HUMAN RIGHTS NOTES

Principal focus
Through the use of a range of contemporary examples, students investigate the notion of human
rights and assess the extent to which legal systems embody such human rights and promote them
in practice

Themes and challenges to be incorporated throughout this topic

- the changing understanding of the relationship between state sovereignty and human rights
- issues of compliance and non-compliance in relation to human rights
- the development of human rights as a reflection of changing values and ethical standards
- the role of law reform in protecting human rights
- the effectiveness of legal and non-legal measures in protecting human rights

THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS

Learn about: Learn to:

● The definition of human rights ● Define human rights

Human rights = the fundamental entitlements of every person simply due to being a human
- Transcend culture, ethnicity, religious orientation, nationality
- They are:
➔ Universal = apply to all regardlessly
➔ Indivisible = all humans are equally important
➔ Inherent = birthright of humans
➔ Inalienable = can’t ever be taken away
- Recognised internationally by the Charter of the UN 1945 and in the UDHR 1948
- Rights aim to protect individuals from injustice
➔ However, not all people uphold them towards one another
➔ State sovereignty and political will poses a barrier to governments exercising human
rights
- Rights are not necessarily absolute → limits on freedom of speech.e.g. Not inciting violent acts
through speech

Types of Human Rights

- Civil and political: ‘first-generation rights’ → the first to be recognised historically (18th C)
➔ Civil rights = involve being a free citizen. e.g. Freedom of thought, speech etc
➔ Political rights = involve full participation in government. e.g. Right to vote
➔ Belong to all humans
 ➔ Protect individuals from the arbitrary exercise of power by the state - reduces state
interference
➔ Eg. right to vote, assemble, freedom of speech, free of torture and abuse, protection
from the law (e.g. lawyers)
➔ Art 3 - 21 UDHR, Inter Convent on Civil + Political Rights (ICCPR)
- Economic, social and cultural: ‘second generation rights’ → concerned with the material and
cultural wellbeing of people (19th C in response to poverty + industrial revolution)
➔ Economic = production, development and management of the necessities in life. e.g.
Equal pay, an adequate standard of living, health, education
➔ Cultural = assist in preserving and enjoying one’s cultural heritage. e.g. Participation
of culture in the community
➔ Social = give people security as they live and learn. e.g. Schooling, social security
➔ Art 23-27 of UDHR + Inter Conven on Economic, social and cultural rights (ICESCR) 1966
➔ Often requires gov action e.g. an adequate health system requires gov to spend
money on health services
- Collective, such as environmental and peace rights, the right to self-determination: ‘the third
generation’ → emerged in recent years
➔ Belong to ‘peoples’ as a whole - rights are collective rather than individual in nature
➔ Right to self-determination = collective right of peoples to govern themselves
➔ Eg. right to the continued survival of a race of people - protected by the prohibition
of genocide
➔ Eg. right to freedom of association, freedom of religion, prosperity, benefits from
economic growth, social harmony

DEFINE HUMAN RIGHTS

- Human rights are defined as the fundamental entitlements of every person, simply due to
being a human. These

Learn about: Learn to:

● Developing recognition of human rights Outline how human rights have changed and
developed over time
Investigate the evolving recognition and
importance of universal human rights

- The term ‘human rights’ emerged in the 1940s → however HR has roots in ancient times. e.g.
Ancient Babylonians recognised the need to help the poor, ancient greek and Romans
recognised the essential dignity of all humans through natural law
- Development and influenced by natural law, state sovereignty, historic constitutional
documents and international agreements, various movements to recognise certain HR
➔ Natural law = philosophy that certain rights, moral values, and responsibilities are
inherent in human nature. Contributed to recognition as it promotes the idea that
 humans have certain fundamental freedoms that cannot be taken away even by a
king or queen
➔ The Magna Carta 1215 = recognised that the king had limited power over individuals.
Including principles that every citizen has a right to freedom, anyone accused of a
crime must be brought before the courts, there must be equality of all before the
laws
➔ The English common law (in conjunction with the Magna Carta 1215) = developed
principles protecting the rights of individuals such as everyone is entitled to the due
process of the law, and the writ of habeas corpus (which means that people cannot
be imprisoned without good reason)
➔ The declaration of rights 1689 (UK) = magna Carta expressed more clearly. The primary
purpose of this document was to establish the supremacy of parliament over the
king. It also established some individual rights, such as freedom of speech and
protection against cruel punishments
➔ The American declaration of independence 1776 = ‘all men are created
equal...endowed by their creator with certain unalienable rights, that among these
are life, liberty and the pursuit of happiness.’
➔ French declaration of the rights of man and the citizen 1789 = ‘all men are born and
remain free and equal in rights’

These two documents are important in the development of HR because they represent
systematic attempts to enshrine individual human rights and freedoms in the laws of
specific nations → emphasis the individual’s right to be free from the arbitrary power of
the state

Development factor Legislation

The abolition of slavery = The forced labour in - Emancipation Act 1833 → Britain
which a person is considered to be the legal abolished slavery in their colonies
property of another - 13th Amendment of US Constit →
- First HR issue to arouse wide outlawed slavery in 1865, however,
discrimination continued until the 1960s
international concern
through segregation
- Accepted practice in the ancient world →
- Art 8 of ICCPR → recognises freedom
transatlantic slave trade; trading of
from slavery
Africans by Europeans
- Abolitionist movement gained strength - Art 4 of UDHR → prohibits slavery
and publicity throughout the 19th - 2019 Modern Day Slavery Act → NSW +
Fed Gov
century
- The UN banned slavery under the UDHR
1948, followed by the Convention on the
Abolition of Slavery 1957, which made
penalties more enforceable and
widespread
 - Today slavery still exists in the form of
child labour, child soldiers, human
trafficking and prostitution → estimated 27
million people enslaved worldwide (stat
from Inter Labour Organisation)

Trade unionism and labour rights = - ICESCR 1966

association of employees that aims to protect
the rights of the workers. e.g. Pay, safe working
conditions and environment
- Formed after the industrial revolution in
the 18th century
- Employers have an owed responsibility
to their workers
- Minimum wages, the right to form and
join trade unions, OHS
Art 7 → right to the enjoyment of just and
favourable conditions of work
Art 8 → right to form and join trade unions
- International Labour Organisation (ILO)
1919
- Art 23 and 24 of UDHR

Universal suffrage = the right to vote - Art 1 of ICCPR and ICESCR

- Removes injustice and powerful political - ART 21 of UDHR
barriers to equality
- Democracy → Australia vs china
government systems
- In 1842, voters had restricted suffrage
and had to be male, white and wealthy
- Women suffrage societies formed in
1990
➔ SA 1894; the first state in Aus to
give women the vote
➔ 1902 women won the right to
vote - Aus as a whole
➔ Aboriginal people gained the
vote in 1962
➔ Women in Saudi Arabia still not
allowed to vote today
- Suffrage movements removed the
political distinction between the sexes
which helped recognise universal HR

Universal education = The right of all to a - Art 26 (1) of the UDHR → right to
basic education education
- In Aus: the Public Instruction Act 1880
- Before the 19th-century formal
(NSW)
education was rare; few people were
literate
 - The mid-1800s → growing demand for
educated people to meet the requirement
of the globalising world
- 1870 Aus colonies made primary
education compulsory → estimated 19%
of children in NSW were receiving any
education in 1810
- The UN recognises that “education is a
vital part in the alleviation of poverty,
the adoption of family planning and the
improvement of the status of women”
- Today around 130 million children 6-11
years old don’t have access to primary
education

Self-determination = the right of peoples to - Art 1 (2), 12, 55 of UN Charter

govern themselves and to choose their own - Art 1 of ICESCR + ICCPR
form of gov - Declaration of the rights of indigenous
peoples 2007) UN
- Collective right
➔ Took 20 years to complete
- Particularly applies to indigenous
➔ Non-binding - only four states
peoples and minority groups, to have have rejected it
some degree of control of their
traditional lands
- Important global notion during
imperialism
- Grew rapidly in the 1960s; Asia, Pacific,
Africa.e.g. East Timor
- Handing land to traditional owners has led
to negative instances due to barriers
between ethnic groups.e.g. Rwandan
Genocide → Hutu’s killing Tutsi’s,
European colonisation of Australia
- Issues:
➔ Fraught with issues due to SS
and rule of law
➔ Conflict occurs due to the desire
to achieve independence.e.g.
Kurds, Karen, South Sudan

Environmental rights = encompasses the right - Stockholm and rio declarations

to a clean, healthy and sustainable
environment
- Collective right = matter for common
concern for humankind
- Kyoto protocol 1998
➔ Designed to protect the
environment from greenhouse
gas emissions by compelling NS
to cut their emissions by agreed
 - Intergenerational equality = grants the amounts within certain
right of future generations to enjoy the timeframes
same quality of the earth as the present ➔ Hindered by SS
- 2015 UN Climate Change Summit Paris
- Main barrier = difficulty in getting global
➔ Long term goal to limit the
cooperation
global temp. Increase to only 1.5
- Essential to securing and promoting degrees above pre-industrial
other HR levels
- E.g. right to clean air, water etc ➔ Australia's stance on climate
change hasn’t changed since the
summit; ranked last of all the
OECD (organisation for
economic cooperation and
development) countries on
climate action

Peace rights = the right of people to have their - Art 2 (3) of the UN Charter = ‘nations settle
gov maintain peace and eliminate war their inter disputes by peaceful means…’
- Peace first recognised as an inter right - NNPT 1968 promotes peace
- Art 51 UN Charter
by the declaration on the right of peoples
to peace, a non-binding resolution of the
UN passed in 1984
- Charter of the UN creation in 1945
based off the primary intent to maintain
peace
- The creation of the ICC ensures a
degree of peace and mediation when
countries are in conflict

OUTLINE HOW HUMAN RIGHTS HAVE CHANGED AND DEVELOPED OVERTIME

INVESTIGATE THE EVOLVING RECOGNITION AND IMPORTANCE OF UNIVERSAL HUMAN RIGHTS

Learn about: Learn to:

● Formal statements of human rights ○ examine major human rights documents
➔ UDHR and explain their contribution to the
➔ ICCPR development of human rights
➔ ICESCR

Universal Declaration of Human Rights

 - WWI + WWII catalyst for the creation → marked the beginning of true inter recognition of HR and
other protections around the world → 48/58 states signed at the time of the creation
- In 1941, President Roosevelt called for the protection of four freedoms;
1. Freedom of speech
2. Freedom of conscience
3. Freedom from fear
4. Freedom from want
- UN charter’s purposes:
➔ Promotion of respect for HR (Art 1,55,56)
➔ to “reaffirm faith in fundamental human rights, in the dignity and worth of the
human person”
- 30 articles that set out a particular HR
- Soft law → doesn’t create legal obligations upon states
- UDHR impetus for more than 200 inter treaties, conventions, declarations, bill of right
- Part of inter customary law = concepts/actions that have developed over such a long period
of time that they are accepted globally

INTERNATIONAL BILL OF RIGHTS

Is made up of:

THE UDHR 1948

Given force by:
ICCPR 1966 ICESCR 1966

Western democracies wanted civil and political rights (ICCPR) which are paramount to a true
democracy, but communist countries wanted social and economic rights (ICESCR) to ensure the
nation came before the civilian
- The cold war was the impetus for these additional documents
- A total of 165 countries have agreed to be bound by the provisions in the ICCPR and ICESCR

International Covenant on Civil and Political Rights

- Art 2 and 3 = equality between men and women
- Art 6 = right to live
- Art 4 and 9 = right to freedom of movement, right to a fair trial, right to be presumed
innocent until proven guilty
- Special children protection
- Signatory states are monitored by the Human Rights Committee
- State sovereignty poses a barrier. e.g. USA played a large role in drafting the covenant, but
did not ratify it until 1992, adding their own reservations that significantly reduces the
effectiveness of the covenant, hindering HR to an extent
 - S41 to vote
- S80 fair trial

International Covenant on Economic, Social and Cultural Rights

- Labour rights. e.g. Working conditions, trade unions → stemmed from communist prioritising the
economy and the labour that contributes to it
- Underpins belief in large-scaled equality. e.g. Rights to adequate food, clothing, healthcare
➔ Leader of the communist party during the Cold War, Nikita Krushchev said, “In
Russia, all you have to do to get a house is to be born in the Soviet Union. You are
entitled to housing. In America, you don’t have a right to choose between sleeping in
a house or on the pavement.”
- The USA has never ratified this treaty
- Education, housing, health

EXAMINE MAJOR HUMAN RIGHTS DOCUMENTS AND EXPLAIN THEIR CONTRIBUTION TO THE
DEVELOPMENT OF HUMAN RIGHTS

PROMOTING AND ENFORCING HUMAN RIGHTS

Learn about: Learn to:

● In the international community: ○ Assess the role of state sovereignty in
➔ State Sovereignty promoting and enforcing human rights

State sovereignty
- Supreme lawmaking authority → the domestic affairs of a nation are under the control of that
nation
- SS means that Inter. Law cannot interfere with what happens within a state without that
state’s consent
- Before 18th C → SS lay with the King/Queen, they could do whatever they pleased within the NS
- Popular sovereignty developed gradually → people themselves were sovereign and could
delegate their power to a parliament and revoke that power if necessary. Such rights only applied
to citizens of nations willing to proclaim/protect these rights on behalf of their citizens, not all of
society. e.g. Slaves, POW
- National sovereignty → NS without declarations could treat their citizens or subjects as they
wished without interference

ASSESS THE ROLE OF STATE SOVEREIGNTY IN PROMOTING AND ENFORCING HR

State sovereignty plays a significant role in promoting and enforcing human rights. The protection
of human rights internationally undermines the idea of national sovereignty, as it means
 interfering with a nation’s domestic affairs which states resent as it compromises their power.
However, as global values and ethical standards change, the relationship between state
sovereignty and human rights similarly evolves in a positive light, as the responsibility of nations
to protect human rights within its borders becomes increasingly recognised. Scrutiny of this
protection is a legitimate international concern, as it can emphasis the need for law reform to
protect human rights. Some nation states do recognise that the international community should
interfere to stop HR violations if such breaches endanger world peace and security, as seen by
compliance to IGO standards to implement humanitarian aid, evident in NATO bombings of libya
in the 2011 Arab Spring

Learn about: Learn to:

● The roles of: ○ Evaluate the effectiveness of international
➔ The United Nations responses in promoting and enforcing
➔ IGO’s human rights
➔ Courts, tribunals and independent
statutory authorities
➔ NGO’s
➔ The media

The United Nations (UN)

- Est 1945
- Art 1 of the UN charter outlines the five core purposes of the UN;
1. HHFF
2. DJDJD
3. JDDJJD
4. DJDJJD
5. DJDJJDJD

Office of the High Commissioner for the HR (OHCHR)

- Offers its support and expertise to various HR monitoring bodies and systems within the UN
- Oversees the HR council, the Universal Periodic Review, the eight HR treaty bodies who
monitor the implementation of major HR treaties

The Human Rights Council

- Est 2006 as a subsidiary of the UNGA = 47 member states responsible for the promotion and
protection of HR globally
- Chief purpose is to examine situations in which HR violations are occurring and make
recommendations for action back to the UNGA
- Also requests UNSC to take action to stop HR violations.e.g. Sanctions, direct acts
- Aus HR commission

The Universal Periodic Review

 - Run by the HRC
- Review of the HR records of all 192 UN member states every four years
- Review based on the will of each member state; it is up to the representatives of each state
to declare what actions they have taken address HR violations and to meet obligations

UN Security Council
- Chief decision making arm of the UN, 15 member nations, 5P; France, UK, Russia, China, USA
with veto power over all decisions
- UN charter allows the UNSC to ‘take such action by air, sea or land forces as may be
necessary to maintain or restore Inter. Peace and security.’
- Humanitarian intervention (needed on a large scale when mass groups of people are affected)
has been used four times → yugoslavia 1991, Somalia 1993, Rwanda 1994, East Timor 1999
- UNSC can also intervene to stop defined mass atrocities.e.g. Genocide, war crimes by force,
using the inter R2P principles

IGOS
- Powerful instruments for protecting against HR abuses within member states
- Membership conditions of many IGOs include respect for HR and a good HR record
➔ To be a member in the EU or NATO: states must be democracies that uphold the role
of law, respect and uphold universal HR and adhere to the UN charter on the use of
force
➔ Members of cwlth of nations must abide by the political principle of democracy and
respect for HR
➔ ASEAN developed an ASEAN charter in 2008, agreeing on the promotion and
protection of HR. in 2009, ASEAN estab a HR body, a significant achievement as some
members are authoritarian governments with poor records on HR, such as Burma
and Vietnam. This body has no enforcement powers and sanctions for member
states, however is a positive step forward
- The ability of IGOs to sanction member states on their HR records varies

Courts - International Criminal Court (ICC)

- March 2010: 111 parties to the Rome Statute governing the ICC, meaning these states have
agreed to the statute’s provisions and jurisdiction of the ICC → USA is not signatory
- The permanent inter court hearing cases relating to the most serious of inter crimes and
gross HR abuses.e.g. Genocide, war crimes, crimes against humanity
- First permanent court allowing individuals to be tried for heinous HR crimes and
infringements
- Known as the ‘court of last resort’ → only hears cases if they are not being investigated or
prosecuted by a national judicial system, or if they are not genuine

Tribunals
 - Set up by the UNSC under the UN Charter → individuals could be prosecuted for crimes against
humanity in these tribunals
➔ Yugoslavia 1993: cases involving breaches of the GC and HR crimes committed
during the break up of the former Yugoslvia in 1991
➔ Inter criminal tribunal for Rwanda 1994: bases of genocide committed in Rwanda
1994
➔ European Court of HR: jurisdiction over HR issues in the EU. Some enforcement
powers, in that any EU member that doesn’t comply could face the sanction of being
expelled from the EU

Independent Statutory Authorities

- Eight HR treaty bodies, which are committees of independent experts that monitor compliance
with the chief Inter HR treaties by signatory states → created in accordance with the provisions of
the treaty they monitor, consider the reports made by the states, make recommendations
1. HR Committee (OCHR) = the centre for civil and political rights (CCPR) works to promote the
participation of NGO in the work of this committee
2. Committees on economic, social and cultural rights (cescr)
3. Commitee on the elimination of racial discrimination (CERD)
4. Committee against torture (CAT) → added optional protocol to the convent. Against torrture
(OPCAT), subcomitte on prevention of torture (SPT)
5. Committee on the rights of the child (CRC)

NGOs
- As concepts of HR have evolved, both internationally and within the Australian legal system,
and as interest in HR protection has grown among ordinary citizens, the establishment of
NGOs concerned with HR has increased
- Instrumental in establishment of the UN charter and inter bill of rights
- Many operate as observers with the UN and other specialised government agencies in the
upholding of HR around the world
- Amnesty international and HR watch

The media
- Raising awareness of HR abuses around the world and rallying public and government action
to end abuses
- Technological advancements means news is broadcasted instantly and internationally
- Increasing role of the media is positive and negative influence on the reporting of HR abuses
and subsequent actions

The effectiveness of Inter Responses in promoting and enforcing HR

Not all countries are party to HR treaties - UDHR is argued to have the force of
 customary law, so is somewhat binding
- A state may be obliged to protect HR
due to UN membership
Issue: individuals in these countries not party to
treaties aren’t protected by them

Lack of adequate enforcement mechanisms - UN enforcement mechanisms.e.g.

Investigations, don't apply to all HR
treaties, with some being optimal rather
than compulsory
- Even if a nation has agreed to a treaty, it
may not have agreed to the
enforcement mechanisms of the treaty
- Many states are slow to report to the
relevant committees, even when they
have agreed to do so
Example = Aus hasn’t agreed to enforcement
mechanisms under the CEDAW

Enforcement by consensus - Nations don’t always feel compelled by

these reasons to follow inter law
- Problematic as it relies on consensus,
reciprocity and nations legal
responsibility

Reliance on state reporting - States who don't wish to comply can

simply choose not to report on certain
situations
- Relies on each member state to
accurately report its own HR
infringements and the actions it takes
towards addressing them
Example = HR council and the universal periodic
review program

Lack of security action - Extremely wary to intervene on HR

abuses in nation states
- UNSC has only used the powers of
humanitarian intervention four times to
varying degrees
1. Yugoslavia 1991
2. Somalia 1993
3. Rwanda 1994
4. East Timor 1999
Case = Rwanda 1994: not sufficent intervention to
stop mass genocide, criticised for allowing known
ethnic cleansing to happen by non interference →
inadequate actions led to the development of R2P
War crime tribunals - Yugoslavia and rwanda represent a
willingness by the inter community to
create structures to enforce HR
- Effectiveness hampered by the fact that
they may help entrench the conflict
rather than end it
- Gross violations of HR have occured in
recent years.e.g. Afghanistan, and no
similar structures have been instituted
- ICC 2002 to improve HR enforcement →
court has not had any major impact

Lack of funding - UN high commissioner for refugees

(UNHCR) est 1951 to provide inter
protection for refugees
- However these UN specialist inter
organisations suffer from a chronic lack
of funding which hampers their ability
to be fully effective

Informal recognition of NGOs - NGOs can and do provide independent

info to the UN
- Reporting procedures of nations to UN
bodies have been criticised as they
don’t provide unbiased information
- A more formalised recognition of NGOs
in this area is needed for their impact to
be fully effect

The media - Used by NGOs to gain public awareness

- Effective because it can quickly mobilise
public action against HR abuses
- Public action can then call up the gov
and inter organisations to uphold HR
- Tendency to be broad and not deep in
coverage → public knows about the ‘what’
of the situation, and little about the ‘why’
- All consuming, so the general public can
quickly get ‘compassion fatigue’ from
being exposed to too many horrors via
the media
- News can present a HR ause, and once
the initial outcry has subsided, the story
may be ignored

Learn about: Learn to:

 In Australia - ○ Outline how human rights are
● The incorporation of human rights into incorporated into Australian domestic law
domestic law

Australia has the responsibility for ensuring HR are adhered to, promoted and enforced. HR are
protected in Australia through the following legal mechanisms; the constitution, common law,
statute law, non-interference, courts and tribunals, a bill of rights enacted in the ACT and VIC, and a
proposed Australian charter of rights. In conjunction with these legal measures, NGOs and the
media assist in the promotion and monitoring of the protection of HR in Australia, applying pressure
to the federal gov
- There is no one document that outlines all HR that correspond with inter recognised HR
- No bill of rights to ultimately protect = degree of vulnerability

Australia’s system
- Dualist system = just because a treaty/inter doc is ratified, it does not mean it is automatically
apart of Aus law → the gov must enact legislation, incorporating the inter HR doc into domestic
law
- Barrier to the compliance of HR → evident in Australia’s treatment of asylum seekers

The Australian Constitution

- Express rights = clearly and explicitly outlined in the constitution
➔ S 41: the right to vote
➔ S 51: protection of acquisition of property on unjust terms
➔ S 80: the right to trial by jury
➔ S 116: freedom of religion
➔ S 117: prohibition of discrimination on the basis of your state of residency
- Implied rights = not clearly outlined, and are rather suggested or inferred → very vague
➔ Freedom of speech
- The ability of the constitution to protect HR is very limited → ineffective mechanism of protecting
HR
- Aus constit guarantee of HR is quite limited → US constit first 10 amendments guarantee all
citizens rights to free speech, bear arms, free arm and infliction of cruel punishment

Case = Lange V ABC 1997 → the high court ruled that the constitutions contain an implied right to
freedom of political communication, a type of free speech

Learn about: Learn to:

● The roles of: ● evaluate the effectiveness of Australian
➔ The constitution, including division of responses in promoting and enforcing
 powers and separation of powers human rights
➔ Statute law
➔ Common law ● discuss the arguments for and against a
➔ Courts and tribunals Charter of Rights for Australia
➔ NGO’s
➔ the media
➔ A Charter of Rights (arguments for and
against)

The Division of Powers

- S51 = Fed gov has “exclusive powers” over Inter affairs: only the Aus Gov can enter into Inter
agreements, including HR agreements
➔ Gives Cwlth with the authority to include inter treaties in legislation
- S109 = Residual powers belonging to the state and territories, not clearly written in Constit
(all powers left over from S51)
➔ Limited ability of protecting HR due to division as states and territories can only act
to mirror Inter HR through their own legislation, but don’t have the power to ratify
HR agreements themselves or to enact enabling legislation
- Aus fed gov upholds HR standards set out in (obliged to give effect to the HR in these
documents):
➔ ICCPR, ICESCR, CROC, CEDAW, UDHR, CERD, CAT, CRPD

The Separation of Powers

- Divides the power of gov into three separate institutions; the legislature, executive and
judiciary
- Maintaining the independence and separation of each gov arm ensures basic civil and
political rights are protected, and that no one arm can hold too much power
- Protects abuse of power which could lead to HR abuses → allows judiciary to quash any
legislation deemed to be an obstruction to HR
- Criticism of any charter of rights in Aus is that it will override the separation of powers,
especially in relation to the independence of the judiciary

Common law
- Body of law composed by judgements made in court
- Evolving → independent from gov, ability to protect many HR
- E.g. right to presumption of innocent until guilty and right to fair trial protected by common
law
- Not fixed: can be removed by act of parliament = OVERRIDDEN BY STATUTE LAW
- Justice Brennan on International law, “was a legitimate and important influence on the
common law. Especially when inter law declared the existence of UHR”
Case = McInnes v Queen 1979 → found that there was no right to legal rep in Aus, despite the fact that
those with representation have a much greater chance of being acquitted
- Contracting this case, Dietrich v Queen 1992 decided that in a serious matter, a case could be
delayed indefinitely until an accused person acquired legal aid

Case = Mabo v QLD 1992 → est. for the first time that Aboriginal people have collective rights to traditional
land in Aus. The High Court granted ‘native title’, providing numerous HR

Statute law
- Parliament made law
- Many HR statute law were created in response to inter docs
➔ Racial Discrimination Act 1975 (Cwlth) = CERD
➔ Sex Discrimination Act 1984 (Cwlth) = CEDAW
➔ Disability Discrimination Act 1992 (Cwlth) = CRPD
- Rights laid out in statute law are not fixed → can be removed by a later act of Parliament
- The NSW Anti-Discrim Board and Fed Aus HR Com (AHRC) established by legislation to
examine cases of violation of HR
➔ Promotes public awareness about HR
➔ Independent statutory bodies that administers fed HR legislation
➔ Role of investigating and conciliating complaints about abuses of HR in legislation
under its jurisdiction
➔ Doesn’t have the power to make legally binding decisions, only recommendations
➔ Est under HR Comissions Act 1986 (Cwlth) to dealwith alleged violations of thje Anti
Discrim Acgt 1977 (NSW)
- ICCPR and ICESCR have merely been attached as schedules to the Australian Human Rights
Comission Act 1986 (Cwlth)

Domestic courts and tribunals

- NSW Admin Decisions Tribunal (ADT) → can hear complaints about discrim and make legally
binding decisions about the matter.e.g. Award of damages up to $40000
➔ Case = Abduirahan v Toll Pty Ld (2006)
- Both ACT and VIC courts can also hear and make decisions about HR abuse contained in
their legislative charter of rights

International Tribunals
- In areas where there is no domestic legal protection for rights in Aus, people whose rights
have been adversely affected can lodge a complaint with various Inter. Bodies

Case = Toonen V Aus (1994)

- Nicholas Toonen complained to the UNHRC about Tasmania’s criminal laws which made
homosexualtiy illegal
 - He claimed that the laws contravened Art 17 and 26 of the ICCPR because the laws
interfered with his right to privacy and non discrimination
➔ Art 17 = no one shall be subjected to arbitrary or unlawful interference with privacy
➔ Art 26 = all persons are equal before the law and art entitled without any
discrimination to the equal protection of the law
- Federal parliament s51 exclusive power; s109 conflict between state and fed affairs
- UNHRC: only can recommend to parliament, rendering promotion of HR effective, however
has limited enforcement due to SS
- Legal mechanisms were responsive in protecting the individuals rights
➔ Accessible: when justice is not achieved domestically, individuals have the ability to
access higher authority international bodies
➔ Responsive seen through the fed gov changing laws
- This case reflects Aus law reforming to reflect values and ethics
- The UNHRC agreed with Toonan, and the federal parliament responded by passing the
Human Rights (Sexual Conduct) Act 1994 (Cwlth), attempting to override Tasmania’s laws
- In 1997, Tasmania repealed its laws making homosexual acts illegal
- Embedding anti discrimination laws, ,mirroring international conventions ICCPR, therefore
displaying Aus compliance to inter obligations

Case = A V Aus (1997)

- Mr A arrived by boat from Cambodia in 1989 seeking refugee status in Aus
- He was detained for 4 years while his status as refugee was being determined
- He argued his rights to liberty and security of person were violated by the Australian Fed Gov
- The UNHRC agreed his rights were violated under Art 9 of the ICCPR, however, Aus rejected the
finding and argued the UNHRC was wrong → SS impeding

High courts
- Power to set precedents binding on other courts
- Can overturn legislation that conflicts with the Constit
- Critical in protecting HR because the judges can take into consideration Inter standards,
consequently applying these standards in the absence of legislation that properly enforces
inter standards of HR
- HCA most important HR protector, especially with the power of declaring legislation inconsistent
or invalid → effective protection

NGOs
- Investigate and report on HR issues → “naming and shaming” HR violations, shaping public
opinion, pressuring gov to make changes
- Amnesty, red cross, Aus HR centre, NSW council for civil liberties

The media
 - Works hand in hand with NGOs → publishes their findings
- No explicit right to freedom of speech in Aus; limitations to it.e.g. Racial vilification
- Right to freedom of political communication is an implicit right in the constit
➔ Case = Lange V ABC (1997)

A Charter of Rights
- Aus is the only western democracy that doesn’t have a bill of rights
- Since 2004, both ACT and VIC have incorporated a charter of rights into their legal systems
- Can be part of the country's laws by being entrenched or made legislative
- Cwlth has the power to pass such legislation, but has been unwilling to interfere with “state
matters”
- A key recommendation of the 2009 National HR Consultation Committee was to introduce a
federal HR act enshrining HR in Aus constit → 87.4% in favour → 2010 Aus Gov announced that
such legislation wouldn’t be introduced

Arguments for Arguments against

- Common law has not protected HR - HR are already adequately protected

adequately
➔ Case = McInnes v the Queen
- Common law is too slow to meet
contemporary needs→ technological
advancements such as surveillance
cameras
- would protect minority groups who are
not adequately protected at present,
such as Aboriginal people
- Would protect people from government
interference in basic human rights → at
present, governments can make laws that
infringe on these rights and people can do
little to challenge them
- Would adopt a major recommendation of
the National Human Rights Consultation
Committee released in October 2009 →
high community support of 87.4% in
favour
- Redressing the lack of clarity of HR
protection in Aus → implied rights of
Constit
- Centralising the sources of HR → rather
than constitutions, common law, statute
law, the high court of Australia
- Improves Aus international standing in
regards to HR
- Brings Aus into line with other
democracies similar (NZ, UK, USA)
through international agreements,
common and statute law
- Can only protect people within the limits of
the rights it lists → there is a danger that
people will have no rights, except for
those within the charter
- Means that the judiciary would take on
a political role because it would have to
decide whether laws infringed the
Charter of Rights
- Any entrenched charter of rights is
difficult to change and may become
irrelevant or inappropriate overtime
- A legislative charter of rights is too easy
to change and can be amended
according to the political policies of the
party in power
- Undermines parliamentary sovereignty
- Could illicit challenges similar to that of
the USA with gun laws → it isn’t easy
changing the Bill of rights
- The economic cost of creation of
charter
- Entrenched = sometimes it needs to be
amended due to changing social values
→ once it may have been necessary, but
not anymore
 - Helps to promote a stronger culture of
respect and appreciation for HR
- Entrenched = difficult to change, meaning
citizens are protected no matter who is in
Gov → no Gov can pass laws that
contradicts a right given by the charter
- Legislative = can be changed by the
legislature, allowing for updates to fit
society's values.

The effectiveness of Aus domestic responses in promoting and enforcing HR

- Generally good record on HR
- Prominent role in international promotion of rights
- Active participants in drafting of the UDHR, ICCPR, ICESCR
- However, limited effectiveness of legal measures in addressing HR issues
➔ Lack of charter of rights and failure to ratify HR treaties
➔ Treatment of aboriginal and torres strait islander peoples; face discrimination and
struggle for self determination, land rights and economic, social and cultural equality
➔ Mandatory detention of asylum seekers

Role of the AHRC

- Criticised because it doesn’t have sufficient power/resources to adequately protect HR
- Have made recommendations to gov about HR issues but has frequently been ignored

Unwillingness by govs to adopt laws and practices to address HR challenges in Aus

- Anti terrorism laws
➔ Anti Terrorism Act 2005 = control orders, restricting the movements of people for up
to 12 months, preventative detention, where suspects can be detained in prison for
48 hours without charge
➔ Imposed on people who haven’t been charged with any offence, and who haven’t
been involved in any trial
➔ Criticised for violating ICCPR which embodies the principle that people’s liberty
should only be restricted if there is a criminal charge against them
➔ Case = Dr Mohamed Hanef: detained for 12 days in 2007. He was released without
charge, and a media and public outcry was provoked leading to an inquiry into the
laws which found he was completely innocent

NGOS and media

- Success of these groups depends on how much pressure they can assert and how much
publicity they receive
- Often gives groups wide publicity and knowledge about HR is generally widespread
 - Due to SS, it is up to Gov to change laws regarding HR concerns, which they may not do
despite widespread awareness and pressure from both within and outside of Aus

Learn about: Learn to:

● A contemporary issue which illustrates ○ investigate a contemporary human rights
the promotion and/or enforcement of issue and evaluate the effectiveness of
human rights legal and non-legal responses to the issue
➔ Asylum seekers

Human rights relevant

- Not to be subjected to arbitary detention, torture, or cruel, inhuman or degrading treatment
or punishment
- Not to be sent back to a country where their life or freedom would be threatened
(Non-refoulement)
- To work, education and physical and mental health care
- To challenge in court the legality of their detention

Child asylum and refugee special protection

- The best interests of the child must be a primary consideration at all times
- They are entitled to humanitarian assistance
- Detention of a child must be a last resort and for the shortest possible time
- These considerations links to croc

Human rights problems faced by Asylum seekers and refugees in Aus

- Over the past 15 years, Aus has breached HR of many asylum seekers and refugees:
1. Hundreds of children were held in immigration detention centres for long periods of
time
➔ Severely affected mental health of child, violated a range of their fundamental HR
including the right to be detained at last resort, education, health care
➔ Case = cambodian boy detained for 5.5 years
2. Adults subjected to prolonged and indefinite detention under Aus mandatory laws
3. Some transferred offshore (e.g. Nauru, PNG, Christmas Island), where they didn’t
have access to Aus refugee status determination process
4. Some had temp protection visas that left some refugees, including unaccompanied
children, separated from their family for years, exposed to severe traumatic
experiences

Current concerns
- Law requiring mandatory detention is still in place
- Immigration detainees are still unable to challenge their detention in court
 - Some children are still held in closed immigration detention facilities mainland and on
christmas island
- No law governing the treatment of people in immigration detention
- Insufficent legal guarantees to prevent the return of asylum seekers who fail to meet the
definition of refugee, but still face threats of torture anbd death in thier original country
- Some asylum seekers are given bridging visas allowing them to live in the community, but
without the right to work or receive medicare, they depend heavily on charity

Limitations of existing HR protections

- Very limited HR protections for asylum seekers and refugees
- Aus tribunals and courts don’t have the power to consider whether an individual's detention is
arbitrary, unreasonable or unnecessary, and they cannot order the gov to release a person from
immigration detention → gov doesn’t have to comply with their recommendations
- What they can do:
➔ Apply to some tribunals/courts for review of certain via related decisions
➔ Complain to the cwlth ombudsmen, for eg. about the depart of immigration decision
making process
➔ Complain to the AHRC about their treatment

Australian Human Rights Act → Advantages

- Would protect and promote the rights of asylum seekers and refugees by requiring the gov
to carefully consider how decisions impact on their HR
- Would provide a range of enforceable remedies if HR breaches occur
- Be a powerful tool for fostering a stronger HR culture in Aus by promoting greater
understanding and respect among all people in Aus

Recommendations to promote HR
- Enhance protection of HR in the constit
- Repeal mandatory detention laws
- Legislating minimum standards for conditions and treatment for those in detention
- Legislating to better protect people at risk of torture/death if returned to country
- Ensuring visa regulations and conditions permit access to health care, education, housing,
work
- Ensuring detention staff members and service providers receive adequate HR training

Effectiveness of legal and non-legal responses

Legal measures

Measure Effective promotion/enforcement Ineffective promotion/enforcement

SS compliance/non compliance
 UN Convention of the status of
refugees 1951 → 144/192 signed,
now customary law
UNHCR post WW2

IGOs

Court/Tribunals 2004 High Court “indefinite

detention is unlawful”

NSW admin decisions tribunal

(ADT)

Statutory No power
Authorities.e.g
AHRC

Aus response Humanitarian visa Border security legislation amendment act

Refugee and special
humanitarian program, 32/71
countries accepting
Unauthorised processing
(values and ethics of UDHR) ; violates croc
and arbitrary detention
Border Forces Act 2015 = speaking out
LAW REFORM

ICESCR and ICCPR

Legal measures

Measure Effective promotion/enforcement Ineffective promotion/enforcement

Media Raises awareness Lack of influence

Supports NGOs

NGO’s Human rights watch, oxfam, red

cross, refugee council of Aus

Monitor compliance of NS

Diplomacy PNG and Aus → closed manus

island in 2019

MABO CASE STUDY

Mabo v Qld 1992

- Appealed to the H.C, as QLD gov wanted to mine on the Murray Islands, the traditional land of
Mabo and his meriam people → 7 year case
- Statute law overturned → Native Title Act 1992
 - Recognises 60,000 years of occupation, contrary to British Law → ‘terra nullius’ did not
acknowledge the basic humanity of Aboriginal people, justifying the British belief that the land
was “uninhabited”
- Recognises a new category of territory, that land can be settled and inhabited
- Quote about the H.C ruling by The Conversation 2017 = “Our institutions and society can
accommodate enormous shifts”, law reform = responsive
- To gain native title today, there needs to be proof of continuous connection with land, which
can pose a difficulty to achieving native title

Key impacts
- Reconciliation
- Vic premier perspective → shift of values
- Recognition of original existence of Aboriginal people
- Justice has been provided, yet still develops
- Land rights and self determination
- Closing the gap

Wik Case (H.C 1996)

- New statute law of the Mabo case played a prevalent role in this case
- Found that pastoral land can cohabit with Native Title land, a depiction of rights for both
parties
- Led to the 1998 Native Title Amendment → 10 pt plan, that somewhat diluted the purpose of
Native Title, accommodating pastoral leases
- 2009 Native Title Amendment → increased government powers and further diluted the power of
the native title tribunal, seen as a contradiction of the mabo case
- Native title tribunal essentially lost all their power due to this amendment

Timber Creek (H.C 2019)

- $3 million compensation
- Recognised for the first time that Aboriginal people could be compensated for their loss =
has set a precedent for future cases
- The right to self determination is complementary to the journey of achieving native title for
Aboriginal people, reflecting the changing values throughout Australian society

Skills for question

- Criteria to evaluate → REARHAMP
- Themes and challenges → compliance, ethics/values, law reform
- Related rights → self determination, just terms for land acquisition s51
- Promoting? Enforcing?
Legal and non legal mechanisms
 TOONEN CASE STUDY

THEMES AND CHALLENGES

Sets the “tone” within writings

1. THE CHANGING UNDERSTANDING OF THE RELATIONSHIP BETWEEN STATE SOVEREIGNTY

AND HUMAN RIGHTS

- Increasingly recognised that nations do have a responsibility to protect HR within their own
borders
- The scrutiny of this protection is a legitimate international concern
- While resenting interference in their own domestic HR protection, N.S recognise that the
inter community to interfere to stop HR violations if such violations endanger world peace
and security
- International protection of HR undermines the idea of SS as it means interference with a
nation's domestic affairs
- SS can help protect HR of people in a state where sovereignty rests with the people
(democracy)
- Also poses a hindrance as due to SS, a gov doesn’t need to heed the wishes of the people,
therefore displaying how HR may not be protected

EXPLAIN “ “
Define SS and HR
Changing ethical standards and values → reflection of society
1945 - End of WWII → UN Charter = law reform
Rwanda 1994 genocide → R2P → Tribunal → ICC
Rohingi → Myanmar → UN “textbook genocide”
International law doesn’t work with SS

2. ISSUES OF COMPLIANCE AND NON-COMPLIANCE IN RELATION TO HR

Reasons for NON COMPLIANCE Reasons for COMPLIANCE

- HR seen as Western Concept, so may
not apply to non western nations
- Individual HR takes second priority after
greater issues of poverty in developing
nations
- HR violations may be viewed as
acceptable → Treatment of Asylum
seekers in Aus
- HR protection deemed less important as
- Pressure from UN and international
community to address HR issues
- HR = customary international law → inter
expectation to abide
- HR protection requirement for IGO
membership → EU, NATO
- Pressure from media
- Population of the state insist
governments to address HR violations
 other state objectives → Anti Terrorist - Existence of the ICC and war crime
measures tribunals are a deterrent
- Protection of rights of a group/individual
may place the rights of other
groups/individuals in danger → Mabo
decision and property owner rights
- Too expensive to protect
- May not be in a state’s self interest to
recognise and protect HR
- States may lack the will to stop
individual from breaking HR
- Enforcement mechanisms are weak

EXAMINE “ “

3. THE DEVELOPMENT OF HR AS A REFLECTION OF CHANGING VALUES AND ETHICS

Collective rights
- Seen as an attempt to ‘water down’ the importance of individual rights
HR as a western concept
- Argued that HR reflects a western view and doesn’t take into account the different cultural
perspectives of Eastern countries
- The practical observervance of HR needs to be made in the political and cultural context of
each state
- However, west and east countries have contributed to the development of Inter protection
of HR
National security
- The ‘war on terror’ has led to the justification of practices that clearly infringe HR
➔ Control order and preventative detention laws in Aus
- Some argue that such measures are necessary to protect national security, while others
argue that the fear of terrorism shouldn’t lead Western democracies to strike down
freedoms and rights
UDHR 1948
- HR shift to becoming an important part of inter law
- HR widely publicised and condemned
- NGOs role in promoting knowledge of and compliance with HR standards
HR are indivisible
- Questioned by some nations who argue that economic and social rights are more important
than civil and political rights
➔ Therefore some nations prioritize economic development rather than civil benefit
 EXPLAIN “ “

4. THE ROLE OF LAW REFORM IN PROTECTING HR

Internationally
- Inter law reform commission can enact reform by reviewing and reporting on legal issues
such as the effectiveness of HR law
- ICC has large role in enacting individual HR reform
➔ Rwanda and Yugoslavia ad hoc recognition of rape as a war crime was bought about
- Separate inter courts and tribunals can bring about state reform
➔ UNHRC in the Toonen V Aus 1994 case

Domestically
- Reform can be achieved through legislation or by adaptation of the common law in courts
- Parliament is primary agency of law reform
- Courts can apply precedent to cases, making decisions to fit changing circumstances → Mabo
Decision → The Conversation 2017, “Our institutions and society can accommodate for
enormous shifts in justice”
- Areas of HR law requiring reform =
➔ Aus incorporation of a charter of rights
➔ Aus response to asylum seekers
➔ International definition of refugee

Pressure to reform mechanisms

- Inter law reform commission
- State law reform commissions
- Reports and recommendations from Aus HR commission
- Inter courts and tribunals
- Non legal mechanisms

EXPLAIN “ “

5. THE EFFECTIVENESS OF LEGAL AND NON LEGAL MECHANISMS