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Human Rights Notes

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3. Human Rights What are Human Rights?

1 Problem with human rights

* Human rights may be viewed differently depending on social, economic, cultural and various factors. Context is important. It is difficult to create an exhaustive list of human rights, bearing in mind the various religious, cultural and political system because they will perceive some if not many difference in rights and freedoms of individuals. Elements of human rights (Henkins) Human rights are

Human rights (are not)

* Rights of individuals in society are universal.They belong to everyone and which everyone is entitled to regardless of age, sex, social class, national origin, ethnic or tribal affiliations.

* Benefits deemed essential for individual well being, dignity and fulfilment, they are fundamental.

* An entitlement in a moral order under moral laws, to be translated into and confirmed as legal entitlement
remedy must be given for wrong.

* Claims upon society and not against society, i.e., not against the interest of the society.
Although there may be conflict between satisfying individual's rights and society's rights, and human rights may be sacrificed if countervailing societal interests are important enough, in particular circumstances, for limited times and purposes, to the extent strictly necessary...
In the longer, deeper view, the society is better if the individual rights are respected.

* Are not some abstract good or aspiration, it is listed international instruments, e.g., the Universal Declaration of Human Rights.

* Need not be earned or deserved.

* Do not differ with geography or history.

* Cannot be transferred, forfeited or waived; cannot be lost by failure to assert them.

* Are not absolute and may be abridged in some circumstances.
The idea of rights accepts that some limitation on rights are permissible but the limitations are themselves strictly limited.
Derogation are permitted only in time of a public emergency that threatens the life of the nation, not as a response to fears for other values, or for the security of a particular regime.
However, such necessary derogations must not involve invidious inequalities, and may not derogate from basic rights, for example, they must not invade the right to life, etc.

Positive and negative human rights

* Immunities (negative) - limitations on what the government might do to the individual (civil & political rights)

* Resource claims (positive) - claims to what society is deemed required to do for the individual (economic, social cultural rights).
Hekin see human rights are not merely entitlements in a moral under moral law, but also a demand that this moral entitlement be translated into and confirmed as a legal entitlement in the legal order. Are human rights universal?

* Human rights transcends borders of geography and culture but is often depicted as a western concept that is to some extent objected by Asian countries, particularly China who believes the Universal Declaration of Human Rights do not conform to a communitarian society - i.e. the Confucian ideals of family and community and communism).

1 Ibid, 1150.

1 3. Human Rights Rights Protection in Australia


Express Rights in the Constitution

* It rarely gives any positive rights, instead it limits legislative and executive power
*> s 80 -- trial by jury
*> s 116 -- freedom of religion
*> s 117 -- an exception to this general rule;
It deals with discrimination against people from other States, conferring a unique kind of individual immunity. s 92
-- free trade
*> s 41 -- right to vote Implied Rights in the Constitution
*> ss 7 and 24 of the Constitution give rise to implied freedom of political communication but does not confer personal rights on individual. Remedy for breach of right sourced from the Constitution

* Remedy -- declaration of invalidity of the laws which infringes the rights.

* Cannot claim any positive rights except for the claims under s 117.
Under s 117, individuals cannot declare a law is invalid, instead, can only claim that the provision is inapplicable to him or her. Effect
-cannot sue for damages for breach of Constitutional rights since no tortious damage has been

suffered.Therefore, it is simply the law is struck down.


* Australia has an ad hoc and incomplete system of integration of international human rights standards in some of its legislations
- Human rights and equal opportunity commission act
- Sex discrimination act
- Trade practices act
- Racial discrimination act Human rights and Equal opportunity Commission Act formed a body of conciliating complaint by individuals,

intervene in cases of significance and produce reports on rights. However they are not able to determine complains because they are not part of the judicial system.They are only able to inquire, report and intervene in court.

* Anti discrimination laws (racial discrimination Act and Sex discrimination act) apply external affair powers to create legislation power not given to government under constitution.

* There is no national law or Bill of Rights that protects a range of basic human rights in a systematic way.

Magna Carter (page 55)

* The Magna Carter 1215 played a symbolic role in enshrining equality and justice by limiting the arbitrary exercise of monarchical power when it was first ratified by King John and then reaffirmed by the monarchs who succeeded him.

* 3 important reflective principles a. Every free person has an inherent individual right to his life, liberty, property and citizenship b. His individual rights must always yield to necessities of the general welfare at the will of the state c. The law of the land is only mode by which state can so declare its will

* The group that drew it up was not solely composed of the nobility and the clergy, but also included the merchants, townsmen, inhabitants of the forests and freemen generally. (G.Walker p54)10

* Magna carter is of symbolic interest as it does the subservience of the king to ideas of law, and also setting up rudimentary enforcement machinery against the king. (J Alder p55)11

* Rule of Law - individual rights represented and subjects monarch to the law.

Universal Declaration of Human Rights &
International Law

* The agreements are not self executing so an Act needs to be passed to make it enforceable at Australian courts although this has not occurred

* Difficult to bring action based on these covenants
*> International Covenant on Civil and Political Rights (ICCPR) recognises rights such as "freedom of expression" (Art 19) and "equal protection of the law" (Art 26)
*> International Covenant on Economic, Social and Cultural Rights (ICESCR) provides that the State will "recognise the right of everyone to social security" (Art 9) and "to an adequate standard of living" (Art 11).

* There is however a recourse with ICCPR because appeals can be made to UN Human Rights Committee and if a right has been breached, the respective nation will be informed in writing. No legal / physical action is taken but there is great public stigma and pressure to comply.
Aimed at agreements on lowest denominators of human rights because the definition itself and what it encompasses is not agreed upon universal.

Common Law

* Rights to privacy, freedom of speech, will be found in past precedents that judges continuously develop
Human rights come from judges themselves because they interpret legislation and where ambiguity exists, international Human Rights law are examined.
Mabo: non discrimination is a basic principle of international law and everyone is entitled to basic human rights.

2 3. Human Rights Trial by Jury

s 80 of the Constitution appears to guarantee a right to trial by jury for offences arising under Commonwealth laws. The guarantee operates only where there is a "trial on indictment".

* Does not apply to summary offence: R v Archdall & Roskruge; Ex parte Carrigan and Brown (1928)

* The High Court has repeatedly held that the application of these words lies wholly within the discretion of the Commonwealth Parliament (narrow approach): Kingswell v The Queen (1985); Cheng v The Queen (2000)
It is Parliament that, in creating an offence and providing for its trial and punishment, determines whether the trial shall be summary or on indictment. Consequence of the s 80

* Defendant can't elect to waive the right to jury: Brown v The Queen (1986)

* Jury unanimity is an essential element of the "trial by jury" guaranteed by s 80: Cheatle v The Queen (1993) The range of the offence to which s 80 applies

1. The Customs Act 1901 (Cth) imposed forfeitures and penalties for customs offences.

2. Section 233B set out offences of "attempting" to import or "aiding and abetting" importation or narcotic drugs.

3. Under s 235, the penalties for such an offence depended upon a finding by a judge, rather than a jury, as to whether or not a "commercial quantity" of narcotic goods was involved, with the maximum sentence varying accordingly (up to life imprisonment).

Kingswell v The Queen (1985) 159 CLR 264

* Section 80 says nothing as to the manner in which an offence is to be defined. Since an offence against the law of the Commonwealth is a creature of that law, it is the law alone which defines the elements of the offence.

* Section 80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily. Deane J (Dissenting)
Offence 'triable on indictment' is shorthand for a serious offence, and that serious offences should be tried by jury.
Serious offence determined by gravity of punishment (ie > 1 year). Both Brennan and Deane JJ dissented in Kingswell on the grounds that, by establishing a different sentencing regime for offences involving a "commercial quantity" of narcotic substances, the Parliament had in effect created a distinct and separate offence that attracted its own separate operation of the guarantee in s80. Cheng v The Queen (2000) 203 CLR 248
Whether the offence is tried or triable on indictment depends in the first instance on Parliament's classification of the offence. The consequence of s 80

1. The issue was whether a trial judge in South Australia, in a trial under s 86A of the Crimes Act 1914 (Cth), was entitled to accept a majority verdict, that is, 10 out of 12 jurors, as permitted by s 57 of the Juries Act.

Cheatle v The Queen (1993) 177 CLR 541
A basic principle of the administration of criminal justice in each of the Colonies, that the verdict of a criminal jury could be returned only by the agreement of all the jurors.

* The requirement of a unanimous verdict ensures that the representative character and the collective nature of the jury are carried forward into any ultimate verdict.

* The necessity of a consensus of all jurors, which flows from the requirement of unanimity, promotes deliberation and provides some insurance that the opinions of each of the jurors will be heard and discussed.

* Thereby, it reduces the danger of "hasty and unjust verdicts".

* Moreover, the common law's insistence upon unanimity reflects a fundamental thesis of our criminal law, namely, that a person accused of a crime should be given the benefit of any reasonable doubt. Freedom of Religion

s 116 contains four separate guarantees: the Commonwealth shall not make any law

* "for establishing any religion", 3

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