Human Rights Summary Notes

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Human Rights - summary notes

Human Rights Legal Studies (Barker College)

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1. Nature and development of human rights

The definition of human rights

● Human Rights: are the rights and freedoms that are believed to belong to all human
beings. Human Rights are universal, indivisible, inalienable and inherent.
● Universal Declaration of Human Rights (UDHR) which the UN adopted in 1948 sets out
the reason we recognise HR - UDHR specifies that HR are inalienable and equal for all
● Key terms:
○ Universal: applicable to all
○ Indivisible: All rights are equally important
○ Inalienable: Cannot be taken away
○ Inherent: They are permanent
● Nation states have an obligation, both legally and morally to uphold these rights

Developing recognition of human rights

➔ The abolition of slavery:


● This largely began in the 18th century when rationalist people viewed slavery as violating
the rights of mankind.
● At the end of WWII, under Article 4 of the UDHR, slavery was prohibited.
● Today there are an estimated 27 million people enslaved worldwide (ILO) still

➔ Trade unionism and labour rights:
● As the world progressed and forced labour was made illegal, conventional labour was the
only legal means of securing large groups of workers.
● Employment law is a relatively new development.
● Safe working conditions, the right to paid holidays and minimum wage are all basic
labour rights.
● The areas typically protected by trade unions are:
● Minimum wage
● Safe working conditions
● Equal pay
● Long service leave
● Paid public holidays
● Maternity and paternity leave
● Annual leave
● Occupational health and safety laws
● Workers compensation
● Labour rights are protected by Articles 23 & 24 of the UDHR.

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➔ Universal Suffrage:
● Suffrage refers to the legal right to vote in a democratic election.
● The right to vote was recognised as a universal human right in Article 21 of the UDHR

➔ Universal Education:
● All human beings have the right to an education.
● In NSW, the Public Instruction Act 1880 (NSW) led to the government making education
free, secular, and compulsory.
● As a result, the Australian population has a 99% literacy rate.
● The right to free education is included under Article 26 of the UDHR.
● Education is no longer a desirable luxury, but a basic human right

➔ Self-Determination:
● This is a collective right belonging to a group.
● People of territory have the right to determine their political status.
● The right to self-determination is contained in Article 12 of the UN Charter & Article 1
of the ICESCR

➔ Environmental Rights:
● These are seen as essential to securing and promoting other human rights. Including, the
right to life.
● Stockholm Declaration (1972), Rio Declaration (1992) and Kyoto Protocol (1997) are all
attempts made by the international community to deal with global warming, spread of
epidemics, marine and atmospheric pollution.

● The Environment Protection and Biodiversity Conservation Act 1999 aims to protect the
rights of all flora and fauna communities.

➔ Peace Rights:
● These are the rights for individuals to live in peace and harmony (collective right)
● Article 51 of the UN Charter declares that states have the inherent right to individual or
collective self-defence if an armed attack against them occurs.
● Under Article 39 of the UN Charter, the UN Security Council can authorise actions to
maintain or restore peace
● The International Criminal Court has jurisdiction to try individual people for war crimes
and crimes against the international community.

Formal Statements

➔ Universal Declaration of Human Rights (UDHR):


● The first declaration was written by the UN

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● Became part of international customary law, and continues to monitor and report on the
state of human rights around the world.
● The declaration is soft law as it does not create legal obligations upon states.
● Influenced by NGOs → media, Amnesty International etc.
● Been a catalyst for more than 200 treaties, conventions, declarations, and bills of rights
across the world.
● Part of international customary law ⇒ concepts that have developed in a way that has
endured time to the extent that they are widely accepted

➔ International Covenant On Civil & Political Rights (ICCPR):


● The ICCPR aims to protect people from arbitrary use of power by a government and
uphold the rule of law.
● It also acts to protect individuals from oppressive governments.
● All signatory countries are obliged to give legal recognition to civil and political rights;
however, countries can have reservations.
● For example, Australia reserves the right to mandatory detention of asylum seekers due to
security.
● Signatory countries are monitored by the Human Rights Committee, which reports on
states and investigates reported violations.

➔ International Covenant on Economic, Social and Cultural Rights (ICESCR):


● Hard law
● Approved in 1966, but came into effect in 1976
● Includes rights to education and standard of living
● Never been ratified in African countries
● The ICESCR contains labour rights such as fair working conditions, fair wages and trade
unions are all covered in the covenant.

2. Nature and development of human rights

Promoting and Enforcing Human Rights

➔ State Sovereignty:
● Authority for a state to make decisions on behalf of itself concerning domestic and
international issues.
● State sovereignty contains limitations on the basis that states have an obligation to adhere
to international documents that it has ratified.

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● State sovereignty is an important feature of international law as it gives nation-states


autonomy with the responsibility to make decisions in the best interests of the state’s
people.
● State sovereignty means that states can simply ignore international documents if they
deem it to not be in their own best interests.
● It can promote human rights by morally binding the state to be responsive to human
rights issues, and a state may respond to this by enacting domestic legislation to comply
with international obligations.
● An example of this is Australia enacting the Racial Discrimination Act 1975 (Cth) in
compliance with the UDHR.

The roles of:

➔ United Nations:
● The UN is an intergovernmental organisation that came into existence after the end of
WWII.
● The UN has substantial influence over world order.
● Their main aim is to promote world peace and enforce human rights.
● The UN has 193 members
● Australia is a member of the U.N. since the end of WWII
UN General ● Representatives from all member states and each state have
Assembly equal voting power.
● Main forum for international discussions, many relating to
human rights
● UN Human Rights Council reports directly to UNGA.

UN Security Council ● Has responsibility for the maintenance of peace and security.
(UNSC) ● Exercises power through legally binding resolutions.
● Can authorise peace-keeping, military action, or sanctions.
● 5 permanent members (P5) – France, USA, Russia, China,
UK
● Each country has “veto power”
● The UNSC has ten non-permanent members with a two-year
term.
● To many people, veto power is seen as being ineffective in
dealing with international issues, including human rights
abuses.
AGAINST:
Veto power prevents the UNSC from acting on the will of the
majority. The UNSC has been successful in resolutions (East Timor
1626) The Veto power can be hijacked by petty national interests
rather than enabling resolutions to be passed on merit. The P5 is the

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only country to have nuclear arsenals. Veto power gives these states
the power to express their disagreement with an international issue
within the system, rather than through nuclear force. The P5 does not
reflect the geopolitical reality of today. There is no requirement in the
UN Charter for the P5 to be geopolitical realities.

Economic and Social ● Includes 54 members who meet annually.


Council (ECOSOC) ● The council includes committees that discuss economic,
social, environmental, and humanitarian issues.

UN Secretariat ● This is the main administrative body of the United Nations,


consisting of 40,000+ staff worldwide

International Court ● Advisory only


Of Justice (ICJ) ● Has jurisdiction to settle disputes submitted by member states
● Produces advisory opinions on international law.

Office of the UN ● This is the main administrative agency in the UN Secretariat


High Commissioner that works to promote and protect human rights.
for Human Rights ● It aims to advance universal ratification and implementation
(OHCHR) of the UDHR and human rights standards and promote
universal enjoyment of human rights.
● It also provides support to other UN human rights bodies
(AHRC)

UN Human Rights ● This is an intergovernmental body established in 2006.


Council (UNHRC) ● The council makes recommendations regarding human rights.
● It also has a complaints procedure that allows individuals,
rather than states, to bring issues to the attention of the
council.
● The adding of the USA to the council in 2009 – strengthened
its ability and effectiveness due to the influential nature of the
USA in world order.
● The council has been criticised for its level of effectiveness
by scholars, on the basis that it acts in political interests rather
than in the interests of human rights.

➔ Intergovernmental Organisations:
● These are created by agreements between states.
● The United Nations is an IGO, established by the UN Charter in 1945.
● INTERPOL and the World Trade Organisation are also IGO’s
● The Commonwealth of Nations is an IGO compromised of 54 members including
Australia.

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➔ Courts, Tribunals and Independent Statutory Authorities


■ International Court Of Justice (ICJ):
● This is an advisory organ of the United Nations.
● It has heard few cases since its establishment.
● The strongest criticism lies in the fact that the ICJ requires the consent of state parties to
hear matters – therefore, its jurisdiction is limited.

■ International Criminal Court (ICC):


● ICC was established in 2002 to prosecute international crime.
● The ICC is not created for human rights violations specifically, but it does hear matters
relating to the most serious international crimes, most of which involve a breach of
human rights.
● The ICC can prosecute individual people rather than states.

■ Other authorities that promote and enforce human rights:


● Human Rights Committee is quasi-judicial and assesses member states and their
compliance with international documents regarding human rights.
● Citizens can complain directly to the committee. The decisions are not enforceable, but
they are highly influential.

➔ Non-Governmental Organizations:
● These are organisations independent of the government.
● Examples of NGOs include The Red Cross, Amnesty International, and Human
Rights Watch.
● NGOs play a role in informing the global community of human rights violations and
progress.
● NGOs research, document and investigate human rights cases.
● NGOs are effective because they are independent of governments and political bias.
● They work to inform the general public of what governments may not want them to
know.

➔ The Media:
● The media often work closely with NGOs.
● They can have a significant influence on the general public.
● However, this is only in countries with freedom of the press.
● Restriction of internet access/television means that the media is not as effective in some
countries.
● The rights and responsibilities of the media and individuals are included in Article 19 of
the UDHR.

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In Australia:
The incorporation of human rights into domestic law

● HR within Australia:
○ Common Law
○ Statute Law
○ Constitutional Law
○ Codified & incorporated from ratified intl law

The Roles of:

➔ The Constitution, including division of powers and separation of powers


● Constitutional Rights:
1.Vote (s41)
2.Trial by jury in indictable cases (s80)
3.Freedom of religion (S116)
4.Protection against govt acquisition of property on unjust terms (s51)
5.Move freely between states (s117)
6.Freedom of political communication (freedom of speech but only in this context) (1992
addition)
● Express rights – rights specifically written in the Constitution e.g. right to vote
● Implied rights - the High Court has found that certain rights must have been intended in
order for the Constitution to function effectively e.g. implied right of freedom of political
communication

● Division of Powers:
● Division of powers – the doctrine whereby there are 3 government levels and some
jurisdictions are exclusive, specific, concurrent & residual
● This supports HR as it ensures:
○ no one level of govt. has all the power
○ helps reduce the chance of corruption & tyranny
○ ensures that a many people’s voices are being heard
○ Ensures resource efficiency – more ppl helping make laws

● Adani Coal Mine (2010 - present)


● Jurisdictional powers mean that the mine is state govt jurisdiction but native title is fed
govt
● Owners of native title over the proposed site lose a court appeal against the granting
leases

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● Adani downsizes the project from $16.5 billion 60-million-tonnes a year mine to a
10-to-15 million tonnes a year mine costing about $2 billion
● federal government re-approves mine subject to "36 of the strictest conditions in
Australian history“
● A compromise was reached where Adani was asked to improve their enviro mgmt. plan
● Debate between federal and state government as they each had different priorities
(economic/financial vs environmental)
● QLD approved the mine
● Then Aust govt took the case to Federal court but lost

● Tasmanian Dam Case reflects the same as Adani Coal mine

● Separation of Powers:
● separation of powers – the doctrine whereby there are 3 principle bodies in the legal
system – legislative, executive & judiciary
● This supports HR as it ensures:
○ no one body has all the power
○ helps reduce the chance of corruption & abuse of power
○ Ensures resource efficiency – more ppl helping handle different aspects of the law

➔ Statute Law:
● Statute Law - Legislation developed by Federal or State government
● Privacy Act 1988 - protect the personal information they hold from misuse, interference
loss
○ unauthorised access
○ modification or disclosure
● Freedom of Information Act 1982 - right of access to government documents
○ Ministers
○ most agencies
● Racial Discrimination Act 1975 (Cth)
● Anti-Discrimination Act 1977 (NSW)
● Sex Discrimination Act 1984 (Cth)
● Australian Human Rights Commission Act 1986 (Cth)
● Disability Discrimination Act 1992 (Cth) • Age Discrimination Act 2004 (Cth)

➔ Common Law Rights:


● Gives judges power to apply law to each individual on a case by case basis rather than
only following statute law – judicial discretion
● Common Law - Laws developed by judges over centuries (some we have taken off
British system)

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○ Presumption of innocence
○ Right against self-incrimination
○ Right from freedom to be randomly searched
● habeus corpus - Right to appear before court or judge to determine whether there is
lawful authority to detain the person if a writ was written.
○ procedural fairness
○ Right to fair hearing
○ Right to be free from bias
○ To be supported by evidence & to be able to look at the evidence
● Right to a fair trial - Stems from procedural fairness
● Issues with Common Law:
○ Can be overridden by statute law e.g. Anti-Terrorism Laws (breached many HR
– presumption of innocence, indefinite detention, etc.) → Dr Haneef story
○ Must be a relevant case for it to be created
○ Must be relevant to the case it is being applied to

● Legislative
● Any legislation that upholds HR developed by parliament falls under this category - e.g.
Discrimination Act, Gender Discrimination Act, Age Discrimination Act, Disability
Discrimination Act, etc
● Executive
● Any police scenarios whereby the police are helping uphold HR in some capacity
● A situation that doesn’t really promote HR is the police powers under the Anti-Terrorism
Laws we have at present
● Executive powers of PM and Premiers during Covid times to make executive decisions
and laws quickly to help protect citizens.

➔ Courts and Tribunals:


● Some cases that relate to HR
● Ben Roberts Smith war crimes public court case as well as ADF closed
● Mabo v Queensland 1992
● Croome v Tasmania
● Toonen v Australia
● Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) - High Court of
Australia struck down the Australian government's offshore processing policy for asylum
seekers. The court held that the policy breached the Migration Act 1958, which required
that asylum seekers be processed in Australia. The decision had significant implications
for the treatment of asylum seekers and the protection of their human rights
● Love and Thoms v Commonwealth of Australia (2020) - High Court ruled that
Indigenous Australians cannot be considered "aliens" under the Australian Constitution

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even if they are born in other part of the world like these 2 were and therefore cannot be
deported. The case involved two Aboriginal men facing deportation due to their criminal
convictions - establishing precedent and protecting from arbitrary deportation.

➔ Tribunals:
● The Fair Work Commission our workplace relations tribunal - they are responsible for:
○ resolving employment-related disputes
○ setting minimum wages and conditions
○ ensuring compliance with workplace laws
○ protecting human rights in the workplace by addressing issues of discrimination,
harassment, and unfair treatment, ensuring that employees' rights are upheld.
● Administrative Appeals Tribunal is an independent tribunal that reviews decisions
made by Australian government departments and agencies. individuals can ask the AAT
to review of decisions that may impact their rights and entitlements. It has jurisdiction
over a wide range of matters, including:
○ Migration
○ social security
○ veterans' affairs
○ administrative law

➔ Non-Governmental Organisations (NGO)


● Australian Human Rights Commission (AHRC)
● An independent national body, it was established under the Australian Human Rights
Commission Act 1986 (Cth) to deal mainly with alleged violations of the Racial
Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth), but to also
report and deal with human rights generally. States and territories also have equal
opportunity or anti- discrimination bodies to oversee compliance with state human rights
laws.
● Their roles include to:
○ receive and investigate complaints into discrimination and breaches of HR
○ promote public awareness about HR and provide legal advice
○ conduct public inquiries into HR issues and make recommendations
○ give advice and make submissions to parliament and govt on the development of
laws, policies and programs consistent with HR
● They inquired into children in immigration detention, people with mental illness, racial
violence and same-sex entitlements & released a report in 2015 called Forgotten Children
report The Forgotten Children: National Inquiry into Children in Immigration Detention
(2014) | Australian Human Rights Commission
● Amnesty International Australia
● Human Rights Watch Australia

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● Human Rights Law Centre


● Human Rights Council of Australia
● Australians for Native Title and Reconciliation (ANTaR)
● Australian Council for Human Rights Education (ACHRE)
● Australian Lawyers for Human Rights
● National Children’s and Youth Law Centre
● ActionAid Australia
● United for Human Rights

➔ The Media
● UN accuses Australia of systematically violating torture convention - The Guardian

➔ A Charter of Rights (arguments for and against)

ARGUMENTS FOR A CHARTER OF RIGHTS ARGUMENTS AGAINST A CHARTER OF RIGHTS

High community support – 87.4% of submissions to the Without the Charter of Rights, Australia is not notoriously
National Human Rights Consultation breaching human rights

Redressing the inadequacy of human rights protections Undermines parliamentary sovereignty


in Australia currently (implied rights of the Australian
Constitution)

Centralising the sources of human rights (rather than Australia could face challenges similar to the U.S.
the Constitution, common law, statute law and the High regarding their gun laws, as changing something like the Bill
Court of Australia) of Rights is no easy task.

Improves Australia’s international standing concerning There is an economic cost surrounding the creation of the
human rights Charter

Bringing Australia in line with other similar democracies Unnecessarily legalised human rights
such as Canada, New Zealand, America & England

Would help to promote a stronger culture of respect and


appreciation for human rights

Legislative Charter of Rights:


● Charter of rights could be legislated.
● If legislated, the protection of human rights is at the will of members of parliament,
which means that it could change at any time.

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● A legislative Charter of Rights provides a uniform and codified method of protection to


citizens.

Constitutional Charter of Rights:


● A constitutional charter of rights offers a better level of protection than a legislative
charter of rights.
● To implement a constitutional charter of rights, a country needs to implement a
referendum, which could be very costly, time-consuming, and not always successful.

3. Investigation of a contemporary issue


● Treatment of Refugees:
United Nations High Commissioner for Refugees states that:
● Everyone has the right to freedom from fear. Everyone has the right to seek asylum from
persecution. These human rights don't change based on race, religion, sex or nationality.
Human rights don't change based on whether you seek safety by land, air or sea.

● Cases within Australia:


● Australia Treatment of refugees in Nauru:
○ Australian government paid boat skippers to turn boats of asylum seekers around
and forcibly made to go to Nauru
○ More than 1,200 asylum seekers were forcibly transferred to Nauru were treated
with abuse and inhumane treatment violating multiple human rights.
○ UN member states challenge Australia’s refugee and asylum polices
○ The UN Human Rights Council on 20 January 2021 held a Universal Periodic
Review (UPR) hearing on Australia's human rights violations of the treatment of
refugees in Nauru. Issues were raised including the: offshore processing of people
seeking asylum, indefinite immigration detention, lack of legislation to prohibit
detention of children, refoulement, and lack of compliance of Australia’s asylum
and border management policies with international law.
○ Australia was forced to shut its Manus Island detention centre after PNG’s
supreme court ruled it was an illegal detention.
○ The detention centre on Nauru – Australia’s “enduring form” of offshore
processing – is currently in abeyance (suspension) , on standby for future arrivals.

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