinatio | | | from | n  | - Freedom of | | discrimination  | | speech  | | | - Right to housing, | | | - Right to life   | health, | - Fair trial and | | | education, | due process  | | | standard of | | | | living  | | +-----------------------+-----------------------+-----------------------+   - There are 30 articles. - Multilateral treaty - Not legally binding - Details basic rights and fundamental freedoms - It represents human rights protections inherent to every human being. - The key articles of the Universal Declaration of Human rights (1948) include: - **Article 1:** all humans are born free and equal in dignity and in rights - **Article 2:** Freedom from discrimination (in the context of human rights provisions) - **Article 3:** The right to life - **Article 4:** No one shall be held in slavery or servitude - **Article 5:** no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment. - **Article 7:** All are equal before the law, and all are entitled to equal protection (without any discrimination) of the law - **Article 9:** no one shall be subject to arbitrary arrest, detention or exile - **Article 10:** the right to a fair trial by an independent judge, and a jury of peers. - **Article 11:** Presumption of innocence - **Article 13:** Freedom of movement - **Article 14(1):** right to seek asylum - **Article 16(1):** The right to marry/ start a family - **Article 18:** Freedom of thought/ religion - **Article 19:** Freedom of Opinion and Expression - **Article 20(1):** right to freedom of association/ assembly - **Article 21:** Everyone has the right to take part in the government of their country, both directly and through elected representatives- universal suffrage - **Article 23**: Right to employment - **Article 25**: Right to an adequate standard of living - **Article 26(1):** The right to an education - Came into effect 1966 - Contains 53 articles - Multilateral treaty - Mainly talks about civil and political rights - Mostly negative rights are discussed - Talks about peoples rights in court and arrest - Key articles include: - Article 2: requires that States Parties adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfil their legal obligations - Article 3: Equal right of men and women to enjoyment of all human rights set out in covenant - Article 6: Right to life - Article 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, especially non-consensual experimentation. - Article 8: Slavery prohibited - Article 9: right to liberty and security of prison, freedom from arbitrary arrest - Article 12: freedom of lawful movement and residence - Article 14: all people are equal before courts and tribunals - Article 18: Everyone shall have the right to freedom of thought, conscience and religion - Article 20: war propaganda is prohibited - Article 21: right of peaceful assembly shall be recognised - Article 22: Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. - Article 25: right to vote and be elected - Article 26: all equal before law (no discrimination in law) - Article 27: members of a minority group must not be denied the right to use their own language - Article 28: Established Human rights Committee - Articles 29-45: operation of committee and resulting commission - Article 46: nothing in this covenant impairs the UN Charter - Article 48: Open for signature by any state member of UN - Came into effect 1966 - 54 articles - Multilateral treaty - Mostly positive rights are established - Mainly talks about economic social and cultural rights - Key articles include: - Article 1: right to self-determination - Article 3: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. - Article 6: right to work - Article 7: right to enjoy just and favourable working conditions (fair wage, safe working conditions) - Article 8: right to join and form trade unions - Article 9: right to social security - Article 10: Marriage must be entered into with the free consent of the intending spouses, families must be supported- particularly mothers (maternity leave) - Article 11: right to an adequate standard of living - Article12: right to physical and mental health - Article 13: right to an education - Article 15: right to take part in cultural life and scientific progress - Articles 16-22: Nations shall provide progress reports to the relevant international bodies - Articles 26-31: Open to all process for amendments ICCPR ICESCR ------- -------- *[ describe the main features of principal treaties, including the]* - Multilateral treaty - Ratified into Australian Domestic Law as the Migration Act 1958 - Defines refugee as an individual or group fleeing from their home country due to "well-founded fear of being prosecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion" and is unable to return due to fear of prosecution - Sets out key rights of refugees such as the right to non-refoulement, right to seek asylum and the issue of offshore processing: - **Right to non-refoulement:** forbids a country receiving asylum from returning them to their home country if there is likely danger of persecution on the basis of race, religion, national, membership, or political opinion. - **Right to seek asylum:** means that any person has the right **[not]** to be turned away from a country when seeking asylum - Forbids a country from offshore processing (which Australia continues to do) - Other rights are not specifically related to refugees, but are equally important rights to association, right to work, right to adequate standard of living, and right to equality before the law - Overall, Australia has a bad record in protecting human rights when it comes to asylum seekers, as Australia uses an offshore processing system where people living in detention camps suffer terrible living conditions and are detained for years. - This covenant expands on Article 13 of the Universal Declaration of Human rights; the right to seek asylum - It outlines what asylum is and the rights of individuals who are granted asylum, as well as the responsibilities of nations granting asylum - Key articles include: - Article 16: refugee shall have free access to courts of law on the territory of all contracting states - Article 33: No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (right to non-refoulement) - The 1967 Protocol removed the Refugee Convention\'s temporal and geographical restrictions so that the Convention would apply universally. Article 1 of the Protocol says that countries that ratify it agree to abide by the Refugee Convention as well -- even if they are not a party to it. - Multilateral treaty - Ratified into Australian domestic law as the Racial Discrimination Act 1975- with reservations regarding racial vilification (Vilification is behaviour that \'incites or encourages hatred, serious contempt, revulsion or severe ridicule\' for a person or group of people because of their race and/or religion) - Aims to eliminate racial discrimination and promote understanding among all races - Important section is that the convention obligates signatory countries to outlaw hate speech - Key rights promoted include: - Equality before the law - Right to work - Right to adequate standard of living - Right to access government services - There Is debate whether section 18C actually outlaws hate speech especially because section 18D provides exemptions - Requires the elimination of racial segregation as well as the promotion of understanding and tolerance - Commits parties to elimination of all forms of racial discrimination - criminalises incitement of racial hatred - Key articles include: - Article 1: defines racial discrimination as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. - Article 2: states condemn racial discrimination - Article 3: states particularly condemn racial segregation and apartheid - Article 4: states prohibit propaganda that bases ideas on the superiority of one race over others - Article 6: access to protections and remedies for racial discrimination through tribunals etc. - Article 7: adopt new measures in education so as not to encourage racial prejudice - Article 8: established a Committee on the Elimination of Racial Discrimination - Articles 9-14: operation of said committee - Article 17-25: open for signature by all UN states, process of revision/ requests - Multilateral treaty - Ratified into Australian domestic law in the Sex Discrimination act 1984 - Includes rights on: - Gender - Sexual orientation - Pregnancy - Political participation - Health - Education - Housing - Employment - Marriage - Family relations - Equality before the law - Focuses mainly on economic and social rights of women in education, employment, and health - Key articles include: - Article 1: defines discrimination against women as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status - Article 2: States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women - Article 6: states take measures to suppress trafficking and exploitation of prostitution of women - Article 7: right to equal involvement in government (elections etc.) - Article 10: equal rights to education - Article 11: ending discrimination against women in workplace - Article 12: equal access to healthcare services - Article14: consider the role and issues of rural women - Article 15: equality before the law - Article 16: equal rights in family and marital matters - Article 17-30: establishment of committee, operation of committee, amendments to convention, open to all UN states for signatory - Multilateral treaty that is ratified in Australia and is the most widely ratified human rights treaty in history - Defines a child as a person under the age of 18 unless the age of maturity is attained earlier under the law of the country - Recognises that children have rights beyond those of their parents - Discusses matters such as: - Child trafficking - Custody - Right to a child's own identity - Right to life - Unique rights include the right to be raised by parents (unless it is not in the best interest of the child) and the right to have a parental relationship - Another unique right is the right to partake in legal decisions involving them (or through a legal representative acting on the bests interests of the child) - Main concern is creating laws which have the best interests of the child at heart - Requires signatories to provide separate legal representation for a child in judicial disputes concerning their care - Asks that the childs viewpoint be heard - Prohibits capital punishment for children - Key articles include: - Article 1: 18 years of age - Article 2: applies to all regardless of race, gender, religion, nationality ethnicity etc. - Article 7: right to legally registered name and nationality, as well as to be cared for by and know their parents - Article 9: shouldn't be separated from their parents unless its in best interests of child - Article 11: governments should take steps to stop child abduction (even by parents) - Article 12: right to be heard in judicial matters concerning them - Article 16: children have the right to privacy - Article 18: both parents share responsibility of child upbringing, and should always consider what is best for the child - Article 19: governments should ensure children are properly cared for and not abused or neglected by carers - Article 24: children have the right to good quality healthcare - Article 27: right to a standard of living that meets their needs - Article 28: right to an education - Article 30: right to language and customs of families - Article 33: protect them from dangerous drugs - Article 34: protect children from sexual abuse - Article 35: protect child from abduction - Articles 43-54 are about how adults and governments should work together to give children their rights *[ explain the ]* Accession: - Treaty already formed then signs it - The country then has a legal obligation to promote the rights of that treaty in their domestic law - Important note: any member of government can sign off on a treaty, only the legislative branch can ratify it!! - The foreign Affairs powers (Section 51 of Australian Constitution) is an exclusive power restricted to the legislative branch of the government, effectively allowing the legislature the final say in which human rights laws can be implemented- EG TASMANIAN DAM CASE: the foreign affairs power also allows commonwealth to override residual powers when it is a matter relating to international treaties that Australia is signatory to. - Ratification mirrors the treaty in domestic law; sometimes the nation will not wish to be bound by the whole treaty and so will only ratify certain provisions. The sections which are not transferred into domestic law are known as reservations. EG. Racial discrimination act has a reservation on racial vilification Human Rights (Parliamentary Scrutiny) Act 2011 Forms Parliamentary Joint Committee: - The Joint Parliamentary Committee on Human Rights is a parliamentary Committee which examines all bills and matters referred to it by the Attorney-General for human rights and international law violations, or where it may be strengthened - They submit a report on all pieces of legislation and matters which examine how the bill strengthens or damages international law - Failure to submit it doesn't stop a bill from being passed - Reviews acts to see if they're compatible with international law (statement of compatibility) - Parliamentary joint committee can investigate into matters concerning human rights and report to parliament - However it isn't very effective as members of the committee are also members of parliament and the Parliament does not actually need statement of compatibility or findings from the joint committee to pass legislation Statement of Compatibility - The Statement of Compatibility is a document required to be submitted with every single piece of legislation in the explanatory memorandum which outlines how compatible the bill is with human rights and with international law - It examines it against the seven core treaties, and is an expression of the legislators view on its compatibility, not of the parliament - This is required to be legislatively submitted but once again, failure to submit doesn't prevent the passage of a bill that violates human rights +-----------------------------------+-----------------------------------+ | *Arguments for Sovereignty* | *Arguments against sovereignty* | +===================================+===================================+ | - States can exercise influence | - States can ignore | | in international forums | international human rights | | | | | - States can impose sanctions | - States can enact | | on other states for breaches | discriminatory laws and | | of human rights | engage in repressive | | | practices | | - States can implement domestic | | | laws protecting human rights | - States can remove existing | | | domestic human rights | | | protections and ignore human | | | rights violations | +-----------------------------------+-----------------------------------+ Created after the disastrous events of World War 2. There are 5 primary functions of the UN: - Achieved through diplomacy and mediation, helping peacebuilding - Also includes counterterrorism, disarmament, peacekeeping - The OHCHR leads responsibility for protection, including independent experts and peacekeeping - Achieved through the court system It has several agencies/ organs within to assist with these missions, they include: *[ describe key human rights initiated or promoted in the following important legal documents ]* Created by the British parliament because of the unfair laws made by king John. Key principles include: - Right to a trial by jury - The rule of law- the idea that no monarch is above the law, and that everyone is equal before it - The right of the church to be free from government interference - Rights of all free citizens to own or inherit property - Guaranteed protection from excessive/ arbitrary taxation - Ratifies International Convention on the Elimination of all Forms of Racial Discrimination - Reservations are made in relation to racial vilification; - Sections 18C makes it unlawful for actions that are reasonably likely to insult, offend or intimidate someone on the basis of race, but Section 18D contains exemptions which protect freedom of speech - Recognises direct (racism in every day matters) racism and indirect (implementation of law that is racist or gives one race an advantage) racism - Prohibits discrimination on the basis of the following areas: - Access to places and Facilities (Section 11) - Land, housing and other accommodation (Section 12) - Provision of Goods and Services (Section 13) - Trade Union Membership (Section 14) - Employment (Section 15) - Advertisement (Section 16) - If someone believes they've been discriminated against under this Act, they can file a complaint with the Australian Human Rights Commission - Ratifies Convention on the Elimination of All Forms of Discrimination Against Women - Reservations are made in areas related to religious institutions who can discriminate based on sex for ordainments / ministers - Reservations in regards to women's role in ADF (partially withdrawn later) - Prohibits Discrimination in areas of: - Work - Education - Accommodation - Provision of goods and services - Activities of clubs - Administration of laws - Disposal of land - On the basis of: - Sex - Relationship status- right to marry, to have children, consensual marriage - Pregnancy- right to maternity leave - Sexuality - Breastfeeding etc. - Discrimination can also be against men in areas such as marital status - Ratifies Convention on the Rights of Persons with Disabilities - Key rights promoted are: - Right to non-discrimination - Right to work - Right to education - Prohibits discrimination in areas of work, education, publicly available premises, accommodation, clubs and associations [* describe and explain the role of the Australian Constitution (including the foreign affairs power within s 51) in protecting express and implied human rights in Australia*.] - **Express rights:** rights which are clearly and explicitly outlined in legislation - The 5 express rights outlined in the Australian Constitution are: SECTION 51 SETS OUT THE POWERS OF THE COMMONWEALTH... - gives the Commonwealth Parliament of Australia the right to legislate with respect to \"external affairs\" - Therefore, if states legislate in areas afforded to them by their residual powers, but are in breach/ conflict with international law that Australia is signatory to, the Commonwealth has the power to override them under Section 51 foreign affairs powers - For example, in the Tasmanian Dam case, the dam proposed by the Tasmanian Government was in conflict with the World Heritage Convention to which Australia is signatory, therefore the High court ruled that under the external affairs powers of Section 51 The Commonwealth were able to legislate in this area. Topic 2: The effectiveness of international law =============================================== ***In Topic 2, students examine the effectiveness of international law and legal institutions in upholding human rights globally. Students focus on legal issues and international situations in which Australia has a legal interest.*** ***DO NOT TECHNICALLY NEED TO KNOW THIS TOPIC FOR THE EXTERNAL EXAM, SO IT IS JUST GLOSSED OVER HERE NOT COMPLETELY IN DEPTH NOTES.*** *[ explain how human rights are monitored, including the reporting system, United Nations Special Rapporteurs, inter-State complaints, ancillary bodies and individuals ]* REPORTING SYSTEM - Australia is required to periodically report to the UN Human Rights bodies in relation to their performance in upholding their obligations under international law - AUS also engages with the Universal Periodic Review; a UN human rights reporting system that reviews the human rights record of all nation-states once every four years and reports back to the nation-state - Report outlines states implementation of the relevant treaty and allows NGOs to submit their views on how Australia is performing UNITED NATIONS SPECIAL RAPPORTEURS - Independent experts appointed by the UN Human Rights Council who monitor, advise and publicly report on human rights situations in specific countries, especially when a nation-state has a severe human rights violation - Rapporteurs may also respond to individual complaints- once a complaint is verified as legitimate, an urgent letter or appeal is sent to the government who allegedly committed the violation, if no complaint has been made rapporteurs may intervene on behalf of groups of their own accord - They are limited as they can only investigate a country if the country invites them INTER-STATE COMPLAINTS - Made by nation-states regarding another nation-state that has signed and ratified the same treaty as them regarding a human rights violation - Done by making a complaint to the UN body that oversees matters relating to the treaty of concern, UN will then investigate ANCILLARY BODIES AND INDIVIDUALS - Refers to the other organisations in the UN such as UNICEF - These bodies can monitor human rights through the investigation of human rights violations on the topics that relate to their body *[ explain the role of international legal institutions in upholding rights, including those within the International Court of Justice (ICJ) and the International Criminal Court (ICC) ]* *[ examine the legal implications of becoming a signatory to various internationally recognised treaties and conventions related to the protection of global citizens and property, e.g.]* - Not legally binding though AUS is a signatory - UDHR is considered to be a customary part of international law and serves to protect rights through the elaboration of its contents in principal treaties - Outlines the protocol relating to the processing of refugees - Australia is required to meet obligations in this - Right to seek asylum, right to non-refoulement - Multilateral treaty that seeks to provide parents a way to retrieve their children if they are abducted into a different country - Special obligations of the treaty require the nation-states to set up a Central Authority in every signatory country to facilitate the processes for the immediate return of the child to their parents - Only applies to children under 16 - Aimed at deterring a parent from crossing international boundaries in search of a more sympathetic court - Establishes key rights and the minimum standards for survival, dignity and wellbeing of the Indigenous peoples in the world - Australia has the responsibility to meet these rights and standards - Emphasises the following rights (AUS must also emphasise these as we endorsed it- BUT WE DIDN'T SIGN IT): - Right to self-determination - Right to cultural identity - Right to free, prior and informed consent - Right to be free from discrimination - Define basic rights of wartime prisoners , establishing the protection of civlillians, the wounded and the sick - Australia Is required to spare the civilians and treat military personnel in a particular way - Geneva Conventions focussed on things like hostages, right to fair trial of war crime, wilfil killing toture etc., unlawful deportation etc. (war crimes) - Hague focussed on the use of weapons in war - Bans the use of weapons that may cause suffering to civilians - Outlines limits of war including preventing the use of land mines, cluster bombs, chemical weapons and advanced technologies - Australia is required to meet these obligations when at war *[ select legal information, then analyse and evaluate the present effectiveness of international law and legal institutions in protecting human rights, focusing on a contemporary legal issue, e.g.]* [ * create responses that communicate meaning to suit the intended purpose in paragraphs and argumentative essay responses.* ]IA3 RELATED SYLLABUS OBJECTIVES Topic 3: Human Rights in Australian Contexts ============================================ ***In Topic 3, students continue to focus on human rights and also explore how this area of law is addressed in Australia and Queensland. They explore the role of different groups in both protecting rights and influencing just and equitable outcomes.*** *[ explain and analyse the rights that Australians have in criminal and civil contexts, including the role of express and implied rights in ensuring equality under the law, e.g. ]* EQUALITY BEFORE THE LAW - Found in Articles 2, 16 and 26 of the ICCPR - Ensures all people can be recognized before the law, and allows them to enjoy human rights without discrimination on attributes - It provides equal and effective protection against discrimination - Special measures refer to programs aiming to assist or advance people affected by discrimination, and are not considered discrimination - This can include programs assisting indigenous people, or employment programs for people with disability - A fundamental right in a free and democratic society - **The right to political communication:** a type of right to free speech- was decided to be an implied right of the Constitution in *Lange v ABC.* - This right is important in holding government accountable (eg. The role of media would be ineffective if the government didn't let them cover certain issues) - Composed of two parts: - **The Right to Freedom of Opinion** is the one to hold opinions without interference, without exception (inalienable) - **The Right to Free Expression** extends to any medium, including written, communication, media, protest, broadcasting etc. It is not absolute. This includes unpopular ideas, hence why this right is contentious- there are limitations to this freedom, such as publishing defamatory information - Articles 19, 20 of the ICCPR, 4,5 of the CERD and 12, 13 of CRC all form this - Not explicitly protected, however can be contained in the Implied Right to Political Communication. The Criminal Code and RDA prevent language which is likely to offend, or insult (RDA) or would threaten the Governments Authority (CC) - However, right to free speech should be limited to protect other rights- such as the right to freedom from discrimination. Sections 18C and 18D are often criticised for protecting the right to free speech at the cost of another's freedom from discrimination - Article 20 of the ICCPR creates mandatory limitations on freedom of expression to prohibit the vilification of people on national, racial or religious grounds - Derogation allows nations to derogate from their obligations in times of public emergency which "threaten the life of the nation" - It can also be limited in times where it is necessary to protect public morals, order, security or health - Also can be limited when it would threaten the rights or reputation of others, when it would threaten national security and/or public order - An implied right - The right to protest is a fundamental right in democracy and if not protected the ability to hold the government accountable is reduced - Protects the right to **peacefully protest** not violent demonstrations - Right to freedom of assembly protects the right to form and join associations to pursue common goals - Restrictions can only be imposed when it is necessary to protect the rights of others (eg. Public health- COVID lockdowns) - **regulated right:** a right that is regulated, defined and controlled in legislation - Governed in QLD by the Peaceful Assembly Act 1992 (QLD) - The Right to Peaceful Assembly protects the rights of individuals to engage in free and peaceful protest. The Free Assembly/Association right protects the ability to form and join associations for common goals, such as a political party - Restrictions can be imposed where it is necessary in a democratic society to protect the rights of others, public health, morals, safety and order - The basis in international law: - It is relevant to the following rights in the ICCPR. It is not found in any Commonwealth law: - The Right to Self-Determination - Right to Freedom of Thought, Conscience, Religion or Belief - Right to Free Opinion or Expression - Right to Freedom of Movement - Right to Take Part in Public Affairs - An implied right - Protected by multiple acts in Australian Legislation, such as the Racial Discrimination Act 1975, the Sex Discrimination Act, the Disability Discrimination Act and the Age Discrimination Act. - This is distinct from **positive discrimination,** or the ability of governments to discriminate in affirmative ways, such as offering employment opportunities to marginalised people in order to rectify systematic discrimination. EG. Benefits for aboriginal and torres strait islanders is positive discrimination as permitted by the Acts, as it does not impact on the health or wellbeing of others. - Very similar to Equality Before the Law, it ensures nobody s denied their right because of factors such as race, color, sex, location etc - It is inalienable, meaning that nobody can take this right away - Positive discrimination refers to the ability for governments to be able to discriminate if it is for the purpose of eliminating discrimination - A fundamental aspect of democracy - All aged over 18 years of age have the right to vote and voting is compulsory in Australia - Implied right interpreted by the courts in Sections 7 and 24 of the Australian Constitution that states that Parliamentarians are "directly chosen by the people" - The right to democratic representation has minor exceptions: - People under 18 are unable to vote - You must be a citizen - Must not be serving a prison sentence - This however, does not prevent democratic participation. - For many years, women and aboriginal people were unable to vote - Based on the idea of representative government, where the people elect others to represent their beliefs attitudes and perspectives in parliament and local councils nation-wide - **Right to vote:** a constitutional or legislated right of eligible citizens to elect a representative to parliament or a local council from a list of candidates - The right to express the will of the people in the management and authority of the nation - Given in free, fair and regular elections which involve all with universal suffrage - Refers to all adult people, no matter race, gender, position or any other restriction being give the ability to vote in elections and participate in democracy - Democratic participation refers to the idea, that for democracy to function, people must participate in it - This can include media, people discussing politics and importantly, voting and standing for election - Under this right the Commonwealth cannot pass laws that would establish a state religion, or prohibit the free practice of religion - However it does not explicitly create a personal or individual right to religious freedoms - Is an express right in Australia - This express right prohibits discrimination on the basis of religion by protecting against situations such as; state religion, imposition of religious observance, prohibiting anyone from their right to exercise their religion and any job that requires qualification - Right to religion is limited in that it can protect only in these situations - Provided under Section 116 of the Constitution - Article 18(3) of the ICCPR to which Australia is signatory - Protects non-theistic and atheistic belief as well as the right not to profess any religion or belief - All persons have the right to think freely and hold beliefs on the basis of religious or spiritual belief - Subject to limitations people also have the right to manifest or demonstrate this belief through observance, teaching, worship etc. - It is contained in Article 18 of the ICCPR and Article 5 of CERD - Established as a fundamental law since the Magna Carta (1215) along with the rule of law - Protected by the Australian Constitution in section 80; however it is limited to indictable offences meaning that summary offences do not need to be heard in the presence of a jury - Juries must be randomly selected and represent the community in order to maintain objectivity - They must determine the guilt of the accused from evidence provided- the judge does not determine guilt but may advise the jury and determine the punishment - Right to a trial by judge alone- prosecution or defence may apply for a no jury order under section 614 of the Criminal Code (Qld). - The Right to Trial by Jury is the right to be tried by your peers for crimes you have committed - It ensures that trials are free, fair and unbiased and allows for your defense to be made - It is found within the Australian Constitution (s80) and it is necessary to it that Jury decisions are unanimous - The right is not necessarily provided for all cases and the explicit constitutional right only provides it for commonwealth offences - For minor cases, often a jury will not be provided and it will be a judge exclusive decision *[ explain the legal processes available to citizens for resolving human rights complaints in Australia, including protesting, lobbying, lodging complaints, tribunal/court actions ]* PROTESTING AND LOBBYING - Protesting or lobbying directly draws the attention of international human rights communities or the public to issues - It is a response, generally, to human rights more broadly rather than a particular individual - It is cost effective and in the modern day is often done online - Lobbying is directly to the government and opposition, and this combined with protesting has sometimes led to positive outcomes, including marriage equality - It often isn't achieved with a single protest, but usually from a large movement [PROTESTING- people come together to show their disapproval for government re: certain laws] *[ ]* [LOBBYING: where certain groups or individuals take to convince legislators of reforming law] [LODGING COMPLAINTS] - Complaints can be lodged through the AHRC for a federal breach or through the anti-discrimination Commission QLD for a state or local breach - Investigates complaints about discrimination and human rights - Doesn't act ads an advocate for either party - Undertakes inquiries, conducts education, develops awareness and intervenes in proceedings - Investigates infringements of the Discrimination suite A screenshot of a cell phone Description automatically generated [TRIBUNAL/ COURT PROCEEDINGS] - Formal process, generally as a last resort - Relevant acts of Parliament generally establish how and when compensation will be given at an outcome - Provisions encourage going through ADR, and Judges make decisions based upon existing legislation and precedent - Case: Dietrich v The Queen (1992) - Concerning the Right to A Fair Trial and to what extent defendants should be provided with legal aid by the state - It found that whilst the right is not absolute, judges should grant adjournment when there is no representation - *[explain and analyse the role of the following groups in protecting and/or advocating for human rights in Australia ]* AUSTRALIAN HUMAN RIGHTS COMMISSION - independent statutory organisation established by an act of federal parliament - aims to protect human rights in Australia and internationally - investigates complaints of discrimination and human rights breaches - tries to ensure human rights are considered in law-making as well as provide advice, review law and make submissions to Parliamentary inquiries - can report on Australia's performance in meeting human rights obligations- which can then be provided to the UN AUSTRALIAN LAW REFORM COMMISSION - Established by the Australian Law Reform Commission Act 1996, sitting independently within the portfolio of the AG - Allows the ALRC to comment on the law and make recommendations without fear, favor or political interreference - Conducts inquiries and provides recommendations for law reform, and the AG provides and defines scope - Reviews Australia's laws to ensure they provide all Australians with improved access to justice - Operates under the Australian Law Reform Commission Act 1996 and the Public Governance, Performance and Accountability Act 2013 (Cth) - Conducts inquiries into areas of law at the request of the Commonwealth Attorney-General - Based on research and consultations throughout inquiry, the ALRC makes recommendations to the government - ALRC recommendations do not automatically become law; however over 85% of ALRC reports have been partially or substantially implemented- very effective and influential agent for legal reform in Australia - Can make recommendations that: - Bring law into line with current conditions and needs - Removes defects in law - Simplifies the law - Adopt new or more effective methods for administering the law and dispensing justice - Provide improved access to justice - Makes sure the recommendations it makes do not trespass unduly on personal rights and civil liberties of citizens - Process: 1. Govt. identifies an area of commonwealth law that needs to be updated, improve or developed 2. Examines the Terms of Reference and decides the scope 3. Conducts initial research and consultation with key stakeholders 4. Forms an advisory committee or panel of experts to identify key issues + assure quality, meeting at lest twice 5. Produces publications to involve the community 6. Calls for submissions when releasing an issue or discussion paper 7. Formulates the recommendations, tabled by the AG in Parliament before being made publicly available 8. Considers to report and determines the extent of implementation STATE AND TERRITORY LAW REFORM BODIES +-----------------------------------+-----------------------------------+ | New South Wales | - NSW Law Reform Commission is | | | an independent statutory | | | constituted under the Law | | | Reform Commission Act 1967 | | | (NSW) | | | | | | - provides expert law reform | | | advice to the NSW Government | | | on matters that the | | | Attorney-General refers to it | +===================================+===================================+ | Victoria | - Victorian Law Reform | | | Commission is the central | | | agency for law reform in | | | Victoria | | | | | | - statutory authority | | | established under the Law | | | Reform Commission Act 2000 | | | (VIC) | +-----------------------------------+-----------------------------------+ | Tasmania | - Tasmanian Law Reform Institue | | | was established in 2001 by | | | agreement between the state | | | government, the University of | | | Tasmania and the Law Society | | | | | | - The functions of the | | | institute include the review | | | and reform of Tasmanian laws | +-----------------------------------+-----------------------------------+ | South Australia | - South Australian Law Reform | | | institute was established in | | | December 2010 | | | | | | - The institute, based at the | | | Adelaide Law School, is | | | formed by an agreement | | | between the Attorney- General | | | of SA, the University of | | | Adelaide and the law reform | | | society of South Australia | +-----------------------------------+-----------------------------------+ | Western Australia | - Law Reform Commission of | | | Western Australia assists in | | | keeping the law up to date | | | and relevant to the needs of | | | society by making | | | recommendations for the | | | reform of areas of law | | | referred to it by the | | | Attorney-General | | | | | | - The Attorney-General tables | | | the Commission's reports in | | | parliament as required by the | | | Law Reform Commision Act 1972 | | | (WA) | +-----------------------------------+-----------------------------------+ | Australian Capital Territory | - The ACT Law Reform Advisory | | | Council (LRAC) was | | | established in 2009 as a | | | collaboration between the ACT | | | Government and the ANU | | | college of law | | | | | | - LRAC's Terms of Reference | | | specify that its role is to | | | 'provide expert advice and | | | recommendations to the | | | Attorney-General on terms of | | | reference dealing with law | | | reform matters referred to it | | | by the Attorney General | +-----------------------------------+-----------------------------------+ | Northern Territory | - Northern Territory Law Reform | | | committee is a non-statutory | | | committee established to | | | advise the Attorney-General | | | on the reform of law in the | | | NT | | | | | | - Considers matters | | | occasionally referred to it | | | by the attorney general | | | | | | - Legal policy division of the | | | department of the | | | Attorney-General and Justice | | | provides executive and admin | | | support to the Committee | +-----------------------------------+-----------------------------------+ | Queensland | - QLD Law Reform Commission is | | | an independent statutory body | | | established under the Law | | | Reform Commission Act 1968 | | | (QLD) | | | | | | - The Commission's key | | | statutory duties, as provided | | | In Section 10 (3) of the Act, | | | include undertaking law | | | reform reviews referred to it | | | by the attorney general | +-----------------------------------+-----------------------------------+ - Can influence law reform and protect human rights by interpreting the Constitution and the creation of **precedent** - When the right case comes along, courts can influence Parliament to make legislation that codifies existing common law - When the courts are bound to unjust precedents, Parliament may decide to reform laws to achieve more just and equitable outcomes - Parliament may choose to codify precedents set by judges in decisions QLD COUNCIL FOR CIVIL LIBERTIES - Makes submissions to all relevant authorities, and openly opposes laws undermining civil liberties - Engages the public and media to consider civil liberties, supporting publishing\'s of pamphlets/books and holding lectures/seminars on liberties - Mobilizes citizens to actively engage local, state and federal members on violations of rights - Do not receive government or corporation support - Relies on volunteers and strives to protest individual rights and civil liberties in QLD - In their mission statement they outline the following activities that they perform: - Make submissions to givernments, inquiries or relevant authorities - Publicly oppose laws and actions that undermine civil liberties - Encourage public discussion on civil liberties issues by addressing groups and media releases - Support the publication of books and pamphlets on relevant subjects - Hold lectures and seminars on civil liberties and addresses groups by invitation - Mobilise citizens to actively engage with their local, state, federal members about human rights violations - Seeks solutions to problems regarding civil liberties - Provide when necessary neutral observers at marches and demonstrations AUSTRALIAN HUMAN RIGHTS CENTRE - An interdisciplinary research and teaching institute based in the Faculty of Law of the University of New South Wales - Promotes public awareness and academic scholarship about domestic and international human rights standards, laws and procedures through research projects, education programs and publications - Publishes Australian Journal of Human Rights and the Human Rights Defender - They support people and communities to defend human rights - Transform laws, policies and practice to advance human rights, by lobbying with politicians - Ensure governments, the parliament and business respect human rights - Ensure accountability by investigating and exposing violations of human rights through advocacy AUSTRALIAN LAWYERS FOR HUMAN RIGHTS - Research focused organisation relying on specialists - Mainly focuses on the expertise of lawyers, barristers, judicial officers, legal academics and law students - Aim to utilise extensive knowledge of those within the legal profession to spread awareness and influence law reform more broadly in society - Engages internationally to promote human rights and rule of law - Engages with UN in relation to Australian human rights violations - Promote and support lawyers practice of human rights law in Australia - Role of special interest groups is to inform the global community of human rights progress in certain countries in order to create action - They research, document and investigate human rights cases AMNESTY INTERNATIONAL - International organisation with generalised focus - Investigates and lobbies governments in order to influence law reform and protect human rights - Independent of any political ideology, economic interest or religion - Advocacy group campaigning for a world where human rights are enjoyed by all INTERNATIONAL FEDERATION OF RED CROSS AND RED CRESCENT SOCIETIES - International organisation with special focus on helping nations in times of emergencies - Also works to combat discrimination and violence, and to promote human rights and assistance for migrants - Main role in protection of human rights is in relation to Australia's obligations to war rules set out in the Hague and Geneva Conventions - First objective was to improve the health of people in countries that had suffered greatly during World War 1. CHURCH GROUPS - Typically work on a local level to spread awareness within communities and can influence people to protest and campaign for law reform - World Council of Churches: - Special interest ecumenical (representing a number of different Christian Churches) group that advocates and lobbies for human rights - Achieves this by bringing churches of various denominations from countries across the world together - Key aim is to serve people by breaking down barriers between people and seeking justice and peace throughout the world - Limited to countries where freedom of political speech is protected - Advantages of media can reach a wide audience to educate them and is typically available through a large number of different mediums - Independent from government which allows marginalised voices to be heard - Major limitation is that sources (eg social media) are not always reliable providers of news, so people may not be well-informed when making judgements about complicated matters of law The Role of Media in Legal Change: - Free press is essential to democracy to inform citizens of a country about matters concerning their political and legal systems - Separate from the government, judiciary and executive, it increases public knowledge of rights and how to respond to infringements - They raise awareness about human rights issues on international and domestic levels, whilst also uncovering concerning behaviors and allowing marginalized voices to be hear ***The following syllabus objectives apply to PART B of the exam- the extended response to stimulus. No information required to actually know, just how to write the structure outlined below.*** *[ analyse and apply human rights principles to a variety of Queensland and/or Australian case studies by ]*  There will always be different viewpoints about legal issues. The people affected by legal issues are called stakeholders. You should consider: 1. At least two different points of view. 2. Try to consider opposing points of view -- allows greater scope in your analysis 3. Sometimes there may not be "opposing points" of view but still different points of view about an issue. 4. Which stakeholders are in support of these points of view? 5. What reasons do those stakeholders have for their point of view? *[ evaluate the legal situation using the analysis (above) by ]* There will be different legal alternatives to address the issue you have identified, linked to the perspectives you have identified. - Sometimes these might be very different alternatives (e.g. remove a law vs. keeping a law) but sometimes they may just be different approaches in dealing with a legal issue. - Sometimes the legal alternatives may not be clear and will require deep thought from you - Do not just re-write ideas from the source, but instead make sure you have really thought about, and provide, reasoning. - Some suggestions might include: - Revoking (removing) a law - Making a new law - Amending a law -- including new or different criteria -- making a law stricter or easier to enforce - Providing other solutions -- increasing funding , education, trialling new programs, conducting a review, royal commission  Diagram Description automatically generated  Diagram, text Description automatically generated After considering alternatives, you need to reach a decision about which alternative is most justified having regard to legal criteria. - You do not write this in first person but rather this will be a conclusion you reach based on your analysis and evaluation. - Legal criteria → examples can be drawn from the following: elements of the rule of law; common law and/or statutory law; just and/or equitable outcomes In justifying your decision you could consider: - Purpose of laws - Features of effective laws - Why laws change - Balancing competing interests - Rule of law -- remember there are different features of rule of law that could be considered - Just outcomes - legally right, conforming that which is lawful or fair that which is fair and proper in the (or all) circumstances - Equitable outcome- even and impartial; balance between the rule of law, and the rights and freedoms of individuals and society; impartial and fair outcome or result where the statute law is silent, e.g. remedies in civil issues IMPLICATIONS Finally, in regards to the decision you have made you need to consider the implications. Implications: effects, result or consequences that may happen in the future; implied, not explicitly stated You should identify both positive and negative implications of your decision. It is okay to consider that there might be negative results and in fact shows a deeper level of evaluation. *[ analyse and evaluate legal issues to resolve or improve human rights in Australia.]* - Write concisely - Your response must be written in 600-800 words which is very difficult to do. - Every word sentence must add meaning -- only stick to what you are being assessed on. - Do not provide unnecessary definitions/explanations - It is very clear when you have copied from a source and you do not understand this -- ensure you provide your own explanation - Be specific in what you are saying -- general statements are not helpful - You must consider different viewpoints -- do not just discuss the one that supports our position - You must consider different legal alternatives before making a decision on which one you think is most justified - The stimulus is designed to prompt ideas. You do not need to analyse and use all stimulus like you might need to do in other subjects.