RIGHTS & RESPONSIBILITIES_1

RIGHTS & RESPONSIBILITIES_1

1. Balancing Individual & Community

   • Law changes to reflect changing values in society
   • Australian legal system- protects rights of individuals while requiring them to fulfill responsibilities as citzens

2. Representative Democracy

   • Democratic Rights- 'government by the people for the people' e.g. right to vote, right to leisure, right to peaceful protest

3. Historical Origin of Legal Rights

   • Magna Carta 1215 ('Great Charter')- imposed on King John limit power (rights of the people in England)
   • Natural rights= human rights today

4. Internationally Recognised Human Rights

   • Universal Declaration of Human Rights 1945 (international benchmark signed by Australia
   • International Treaties & Conventions (only enforceable once ratified by nation)

5. Seperation of Powers

   • Executive- implement law e.g. PM, Cabinet & GG Legislative- make laws e.g. Parliaments Judicial- interpret law e.g. Court (judges)
   • Powers are separated to avoid injustice & power imbalance (corruption)

6. Sources of Australia's Legal Rights

   • Australian's have their rights contained in a variety of sources: 1. The Australian Constituion 2. Legislation (federal & state) 3. Common Law 4.British Westminister System 
   • 1. Constituition
     • Based on US Model- didn't include first 10 Ammendments (keep soveriegnty of states
     • 5 Expressed Rights
       • 5 Expressed Rights: 1. Right to trial by jury- s116 2. Right to compensation when property is possessed by government- s52xxxi 3. Right to be free from interstate trade & commerce-s92 4. Freedom of Religion- s116 5.Right to not b discriminated by states on the grounds of residency- s117
     • Does not guarrentee all basic freedoms e.g. freedom of movement, arbitrary arrest/ detention, peaceful protest
   • 2. Legislation (Federal & State)
     • Electororal Act 1918 (Cth)
       • Right to vote & be elected in parliament
     • Statutory Bodies
       • HREOC
         • Human Rights & Equal Opportunity Commission Act 1986 (Cth) - power to investigate, conciliate + prosecute harassment, bullying + discrimination in public life 
       • Anti- Discrimination Legislation
         • Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Disability Discrimination Act 1992 (Cth)
     • Queensland Anti- Discrimination Commission
       • Anti Discrimination Act 1991 (Qld) Authority to deal with complaints of unfair discrimination + sexual harassment
   • 3. Common Law
     • Implied Rights
       • High court determines implied rights in the Constitution e.g. freedom to communicate on political matters (representative democracy)
   • 4. Democratic Traditions & Conventions of the Westminister System
     • Representative Democracy
       • Inherited British Westminister system of representative democracy - Responsible Government Convention e.g. Kerr vs. Whitlam

7. Human Rights Lobby Groups

   • Represents + speaks on behalf of those whose rights have been violated Pressure governments to make changes to legislation to greater protect individuals human rights
   • Queensland Council of Civil Liberties (1961)
     • Protect civil liberties of Queenslanders who wish to take part in peaceful street marches

8. Federal Bill of Rights

   • Main Purpose
     • To set out clearly the  basic guarantees of necessary to protect society against an arbitrary exercise of power by the government
   • International Bill of Rights
     • English Bill of Rights 1688- reduce political ambitions of King (force a religious policy on the people of England) US Bill of Rights 1791- guaranteed rights of citizens wouldn't be violate under new government 
   • Definition
     • Is a statement of certain rights citizens and / or residents of a representative democracy have under the laws of that nation 
   • Victorian Charter of Rights & Responsibities
     • Charter of Human Rights & Responsibilities Act 2008
     • 4 Basic Priniciples
       • 1. Freedom 2. Respect 3. Equality 4. Diginity
     • Specific Responsibilities Imposed on Powers
       • Government Departments & Public Bodies
         • - Must observe rights when creating laws, setting policies + providing services (e.g. police) - Act in a way consistent with right in charter
       • Parliament
         • - All proposed laws checked against a charter- Statement of Compatibility  - If not consistent must give reason in an Act 'can be demonstrably justified in a free & democratic society based on human dignity, equality + freedom taking into account all relevant factors'
       • Courts
         • - Must consider human rights when interpreting all legislation - Supreme court can issue an Declaration of Incompatibility (but cannot declare legislation invalid) - Individuals cases of breaches can't be heard in court but can have say if inquiry is being held
     • Dealing with Complaints
       • Health Services Commission & Victorian Equal Opportunity & Human Rights Commission must consider human rights in Charter when dealing with complaints They are responsible for: - educating people about rights - providing independent statements about the government  Victorian ombudsman can investigate complaints about Victorian Government
     • Rights & Responsibities Included in Charter
       • * Freedom of association- freely associate with others * Rights in criminal proceedings- presumed innocent until proven guilty * Equal recognition before the law- every person is entitled to protection against discrimination * Human treatment when deprived of liberty- person detained with charge to be kept separate from those convicted
   • Areas Where Rights are Currently Not Protected
     • Viscious Lawless Association Disestablishment Act 2013 (QLD)
       • s60A- offence for participants to be in public areas s60B- cannot be within proximity of a restricted area i.e. clubhouse s60C- all letters, phone calls + visits to people in prison are monitored 
     • Anti- Terrorism Act 2005 (Cth)
       • - Suspected terrorists detained for up to 48hrs by police (federal) + up to 14 days (state) - ASIO- up to 7days + can't say anything about detention or questioning for up to 2yrs
     • Social Security Act 1991 (Cth)
       • - person can receive up to 3 penalties ($3,500) in 2 yrs for not answering a letter of attending a meeting  - Independent Review 2002 said laws were too harsh and penalties too easy to get 
   • Enacting Through Legislation/ Constitutional Ammendment
     • Federal Statute
       • For: - Maintain parliamentary sovereignty  - Ensure basic political rights maintained (representative democracy) -  Further confirms the government is legally responsible for protecting rights of society Against: - Would cause further unbalance of state/ federal powers - Political party making changes - Prolong the process of passing future Acts 
     • Constitutional Amendment
       • For: - Source is already established - Not influenced by short term political gains - Involves consent of community (referendum) Against: - Hard for court to make decisions (social views or majority opinion) - Restrict power of parliament - Increase litigation + flood gate cases - Will make some laws invalid 
   • Key Stakeholders
     • Julian Burnside (QC) FOR
       • - Australians assisted in creation of UN Declaration - Should be protected by the 'rule of law' - Right on recognised if enforced by the law (otherwise just a hope) - Implementation would lead to a federal enquiry of all legislation
     • Law & Justice Foundation NSW FOR
       • - Not tradition to make a Constitutional Amendment  - "If citizens have basic human rights in their hearts, should be reflected in the laws enacted by parliaments"
     • Justice Ian Callahan AGAINST
       • - Practical issued for High Court (more inclined to take those cases) - would increase litigation 
     • Tim Wilson (Human Rights Comissioner) AGAINST
       • - Codes of conduct & social laws more effective - better to strengthen non-legislative elements 'less legislation more social change'
   • Evaluation
     • FOR
       • FOR: - Recognise + protect universal rights (ratify international conventions + bring inline with other western countries - Enhance democracy (protect rights of all citizens, reduce defects e.g. not considering human rights when enacting legislation + adequately protect fundamental rights - Put rights above politics & arbitrary government action (improve policy + decision making and ensure parliament cannot infringe rights of people for own purposes) 
     • AGAINST
       • Against: - Rights are already well enough protected in Australia ( sources, cases e.g. Mabo + better to continue to improve common law + statute rather than make new changes) - Listed rights don't make a practical difference to their protection (Russion- Stalin killed 20 soviets + specific laws less effective than protection offered by courts through common law) - Political system best protection of rights- can vote out party if abusing rights + bill of rights would be undemocratic - Impact on sensitive social + regional issues e.g. racial problems that already occur may increase with legal change