Legal Studies Revision PDF

Human Rights in Legal Contexts Legal Studies, z Topic 1 and 3  z Human Rights: The rights provided to all people regards of their status in society, including their race, gender, sexuality, financial status etc  Covenants, Treaties, Conventions: all terms use...

Human Rights in Legal Contexts Legal Studies, z Topic 1 and 3  z Human Rights: The rights provided to all people regards of their status in society, including their race, gender, sexuality, financial status etc  Covenants, Treaties, Conventions: all terms used to describe a legally binding type of document within international law (such as the ICCPR)  Multilateral: between 3 or more nations  Bilateral: between 2 nations  Bill of Rights: key rights given to all citizens of a country, usually prescribed in a constitution KEY TERMS (part 1)  KEY TERMS (part 2) z  Ratification: the legal process by which an internationally binding convention becomes the law of a domestic nation  States: the individual governments of differing nations  Sovereignty: the idea that all nations have independence in acting within their state and the right to have other nations not interfere with their decisions z THE MAIN FEATURES OF INTERNATIONAL LAW DEVELOPED FROM THE INTL. BILL OF RIGHTS Universal Declaration of International Covenant on Human Rights Civil and Political Rights  First document of international law dealing with  53 Articles (art 4 allows for prohibition in some cases) Human Rights, and the first component (in 1948)  5 parts, categorising rights and allowing for  30 Articles administration  No specific parts  The preamble makes reference to the support of the UDHR and its civil and political freedoms  Preamble commits states to supporting human  Has two optional protocols rights  The first allows for individuals to deal with  Declaration, meaning its not legally binding complaints against state parties with the UNHRC  The second prohibits the death penalty  Key rights incl. Right to Life, Right to Democracy and the Right to Jury Trial, Right to Non-  Key rights, Right to Freedom of Thought, Peaceful Discrimination etc Assembly, Free Association, Equality before the Law z International Covenant on Economic Social and Cultural Rights  References the UDHR and its Economic, Social and Cultural Rights and commits the parties to inalienable rights  31 Articles  5 Parts (final is on administration, 4 is monitoring)  It is monitored by the UN Economic and Social Council who track the progress of ratification and the extent to which it is being adhered to  It allows for individuals to make appeals in order to contest claims of violations of human rights against states z MAIN FEATURES OF PRINCIPAL TREATIES Convention Relating to the Status of Refugees (CRSR) Convention on the Elimination 1951 of Racial Discrimination 1966  Preamble recognises the important status of  The preamble commits states to taking the refugees and for all to enjoy rights necessary steps to eliminate racial and heritage discrimination and to combat  Key articles include the principle of non- racism refoulment, and the rights to Association, Right to Work, Right to Adequate Standard of  Contains 25 Articles, 3 Parts Living an Equality before the Law  Key articles include Equality Before the Law, Right to Work, Right to Adequate  7 Chapters Standard of Living and Right to Access  The 1967 protocol removed the geographical Government Services limits that only applied the Convention to  No optional protocol certain areas z MAIN FEATURES OF PRINCIPAL TREATIES Convention on the Elimination of All Forms of Discrimination Convention on the Rights of Against Women 1979 the Child 1991  Commits state parties to taking the  Commits states to recognise the inalienable necessary steps to eliminate any form of rights of children, and the importance of the gender discrimination, and recognises the family in society. It recognises the importance importance of women to societal of the development of the child in society development  54 Articles, 2 Parts  30 Articles, 6 Parts  Key rights include Freedom of Expression, Right to Family, Right to Adequate Standard of  Key Articles include the Right to Work, Living, Right to Life and Right to Education Right to Family, Right to Adequate Standard of Living, and Equality before the  Uniquely, it includes the right to be raised by Law or have a parental relationship z THE PROCESS OF RATIFICATION z The Human Rights (Parliamentary Scrutiny) Act 2001 (Cth) The Joint Parliamentary Committee on Human Rights The Statement of (JPCHR) Compatibility (SoC)  The Joint Parliamentary Committee on  The Statement of Compatibility is a document Human Rights is a parliamentary required to be submitted with every single piece Committee which examines all bills and of legislation in the explanatory memorandum matters referred to it by the Attorney- which outlines how compatible the bill is with General for human rights and international human rights and with international law law violations, or where it may be strengthened  It examines it against the seven core treaties, and  They submit a report on all pieces of is an expression of the legislators view on its legislation and matters which examine compatibility, not of the parliament how the bill strengthens or damages international law  This is required to be legislatively submitted but once again, failure to submit doesn’t prevent the  Failure to submit it doesn’t stop a bill from passage of a bill that violates human rights being passed z The Rights of States (Article 2.1 of the UN Charter)  Article 2.1 of the UN Charter establishes the principle of sovereign equality, whereby before the United Nations all states have the right to be considered equal to all others  This is regardless of their financial status, military capabilities, culture, type of government etc  It also gives them an equal vote with the United Nations  In basic terms, it is the concept whereby every nation has the same rights and abilities of all nations within international law z The Rights of States (Article 2.4 of the UN Charter)  Article 2.4 provides the right to Political Independence and Territorial Integrity  Political independence prevents the United Nations or any member of it from interfering in the political or legislative process of any member state  Territorial integrity provides that no member state, or the United Nations, will threaten the borders or land of any state (including its resources) z The Rights of States (Article 2.7 of the UN Charter)  Article 2.7 outlines a states rights to non-intervention within their domestic jurisdiction  This prevents the UN from taking military action in cases where they disagree with another countries actions, however there are exceptions  Chapter 7 of the UN Charter outlines when intervention can occur, including when it is necessary for the protection of that nations people and of the greater world, or they have committed ‘gross’ violations of Human Rights  This intervention can only be on the authority of the UN Security Council including the unanimous decision of all its permanent members z The UN and the UN High Commissioner for Refugees The General Assembly UNHCR  Made up of the 193 Member States  Protects and supervises refugees  Aims to reach goals to attain peace,  The ‘guardian’ of the Convention security and disagreement, safeguard Relating to the Status of Refugees human rights and the rule mod law, protect the environment, meet the  During periods of refugee displacement special needs of Africa and strengthen it provides assistance, such as clean the UN water and shelter etc  As a separate organ is the UNSC,  Finds solutions to assist all refugees which can authorise military action and  Aims to support voluntary repatriation, is made up of 15 nations, with 5 of resettlement and integration into the those being permanent (USA, UK, hosts community France, China, Russia) z The Primary Functions of the United Nations  There are 5 primary functions of the UN  1. Maintaining international peace and security  Achieved through diplomacy and mediation, helping peacebuilding  Also includes counterterrorism, disarmament, peacekeeping  2. Protecting Human Rights  The OHCHR leads responsibility for protection, including independent experts and peacekeeping  3. Delivering Humanitarian Aid  4. Supporting Sustainable Development  5. Upholding Intl. Law  Achieved through the court system z Key Rights initiated in Magna Carta and the RDA Magna Carta Racial Discrimination Act  Rule of Law, Equality Before  Right to Equality and Non- the Law Discrimination  Right to Fair Trial  Right to Work, Choose (encompasses multiple rights) employment and just and favorable conditions  Right to Own Property  Right to Education  Right to Democratic Participation z Key Rights initiated in SDA and DDA Sex Discrimination Act Disability Discrimination Act  Right to Equality and Non-  Right to Non-Discrimination Discrimination (also based on  Right to Work family or marital status)  Right to Education  Right to Work, choose employment and just and favorable conditions  Right to Education z The Express Rights of the Constitution  There are a limited number of express rights within the consitution:  Right to Freedom of Religion (s116)  Does not explicitly give the right, but prohibits the establishment of state religion or mandating specific religious exercise  Right against discrimination based on out of state residence (s117)  Case: Street v Queensland Bar Association (1989)  Right to Trial by Jury (for commonwealth offences) (s80)  Jurys verdict must be unanimous  Right to Free Interstate Trade (s92)  Travel, trade, or movement between the states cannot be restricted  Right to Just Compensation for Land (s51 xxxi)  If the government needs to acquire land for a particular purpose, they must provide just compensation z The Implied Rights of the Constitution  The High Court has found two implied rights, sourced from the constitution but not explicitly stated  These are not concrete, and are open to flexibility and could be overturned at any time z The Implied Right to Freedom of Political Communication  The right says that people, and the media, should be free to communicate on matters of politics and government  It was first established in 1992  Sections 7 and 24 of the Constitution hold that the Parliament must be chosen by the people, thus, it is implied that for a fair and informed vote to occur, this right must exist  Lange v ABC (1997)  David Lange was a former NZ prime minister who had a story ran against him by Four Corners regarding his political donations, but the ABC claimed that it had a freedom of speech regarding political communication  The High Court accepted the ABC’s defense, holding that indeed the right existed but also establishing it is not absolute, and that the ABC had defamed Lange z The Implied Right to Vote  S7 and s27 of the Constitution hold that the House of Representatives and the Senate must be ’directly chosen by the people’, thus establishing that for this to occur, a vote must be held  The right resides with the people and it is governed by the Commonwealth Electoral Act 1918 (Cth)  Topic 1, Done! z Topic 3: Human Rights in Australian Contexts z The Legal Processes for Resolving Human Rights Complaints – 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 z The Legal Process of Taking Court Action  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  z The AHRC z  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 z The International Process  There are international methods through the UN to resolve complaints, including through the commissioner for human rights. Two cases:  Toonen v Australia (1994). Brought against Australia at the UN Human Rights committee, it agreed that Tasmania’s law barring sexual relationships between men was unjust and violated the ICCPR. Tasmania disagreed with the decision, but the Fed did, passing an overriding law.  Nystrom v Australia (2011). Case held against Australia by a Swedish man who had lived majority of his life in Australia but was deported for an expensive criminal record. He had no link to the nation other than heritage. The case found that Australia deprived him of his right to enter his own country, landmark in the fact that a person not need be a legal national to be a citizen. z A preface for Rights: the 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 z The Rights we have in Criminal and Civil Contexts z Right to Free Speech  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  These two form the Freedom of Speech  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) z Limitations – Freedom of Expression  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 z Right to Protest and Free Assembly  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. z The basis in International Law – Freedom of Assembly/Protest  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 z Freedom of Religion  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 z Right to Democratic Participation  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  Dmocratic partiipation 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 z Exceptions - The Right to Democratic Participation  The Right has some minor exceptions  Notably, people under 18 are not able to vote, and you must be a citizen and not serving a prison term  This, however, does not prevent democratic participation  For many years, women and aboriginal people were unable to voter z Right to Trial By Jury  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 z Exceptions – Right to Trial by Jury  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 z Freedom from Discrimination  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 z The 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 z The ALRC 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 z The Queensland 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 z The Australian Human Rights Centre  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 z The role of the 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 z Done 