Human Rights And Bill Of Rights Notes

Human Rights and Bill of Rights

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Human Rights:

• Perceptions of human rights are affected by social, economic and cultural backgrounds.

• Brennan J in Gerhardy v Brown said that an attempt to define human rights and fundamental freedoms exhaustively is bound to fail because of all the different notions of rights.

• Yet certain rights are seen as universal.

Louis Henkin, The Age of Rights (1990):

• Human rights are not some abstract good. They are defined particular claims listed in international instruments like the Universal Declaration of Human Rights. They are essential for well being, dignity and fulfilment and to reflect justice, fairness and decency.

• They include liberties- freedom from (e.g. torture) and freedom to (e.g. speak) and the rights to food, housing and basic needs.

• To call them human implies all human beings have them. To call them rights implies that they are claims as of right. When society recognises that a person has a right, it affirms and legitimates entitlement to that right.

• Society has an obligation to satisfy human rights claims. If people do not receive those rights, they are entitled to be compensated. The rights are fundamental.

• Human rights are not absolute and can be abridged. Yet there are certain strict limitations and the situation must require that the rights only be derogated to the extent strictly required by the exigencies of the situation. They must not invade right to life, involve torture, inhuman punishment, slavery or servitude, denial of rights under law or violate freedom of thought, conscience or religion.

• Rights are claims on society and not against society. A good society is where rights flourish.

Universal Declaration of Human Rights 1948

• It was adopted after WWII along with the creation the UN and general assembly. It sets out a list of basic rights.

• It has an influence that far exceeds its legal effect. It forms customary international law and cannot be enforced in Australian courts. Yet it is available through the world in 300 languages and is a rallying point for people who have been denied universal rights.

• Its rights include:

  • A right to life, liberty and security.

  • No one shall be held in slavery.

  • No one shall be subjected to cruel or inhuman or degrading treatment or punishment.

  • Freedom of peaceful assembly.

  • The right to marry as long as there is individual consent.

  • The right to freedom of thought, conscience and religion.

  • Freedom of opinion.

  • Compulsory elementary education that promotes tolerance.

• Covenants were adopted in 1966 and ratified in 1976 to bolster the Universal Declaration. They differ on the obligations they place on states.

  1. The International Covenant on Civil and Political Rights:

  • Recognises rights like freedom of expression and equal protection of the law. It prevents arbitrary action in the administration of the law. It says:

  • Where a person has rights violated, the state has agreed to have an effective remedy and this remedy should be determined by a competent judicial, administrative of legislative authority.

2. International Covenant on Economic, Social and Cultural Rights:

• It provides that the State will recognise the right of everyone to social security and adequate standards of living.

• It allows people to own property, work in fair conditions and have adequate education and standards of living.

• It is a weaker obligation because as Henkin argues ‘resource claims’ are not equal between states and this changes the degree of legal enforcement.

• Australia has ratifies both Covenants but they are not enforceable under Australian law unless they are incorporated into legislation. This has been done through the Racial Discrimination Act 1975 and Sex Discrimination Act 1984. There is the Human Rights Act 2004 (ACT) that incorporates international Covenant rights.

• In 1991, Australia agreed to the optional Protocol to the International Covenant on Civil and Political Rights. This means a person can submit a complaint to the Human Rights Committee and they will put moral and political pressure on the federal parliament to bring domestic law in line with the Covenant. The Committee found the Tasmanian Criminal Code Act 1924 (which made gay sex a crime) inconsistent with privacy rights but the government did not change it.

• Henkin understands human rights as importing entitlement in a moral order under a morel law and also a demand that this moral entitlement be translated as a legal entitlement.

• Wesley Hohfeld argued that privilege or liberty is less than a human right. Unlike a right there is no enforceable duty to obstruct that activity.

• An immunity in the Constitution, Henkin argues is a direct limit on government power.

• In Lange v Australian Broadcasting Corporation (1997) it was found that s.7 and s.24 of the Constitution are an implied right of freedom of political communication. They do not confer personal rights on individuals. They curtail executive power. They are not positive rights.

• S.117 in the Constitution prevents discrimination between states. This is seen as an “immunity” on individual rights. Yet it is not a right. You can declare a law is invalid if it goes against s.117 but you are not entitled to further relief such as damages for the injury caused by the breach.

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A Bill of Rights?

• Should Australia have a Bill of Rights?

• The Bill of Rights in The US Constitution is the classic example of express provision for judicially enforceable limitations on the powers of government. It was adopted in 1789 with the Bill of Rights added as the first 10 amendments in 1971.

The Constitution of the United States of America:

• Amendment 1

  • No laws shall be made respecting religion or prohibit freedom of speech.

• Amendment 2

  • Right of the people to bear arms.

• Amendment 3

  • No soldier shall in the time of peace quarter in any house.

• Amendment 4

  • People have the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.

  ...

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