AOS 3 notes PDF

Preview

Summary

VCE legal studies Unit 2 year 11 AOS 3 notes...

Description

UNIT 2: AREA OF STUDY 3: RIGHTS CHAPTER 15 15.1- Introduction to Rights List of our rights: - Freedom of speech - Right to religion - Right to food and water - Right to education - Right to access of health/ medical assistance - Freedom of assembly - Protection by the state/ law - Right to access law - Freedom of marriage - The right to life What is a right?  A right is an ability to do or have something  A moral or legal entitlement Five fundamental freedoms in Australia 1) Freedom of speech: being free, within legal reason, to write or speak on any topic of choice. This includes criticising the government without being arrested. 2) Freedom of association: being free and able to join any lawful group or organisation e.g. political parties, unions 3) Freedom of assembly: free to meet with others in public and private places, including to meet to protest or peacefully demonstrate for a change in the law 4) Freedom of religion: being free to practise any lawful religion 5) Freedom of movement: being free to move from one state or territory and enter or leave Australia at any tine How Australia protects rights

Statute law, Charter of Human Rights, Common law, Australian constitution

15.2- Protection of Rights through Statute Law and the Victorian Charter Statute law Acts of parliament have been passed through Commonwealth and State parliament to protect a wide range of rights. This also includes upholding international treaties, e.g. United nations in Victoria and ACT, both state parliaments have passed legislation to protect specific and basic human rights. This is known as the Human Rights Charter (grant permission to say someone has authority and access, only exists for Victorians and people in the ACT to understand their rights and freedoms, published 2006) Protection of rights through statue law: the types of rights protected through statute law: - The right privacy - The right to security of person - The right to freedom from discrimination - The right to vote - The right to freedom of speech (protected to a limited extent) Rights made through statutes, can also be abrogated (overruled/cancelled) by parliament at any time, as they are the supreme law-making body. (can be seen as a problem associated with this, our right can be limited therefore)

Human Charter of Rights What is it? The Charter of Human Rights and responsibilities is a Victorian law which details the basic rights, freedoms and responsibilities of all people in Victoria. It is focused on the relationship between the government and the people it serves. there are 20 basic human rights addressed in the Victorian Charter. These include - The right to life - The right to safety - The right to movement - The right to a fair hearing - The right to access and be treated equally by the law - Other rights relating to criminal proceedings

Strengths and weaknesses of Statute Law and the Human Rights Charter STRENGTHS WEAKNESSES Parliament can amend statutes and charters to Because parliament is the supreme law-making incorporate further rights, as society changes body, it can amend statutes and charters, so rights may become limited Parliament can include limitations or Statutes and charters are often detailed and restrictions in statutes or charters so protected precise, and protect human rights specifically rights are not always absolute rather than being implied The rights in statute and charters are not as Rights contained in statutes are enforceable well protected as rights contained in the and need to be recognised by government constitution as they can only be removed with organisations public approval

Human Rights Charter questions a. Outline 3 rights set in the charter 1) Your right to freedom from forced work: involves the right to freedom of slavery 2) Your right to freedom of expression: includes the right to say what they think 3) Your right to peaceful assembly and freedom of association: includes the right to assemble in groups peacefully b. Example of an exceptional circumstance and why it’s necessary This may be a necessary part of the Charter to ensure the government always has absolute power over the people, but by still maintaining their freedom and rights. An example of this is seen in section 26. c. Parts (7) and (8) in section 31 This means that any time Parliament has the power to override a declaration made by stature or common law. Case: detaining children in prison is unlawful a) What are the facts of the case - The housing of 15 juvenile detainees in a high-security Barwon prison has been ruled unlawful by the Supreme Court - The Human Rights Law Centre and Fitzroy Legal Centre has argued against young offenders being held at the adult prison - The argued the children’s human rights were being breached - Justice Greg Garde ordered that they be removed the following day from the prison - Many of the human rights of the children were not considered including the right to not be treated in a cruel and inhuman manner b) How were the plaintiffs right breached under the Charter of Human Rights? - The right to education not upheld - The right to safety not upheld - The right to movement not upheld c) What was the government’s response? Why? The government responded to this issue by relocating the children to a juvenile prison as it was realised the impact this prison had on the lives of the children and that their rights were breached.

Case: Joel Wilkinson, former Gold Coast Suns, Australian Football League a) What are the allegations that Joel Wilkinson is bringing against the AFL? Joel Wilkinson is binging allegations against the AFL that he suffered years of racial discrimination and abuse. His allegation also includes the allegation of sexual abuse and the loss of past and future wages. b) What is the relevant legislation relating to this dispute? Civil law. c) What are his claims in relation to this dispute? Racial abuse, sexual harassment, loss of wages. He is claiming for a racial vilification.

15.3- Protection of Rights through Common Law

Common law: court made/ judge made/ case made law -

-

When a case comes before the courts and they are required to interpret the legislation surrounding the case, this allows courts to create new precedents and law that must be followed by all lower courts This has also been done in relation to the protection of rights Common law can be abrogated or codified by Parliament, as they are the supreme lawmaking body.

Some examples of common law rights: - The right to silence - The right to a fair hearing - The right to freedom of movement - The right to a limited freedom of speech - ‘The Mabo Case’- Mabo v. Queensland (1992). This case enabled Indigenous Australians the right to native title, where there was an unbroken connection to the land. In this case the High Court established that ‘tera nullius’ was invalid and had been applied incorrectly. Hearsay Strengths and weaknesses of common law STRENGTHS The courts and judges are independent of parliament and establish precedent free from political pressures Courts and judges are able to make decisions and establish rights in areas where the parliament has not Courts are able to highlight to parliament gaps in the law that protect rights, which may encourage parliament to change the law to further protect rights

WEAKNESSES Common law rights are not always easy to define or identify (as opposed to statutory rights) Courts must wait for a case to come before them to be able to declare the existence of rights Judges are limited in applying the law to the case that is before them, they cannot simply ‘create rights’ in any dispute

15.4- Rights protected through the Australian Constitution

The Constitution is one of the most important documents in Australia. It establishes the law-making powers of parliament at both levels and includes a number of express and implied human rights. Express rights: those rights that are explicitly outlined in the Constitution - Section 51 (xxxi): the right to be compensated for acquisition of property by the Commonwealth, on ‘just’ terms - Section 80: the right to trial by jury for Commonwealth indictable offences. Though limited as most offences occur in the state - Section 92: the right to free interstate trade and commerce, essentially the right to freedom of movement, and discrimination between the states - Section 116: freedom of religion - Section 117: free from discrimination by the Commonwealth on the basis of the state that you reside in Implied rights: rights that are not directly expressed in the Constitution, but have been expressed and protected through High Court interpretation - The right to freedom of political communication: the ability to discuss and debate upon political issues *An important thing to remember is that the Constitution can only be changed or altered through a referendum. Thus, the Australian public would have to vote a majority to change or remove a section of the Constitution, that protects our rights Strengths and weaknesses of the Australian Constitution STRENGTHS Express rights cannot be changed unless through a referendum

All rights protected by the Constitution are fully enforceable through the High Court and any statute that is found to breach those rights can be declared invalid The courts can interpret the meaning of the words and phrases in the Constitution, so it can keep pace with changes in community values

WEAKNESSES Rights contained in the Constitution are difficult to change due to the referendum process, rights may therefore lag behind attitude and community changes Very few rights are expressly protected under the constitution

The High Court cannot interpret the meaning of the constitution and declare an infringement of rights until a case is brought before it

15.5 & 15.6- declarations and Treaties that protect the Rights of Australian Citizens

Key terms Treaty= an agreement that is made between two or more countries that is binding under international law Declaration= a formal statement, though in legal terms it is more focused on a binding agreement or judgement by the courts that states it will essentially protect rights of parties Ratify= to agree, expressing content International Court of Justice= established by the United nations, to resolve disputes between countries/nations International declarations that protect the rights of Australian citizens Universal Declaration of Human Rights (UDHR) - This was created in 1948 by the united nations - It is a statement of rights applicable to all humans, regardless of gender, nationality, age etc - It sets out ta long list of basic human rights including the right to life, liberty, security of person, the freedom of expression Other declarations Declaration of rights of indigenous people- created in 2007 and supported in Australia in 2009 Universal declaration on cultural diversity- adopted by UNESCO in 2001 Enforcement of international conventions and treaties - There is no international court that monitors and imposes sanctions on countries that infringe upon an international treat or convent - The international court of justice is there to resolve disputes between nations How declarations and treaties influence the rights of Australian citizens Document – Convention on the Rights of the Child Purpose- protect rights of all children Legislation (how does it protect rights)- Migration Act (1958), Family Law Act (1975), Working with Children Act (2005)

15.7- the approach of the United States in Protecting Rights

Constitutional Charter vs Statutory Charter - The US has their rights in the Constitution based on a Constitutional Charter approach - Australia has their rights in the Constitution in a Statutory Charter approach CONSTITUTIONAL CHARTER OR BILL OF RIGHTS STATUTORY CHARER OR BILL OF RIGHTS An approach where a nation’s constitution An approach where a nation protects a included a comprehensive list of the basic rights comprehensive list of basic rights of the people of the people through the passing of an Act of parliament As the rights are entrenched within the The act is not part of the nation’s constitution, constitution, they are express rights that can but a separate statute that can be changed by only be removed or altered by changing the the parliament that passed the act at any time Constitution. They cannot be changed by an ordinary Act of Parliament Includes countries such as the UK, Australia and Includes countries such as the US, South Africa New Zealand and Canada

The main ways in which the US protects rights - It Constitution, through the Bill of Rights - In the structure of its Constitution - Through implied rights - Through international documents The Bill of Rights - Their Constitution expressly contains a comprehensive list of broad rights of the American people - More specifically, the Us Bill of Rights consists of a series of amendments or rights of the American people - The amendments are rights that are enforceable by the Us Supreme Court - Because they are entailed in the Constitution, they can only be changed by changing the US Constitution, difficult to achieve  needs approval of two-thirds of both houses of Congress and three-quarters of the 50 US states Structure of the Constitution - The Us protects rights through the structure and text of the Constitution - The Constitution establishes various systems and parliamentary principles that indirectly protect the rights of the American people Implied rights - The US Supreme Court has the power to enforce the rights of the American people, including the rights protected by statute law and the US Constitution - The US Supreme Court can also imply the existence of rights when resolving constitutional disputes International conventions and treaties - Like Australia, the US also protects a range of basic rights by being a signatory to international human rights documents - However, many of the major international treaties to which the US is a signatory have not yet been fully ratified through the passing of local, state and federal legislation

Comparison between Australia’s approach to protecting rights and the USA’s Similarities:

-

Both US and Australia are divided into sates, these states have individual powers to make rights - Both have a federal system - Both have signed international treaties to uphold rights - The highest court has the ability to apply the existence of rights - Both constitutions indirectly protect the rights of individuals - All rights expressly stated in the Constitution can only be altered or removed by changing the Constitution itself - Both Constitution indirectly protect the rights of individuals by including concepts and principles within their structure Differences: - Much more difficult In the US to change the Constitution - US has a bill of rights, whereas Australia does not have a bill of rights  the way rights are expressed in the constitution is different - Is that the process of changing rights  the Australian Constitution requires a referendum whereas in the US it requires two-thirds of the Congress and three-quarters of all 50 states. - Australia has signed and ratified more international human rights treaties than the US - In Australia, the High Court does not award a remedy to a party whose rights are breached, whereas in the US, a remedy can be awarded to the party who has suffered a breach of rights - The US and Australia differs by the fact that Australia’s high court can declare legislation that breaches a constitutionally protected right to be invalid, whereas this only happens under the US’s Supreme Court

15.8- Possible Reforms to the Protection of Rights in Australia

Questions 1, 2 and 3, 5 3 possible reforms to the protection of rights in Australia include: - Introducing a national charter or bill of rights - Amending legislation and systems to provide increased protection to minority groups - Increasing the availability of legal aid and assistance

Should Australia have a national charter or bill of rights? - Australia is the only Western democracy in the world that does not have a federal constitutional or statutory charter or bill of rights - It only contains 5 express rights  provides some structural protection of rights - Those in favour of adopting a charter or bill of rights would believe it would strengthen the protection of rights in Australia by clearly stating the basic rights of all Australians, it would make governments in Australia more accountable for the improvement of rights legislation - Those not in favour of this believe the basic rights of Australians are already protected by hundreds of Acts of Parliament and it is not necessary Providing increased protecting to minority groups - Another possible reform to the improvement of the protection of Australian rights is to emend existing legislation to improve legal processes, government policy and the provision of services in certain areas - Includes Indigenous Australians, asylum seekers and people with a disability - Includes providing access to health care for these minorities Providing greater access to legal aid and assistance - The ability of an individual or group to pursue a matter can be limited due to the cost and time involved in taking a case to court - For example, a person may be discouraged from taking a case to court because they cannot afford the cost of legal representation - To address this issue, more state and federal funding could be allocated to legal aid and assistance bodies such as Victoria Legal Aid Page 521 questions Q1. A constitutionally entrenched charter of rights and a statutory charter of rights differ as a constitutionally entrenched charter of rights is a set of rights that cannot be altered or removed unless a referendum is held. A statutory charter of rights is a set of basic rights that Parliament has the power to change. Q2. It is unlikely that Australia will ever have a constitutionally protected charter of rights because Australians already have their rights adequately protected by Acts of Parliament individuals who feel their rights are not protected by the law can try to influence the government to introduce a change in the law and Australia has already adopted and ratified many major international treaties. Q3. When pursuing a legal case which involves the breach of rights, the individual may face difficulty in paying legal costs. A reform that could address one of these difficulties may be state and federal funding which could allocate legal aid such as Victoria legal Aid to help these people pay their costs.

Group task case: King v Jetstar Airways Plaintiff: Sheila King Defendant: Jetstar Airways

Issue: she was in a wheelchair, not even seats on plane with wheelchair access, however she had booked it prior and believed they were discriminating based on her being disabled (23 September 2008) Right which was violated: section 24 of the Disability Discrimination Act 1992 She appealed after losing the case the first time (federal Court)...