Human Rights And Bill Of Rights - Public Law

Human Rights and Bill of Rights

Page 1187-1192

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.

Page 1404-1416

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.

• Amendment 5

  • No person shall be held to answer for a capital, or other infamous crime, unless on presentment or indictment of a Grand jury....no double jeopardy...private property cannot be taken without due compensation.

• Amendment 6

  • In criminal proceedings the defendant should have a speedy and public trial and an impartial jury, to be confronted with witnesses and to have a lawyer.

• Amendment 7

  • In cases that exceed $20, the right of trial by jury shall be reserved.

• Amendment 8

  • Excessive bail shall not be required, nor excessive fines or cruel and unusual punishment.

• Amendment 9

  • The enumeration in the Constitution of certain rights shall not be construed to deny people rights.

• Amendment 10

  • The powers not delegated in the US by the Constituted or prohibited by the states are reserved for the states.

  • Any federal legislation infringing on the Bill of Rights will be struck down by the courts. The 14^th Amendment does this for the states.

• Amendment 14 (added in 1868 after the American Civil War to protect against state actions)

  • Section 1: A state cannot enforce any law against the privileges or immunities of a US citizen. They cannot deprive people of life, liberty or property without due process of law or deny equal protection by the law.

  • There is the privileges and immunities clause, the due process clause and the equal protection clause in the second sentence.

  • The word liberty in the due process clause is not defined. It has been construed to mean not only procedural fairness in judicial and executive action but appropriate weighting in legislative action.

  • The Amendment is used as a source of implied guarantees. In Lawrence v Texas (2003) it was held that a criminal conviction for consensual homosexual sex in their home infringed “liberty”. Bowers v Hardwick (1986) allowed homosexuals to make a choice about intimate conduct.

  • Planned Parenthood of South-eastern Pennsylvania v Casey (1992) showed that a woman has liberty in choosing physician assisted abortion. Another controversial case was Washington v Glucksberg (1997) where it was found that a terminally ill patient has the liberty to have euthanasia. This focuses on personal rights.

• Before the Bill of Rights the courts focussed more on economic rights about property. For example, in Scott v Sandford (1857), slaves were the property of their masters. In Plessy v Ferguson (1896), Southern separation laws were upheld. This has changed since the 1930s. Amendment 1 and 14 focus on personal rights and this is what the court has focussed on.

• Over 60 years liberty in the 5^th and 14^th Amendments have come to mean a protection of economic rights like the freedom of contract.

• An extreme example was Lochner v New York (1905). It invalidated a New York law that said people could not work in bakeries for over 60 hours. It was argued that it was the right of the individual to choose how long they worked. Adkins v Children’s Hospital (1923) invalidated a law for minimum wages for women.

• In 1933 there were 9 judges when Roosevelt was president. 4 of them always were in favour of controversial decisions and 3 always dissented and the others had a swinging vote. They tried to invalidate the New Deal decision of Roosevelt.

  • In Railroad Retirement Board v Alton Railroad Co (1935) they held 5:4 that the Railroad Retirement Act 1934 that gave a pension to retired railway workers was against the due process of the 5^th Amendment.

  • Roosevelt in 1937 announced a plan to pack the Supreme Court by increasing the bench from 9 to 15 judges. It was not passed by the Senate but the threat...