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57 Cards in this Set
- Front
- Back
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What is the Universal Declaration of Human Rights? |
The Universal Declaration of Human Rights (Universal Declaration) is an international document that states basic rights and fundamental freedoms to which all human beings are entitled. |
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Why is it important? |
provides the foundation for freedom, justice and peace. |
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What nations follow the UDHR? |
All countries of the world are bound, it has almost become like international customary law. A country cannot repudiate international customary law as it can treaty obligations. |
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What other documents has the UDHR led to the creation off? |
International Covenant of civil and political rights. International covenant of Economic, social and cultural rights. |
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What human rights are established in the ICCPR? |
-Freedom of conscience and religion, the right to be free from torture and the right to a fair trial. -Most of these rights are not absolute (have room for adaption). -Only the right to be free from torture and slavery are absolute. |
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What human rights are established in the ICESCR? |
-Addresses economic, social and cultural rights which include the right to adequate standard of living, the right to education, right to fair wages and the right to safe working conditions. |
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What is the Magna Carta? |
An important legal document that everyone is subject to the law and that no one is above it. It also paved the way for rights of individuals , justice and a fair trial. |
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What is the history of the Magna Carta? |
It was signed in 1215 at Runnymede. The reason it was created was because king John ruled with absolute power. He manipulated the law to create gain for himself at the dispense of his people. The Magna Carat was created by Barons and other who were against King Johns tyranny. |
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What impact does the Magna Carat have today in Australia? |
-Created limits to the governments power; a governments premise is definitive, developed an independent judiciary. -Rule of Law; foundation of the idea that no one is above the law. -Foundation of modern day democracy; People demanding a say in what type of society they wish to part of. established consultative government -Access to justice. |
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What is the rule of law? |
It is a very abstract term that i hard to define. However essentially means that no one is above the law and that that the law is applicable to everyone. |
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How does rule of law work with the separation of powers? |
Through the separation if powers their are many checks and balances in place to make sure one arm of government is not above another or the law. The judiciary (People who interpret the law) have the ability to overrule legislation and declare actions of the executive as unlawful. The executive have the power to implement laws. The legislature (parliament) acts as a check on the judiciary as it has the power to pass laws which override the decision of courts. |
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what are the main principles associated with rule of law? |
-fairness -rationality -predictability -consistency -impartiality |
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What do each of these principles stand for? |
Fairness/ ratioanlity: Rule of law applies to everyone equally Predictability:Certainty about what the law is and outcomes for breaking it Consistency: The law is applied in the same way Impartiality:That there is an impartial body free from influence from any other arm of government. |
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Relationship between human rights and the rule of law |
It ensures equality before the law, meaning everyone has the right to presumption of innocence, the right to challenge unconstitutional law and to challenge decision of government body. |
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What is common law? |
Body of principles or rules which have been created into law through the courts of England and laterally by judges in Australian courts. It is the area of law not covered by legislation or the constitution. |
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benefits of common law? |
1)Impartiality and competence: there is public confidence in the judiciary and this confidence promotes impartiality and the dedication of the judiciary. |
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Second benefit? |
2)Courts do not act in arbitrary manner: Judicial decisions must all be based of already determined norms and standards. These inbuilt restraints ensure fairness and equality for all who face the law. |
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Third benefit? |
3)It is a product of closely reasoned argument: Individual claims and rights are evaluated and assessed. Then decisions are formulated with regard to justice, reason and community values. |
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What are the common law restrictions of Human rights? |
Common law crimes protect fundamental institutions or values which are deemed important to the community. Offences such as murder, rape and assault etc protected personal physical integrity. Crimes such as larceny, fraud protected private property. Common law created restraints against causes of harm to people. It formed a body of rules which determined the boundaries for permissible and impermissible conduct. |
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What is the constitution? |
It is a set of rules by which a state runs. The Australian constitution was brought to effect in 1091. I doesn't have a bill of rights within it. It mostly just sells out relationship between commonwealth and the individual states/territories. |
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What human rights are protected in the constitution? |
There are not many within the constitution, their are express rights and more that are implied. The express rights include; -right to vote -protection against acquisition of property on unjust terms -Right to trial by jury -Freedom of religion -prohibition on discrimination based on state of residency. |
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What is an example of an implied right in the constitution? |
The freedom of speech. |
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What is statute law? |
Statute law also known as legislation refers to laws passed by parliament. Both State and federal parliaments have jurisdiction for passing statue laws. States are responsible for laws in regards to roads, transport, education etc. This is why these laws vary from state to state. Whereas federal parliament passes law that apply nation wide; i.e immigration |
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How does Statute law protect human rights? |
The Federal parliament has passed many laws that were created with the intention to protect people from certain types of discrimination and from breaches of human rights. Some of these legislation's include the ADA, DDA, RDA, SDA and The Australian Human Rights Commission Act. |
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What is the ADA? |
The age discrimination Act protects individuals from discrimination based on age. It can be applied to many scenarios of life such as workplace, education, access to services and goods. etc. It also promotes positive discrimination. This mean there are measures in place to aid people who are at a disadvantage because of their age, for example; superannuation and certain health initiatives. |
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Whats is an exemption of the ADA? |
The ADA is excused in regards to wages for younger and older people. It is completely legal for younger people to be paid less than older people. This is because i is accepted that as one gets older they tend to provide for themselves more and more. |
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What is the DDA? |
The disability discrimination act was created to reduce any discrimination towards someone with a disability, It was also created to ensure that people with disabilities have the same fundamental rights as the rest of the community and that the law applies the same to them as it would any other member of society. |
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Why was the ADA and DDA drafted? |
Both these Acts were drafted with the intention of standardizing the scope of rights around the country. |
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What is the RDA? |
The racial discrimination act looks to eradicate discrimination of the basis of an individual's race, color. ethnicity etc. It also looks to ensure that every appears before the law equally no matter what their race. |
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Why was the RDA drafted? |
To standardize the scope of rights around the nation and as a result of a greater influx of immigration of people all around the world and a growing cultural diversity. |
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What is the SDA? |
The Sex discrimination act intends to create equality between men and women. It also looks to see that there no one is discriminated based on sex, martial status, pregnancy etc and to eliminate harassment in the workplace, education institutions etc. |
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Why was the SDA drafted? |
To standardize the scope of rights around the nation and as a response to the feminist movement. |
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When were each of the acts brought to action? |
ADA: 2004 DDA: 1992 RDA: 1975 SDA: 1984 |
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What are two ways to create a bill of rights? |
1)Constitutional bill of rights 2)Charter of rights in statutory form |
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Bust the myth: We don't need a federal human rights act because our rights are already protected through common law, political system and constitution. |
To a certain degree our rights are protected by these bodies but there is still a great majority if not most of our human rights which aren't protected under legislation. For example the right to freedom from torture! Introducing a Federal Human Rights Act would certainly ensure that all fundamental human rights are protected by law. |
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Bust the Myth: The sovereignty of the parliament would be undermined by A federal human rights act. |
A human rights act would be completely compatible with the Australian parliament. It would compel the parliament to consider human rights implications of the law at present. It would help the balance between parliamentary sovereignty and a transparency of government decisions. It would create a stronger democratic system. |
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Bust the myth: It would only protect rights of minorities at the expense of the majority. |
A federal Human rights Act would be applicable to every Australian citizen and would not be closed off to only the minorities. Of course there would be a focus on the minorities as they are usually the ones who are suffering from breached of human rights but it no way is it closed off to others. |
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Bust the Myth: A human rights act would limit our human rights to those contained in the Act. |
The introduction of a human rights act would not limit the amount of rights available as it would work in turn with already existing legislation. If anything it will act as a mechanism to compliment and strengthen legislation already in place. |
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Bust the Myth: Could create tension between judiciary and government. |
This isn't necessarily a bad thing. It is inevitable that in a democratic society there should be proper tension between these two arms. As they are separate powers and oppose each other to make sure the balance of powers in maintained. |
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What is the Commissions role? |
The commissions provisions are governed by The Human Rights Commission Act 1986. There role is to promote and educate people on human rights standards. They also have responsibilities under the ADA, DDA, RDA and SDA. They can hear complaints and try to resolve them without taking the matter to court. |
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What is the complaint process? |
(Initial Inquiry) - (Complaint lodged) - (Obtain information) -(Conciliation) OR (complaint terminated, can be taken to court) - (Resolved) OR (not resolved)- complaint terminated and can be taken to court.) |
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What is conciliation? |
An impartial third party who is member of the AHRC tries to resolve the complaint with both parties. This can be conducted through a face to face meeting or even over the phone. Some of the possible remedies attained from conciliation are apologies, compensation, changes of policy etc. |
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What other resolving methods are employed? |
Arbitration and Mediation |
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What can the AHRC do if someone is breaching a human right. |
They do not have the jurisdiction to permit an act as unlawful, however even if taken to court no Australian court can permiss a remark. The AHRC can however, make recommendations to the parliament. These can stem from individual complaints or legislation that violates human rights. The parliament has no obligation Act upon these rights. |
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What is the role of the ACT human rights commission? |
To protect and promote the rights of individuals |
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What is the dialogue model? |
It models how all three arms of the government work in union to protect human rights. The ACT government assesses laws for compliance with human rights and reports to the parliament. The Legislative assembly passes laws after assessing them for compliance with HR. The courts and tribunals interpret the law to be compatible with HR |
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Give an example of the dialogue model. |
In the ACT if the supreme court finds that a law cannot be interpreted with accordance to Human rights it cannot just strike down the legislation. Instead it must issue a declaration of incompatibility which is taken up by the parliament. |
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Who are public Authorities? |
Any members of society who are associated with the greater public -ministers -public servants -statutory bodies -ACT police |
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How does the ACT human rights act hold public authorities accountable? |
It ensures that they their actions and decisions comply with human rights. They must give proper consideration to human rights. |
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What are the implications of breaches? |
In Canberra complaints cannot be addresses by the human rights commission as they do not have jurisdiction over this matter. All complaints have a right to be addressed by the ACT supreme court. However no damages may be rewarded, instead the court may express any other relief which it sees fit. |
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What is the case of Charlie Foster? |
In June 2012, Charlie foster was convicted of associating with criminals and sentenced to one year imprisonment. He had prior convictions, but none were indictable offences or in any way related to associating with gang violence. He simply made the mistake of being previously convicted criminals, housemate and long term friends. |
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Why are gang (Bikie) laws controversial in regards to human rights? |
Abrogates an individuals fundamental right to equality before the law, due process, freedom of movement and freedom of association. |
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What are the 4 broad approaches that emerge from this scheme? |
-mandatory detention -changing process of justice -consorting laws -control orders |
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Issue with control orders |
-places serious inferences on individual liberty -Based solely on membership one can be prohibited from associating with particular people or using a phone. -no requirement to break the law to be found guilty |
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issue with Consorting laws |
-effectively places onus on the accused to prove their innocence rather than the other way around. |
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Issue with Mandatory sentencing |
-corrodes several fundamental aspects of criminal justice system i.e. innocence until proven guilty and the ability for judges to assess a case based on its merits. |
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issue with Changes in process of justice. |
-Police commissioner can prevent info from being disclosed to particular bodies involved in the trial. -jury can take draw inference from a suspects failure to relay information during questioning GOES AGAINST RIGHT TO REMAIN SILENT. |
