Legal - Unit 4 Topic 1&3 Exam

describe a bill of rights

*A formal declaration of the legal and civil rights of the citizens of any state, country or federation. - Rights are accompanied by a duty - A legal right (accompanied by a legal duty of the State) is protected by the legal system, a human right is not unless the two coincide

describe the main features of principal treaties, including the Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW)

*Convention on the Elimination of All Forms of Discrimination Against Women (1976) (CEDAW): UN Commission on the Status of Women was established in 1946 to monitor and promote women's rights - uncover areas in which women were treated unequally to men which influenced the development of CEDAW Treaty reaffirms the key ideals at the centre of the instruments that form the International Bill of Rights - all people treated equally and without discrimination CEDAW's purpose is to set out steps crucial to eliminate discrimination against women Six parts and 30 articles Adopted by the UN general assembly in 1979, entered into force in 1981 - AUS signed it in 1983 with two reservations - maternity leave (although now 18 weeks paid maternity leave at minimum wage) and women's access to combat roles in the Defence Force (later partially withdrawn) - Preamble: All human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex *Part 1, Articles 1-6: Sets out the scope of the treaty, including key terms, condemnation of discrimination and the commitments undertaken by States Article 1: Discrimination against women shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article 2: States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay, a policy of eliminating discrimination against women and, to this end, embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realisation of this principle (in particular in the political, social, economic and cultural fields). *Part 2, Articles 7-9: Eliminating discrimination against women in the political and public life - right to vote and be elected into government, and right to nationality Article 7: States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right to vote in all elections and public referenda and to be eligible for election to all publicly elected bodies. Article 8: States Parties shall take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organisations. Article 9: States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband. *Part 3, Articles 10-14: Right to work and equal treatment in respect of work of equal value, right to equal health care Article 10: States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women the same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories. Article 11: States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular the right to work as an inalienable right of all human beings. Article 12: States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. *Part 4, Articles 15-16: (15) States Parties shall accord women equality with men before the law, and (16) take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations - the same right to enter into marriage and the same right freely to choose a spouse and to enter into marriage only with their free and full consent *Part 5, Articles 17-22: Establishes the Committee on the Elimination of Discrimination against Women and reporting procedures *Part 6, Articles 23-30: Describes CEDAW's effect on other treaties - Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (1999): Purpose - strengthen the enforcement mechanisms available for women who have their human rights breached - allowing individuals to complain to the Committee when they have exhausted all avenues of complaint at the domestic level This was acceded by AUS in 2009 as there was strong support from non-government organisations and members of the public, as well as states and territories - Committee on the Elimination of Discrimination against Women: Established in article 17 - along with the rules, purpose and procedures relevant to the Committee 23 independent elected members from signatory countries It examines parties' implementation of convention rights Makes recommendations how compliance can be improved, eg. amendments to domestic law, creating a charter of human rights, sexual harassment and violence against women improvements, filling in gaps in the effectiveness of the Sex Discrimination Act 1984 (Cth) Accepts individual complaints about violations of rights under the convention

describe key human rights initiated or promoted in the Disability Discrimination Act 1992 (Cth)

*Convention on the Rights of Persons with Disabilities (2006) (CRPD): - Adopted in 2006 to elaborate on the rights of persons with disabilities and set out a code of implementation - consolidates and clarifies how existing human rights apply to people with disabilities - identifying areas where adaptations have to be made for people with disabilities to exercise their rights (empowered to make their own decisions) First binding international human rights instrument to specifically focus on disability AUS ratified in 2008 and the Optional Protocol in 2009 CRPD Ratification Task Force outlined the following benefits: significant economic, environmental, social and cultural impacts, no negative impacts, no significant barriers and overwhelming support from the disability sector Preamble and 50 articles *Article 1: The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. Article 3: General principles: Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons - Non-discrimination - Full and effective participation and inclusion in society - Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity - Equality of opportunity - Accessibility - Equality between men and women - Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities Article 4: States Parties undertake to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability: To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the present Convention To take all appropriate measures to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes - Optional Protocol to the Convention on the Rights of Persons with Disabilities: Allows individuals or groups to file complaints to the Committee on the Rights of Persons with Disabilities - Committee on the Rights of Persons with Disabilities: Monitors implementation of CRPD member states requires to submit reports on the effectiveness on the rights being implemented eg. positive feedback on the National Disability Strategy, use of ALRC to inquire into barriers faced by disabled people and recommendations eg. compulsory modules on working with persons with disabilities, providing resources for support services for disabled people to live in their communities and set targets for disabled students to participate/complete school Also examines individual complaints and inquires cases of violations of the CRPD *Disability Discrimination Act 1992 (Cth): Legislation that predates the CRPD and provides protection against direct and indirect discrimination on the basis of disability - s4 = disability, in relation to a person, means: total or partial loss of the person's bodily or mental functions; or total or partial loss of a part of the body; disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment - The Act makes it unlawful to discriminate against someone for having a disability in the following areas: s15-21B = employment s22 = education s23 = access to infrastructure - government buildings, hospitals, shops and libraries s24 = provision of goods, services and facilities s28 = sport s29 = administration of Commonwealth laws and programs - Administered by the AHRC - investigates and conciliates discrimination complaints and grant exemptions s55 for individuals or organisations to not follows Act provisions - QLD - Anti-Discrimination Act 1991 (Qld) and Human Rights Act 2019 (Qld) - supports objectives of the CRPD

describe the main features of principal treaties, including the Convention on the Rights of the Child 1991

*Convention on the Rights of the Child (1990): Treaty that recognises specific human rights of children - to be empowered and independent - no longer simply subject to adult control (minimum entitlements and freedoms) 1948 Declaration (art.25) = (1) everyone has right to an adequate standard of living for their health/well-being and (2) motherhood and childhood are entitled to special care and assistance Australia ratified the treaty in 1990, the same year - the most widely ratified human rights treaty in history The convention covers the needs of children within civil, political, economic, social, health and cultural spheres *Preamble: Recognises that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding Considers that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity - Article 1: Child is defined a being "every human being below the age of eighteen years unless, under the law applicable to the child, a majority is attained earlier" - Article 2: 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or another opinion, national, ethnic or social origin, property, disability, birth or another status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members. - Article 3: 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. - Article 6: 1. States Parties recognize that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child. - Article 12: 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall, in particular, be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. *Convention in Australian Law: AUS argues that the rights listed in the 1990 Convention are included in a number of domestic legislation in both State and Commonwealth legislation, rather than one single Act (FLA amendments in 2012) Some argue that s60 should be amended to give children the opportunity to express their views and participate in the decision-making process if they wish to (FLA is limited in its application) - Family Law Act 1975 (Cth): Section 60CA: A court must regard the best interests of the child as the paramount consideration in making a parenting order Section 60CC: Requires the court to consider any views expressed by the child The court may inform itself of the child's views by (a) regarding anything contained in a report, (b) make an order for the child's interests to be represented by an independent lawyer - Compliance: Compliance is monitored by the UN Committee on the Rights of the Child, as well as the UNHRC for countries that have ratified the 1990 convention - required to report and appear before them Future issues (raised by AUS Child Rights Taskforce) - legislative and policy responses need to be improved for groups that face barriers to enjoy their rights as children, including ATSI, refugees, disabled, LGBTQIA+, mental health, homelessness, child abuse, juvenile criminals.

describe the main features of international law developed from the International Bill of Human Rights, consisting of the Universal Declaration of Human Rights

*International law = A body of rules established by custom or treaty and recognised by nations as binding in their relations with one another. *United Nations Charter: - United Nations established in 1945 - from the impact of WWII - Great Powers recognised the need to establish an international body to promote world peace and international law - Charter of the United Nations signed by Australia and unanimously adopted in 1945 - The UN can take action on - peace and security, climate change, sustainable development, human rights, terrorisms, humanitarian and health emergencies, gender equality, governance and food production - Provides a forum for its members to express their views in the General Assembly, Security Council, Economic and Social Council and other bodies - enables dialogue between members and negotiation, a mechanism for governments to define areas of agreement and solve problems together - AUS is a signatory and founding nation - committed to the Purposes, Principles and Processes (required to meet international obligations, participating in cases in the International Court of Hague, human rights - ATSIP and refugees seeking asylum) - Preamble: We the peoples of the United Nations Determined to: Save succeeding generations from the scourge of war Reaffirm faith in fundamental human rights, the dignity and worth of the human person, the equal rights of men and women and nations large and small Establish conditions under which justice and respect for the obligations arising from treaties and other international law Promote social progress and better living standards in larger freedom - Chapter 1: Purposes and Principles Article 1 (Purposes): Maintain international peace and security (prevent and remove threats of peace and in conformity with principles of justice and international law, settle international disputes which might lead to a breach in peace) Develop friendly relations among nations (respect for equal rights and self-determination of peoples, and strengthen universal peace) Achieve international co-operation in solving international problems of economic, social, cultural or humanitarian character (promote and encourage respect for human rights without discrimination of race, sex, language, or religion) Be a centre for harmonizing actions of nations in the attainment of these common ends - Article 2 (Principles): Sovereign equality of all its Members Members fulfil assumed obligations Members settle international disputes by peaceful means Members refrain from the threat or use of force against the territorial integrity or political independence of any state Members give UN assistance in any action it takes in accordance with the Charter The Organisation ensures non-Member states act in accordance with these principles as necessary to maintain international peace and security UN cannot intervene in matters within the domestic jurisdiction of any state - Article 4: Membership to UN is open to all other peace-loving nations which accept and are able to carry out Charter obligations Admission of states will be affected by the decision of the General Assembly upon recommendation of the Security Council - Article 5: A Member against which action has been taken by the Security Council may be suspended from Membership by the General Assembly from recommendation by the Security Council, Membership can also be restored - Article 6: A Member which persistently violates Charter principles may be expelled from the Organisation - Article 7: Established principal organs of the UN: General Assembly, Security Council, Economic and Social Council, Trusteeship Council, International Court of Justice and Secretariat *UN Universal Declaration of Human Rights (1948): - WWII led to global recognition of human rights in the UN Universal Declaration of Human Rights (1948) - modern human rights - a duty that they are known, understood and enjoyed by everyone, everywhere - As an original member of the UN, the AUS government has formally committed to passing laws to uphold the letter and spirit of the Declaration, although not part of the AUS law, it is an international benchmark by which laws can be evaluated - The Declaration does not create law and is not an agreement creating legal obligations, but it is a statement of principles that nations should aspire and adopt, where possible, into their national law - Preamble: The Universal Declaration is a common standard of achievement for all nations to strive by teaching and education to promote respect for the rights and freedoms of this Declaration to secure their universal and effective recognition and observance Article 1: All human beings are born free and equal in dignity and rights Article 3: Right to life, liberty and security of person Article 4: No one shall be held in slavery or servitude Article 7: All are equal before the law, entitled without any discrimination to equal protection of the law Article 9: No one shall be subject to arbitrary arrest, detention or exile Article 10: Everyone entitled to full equality to a fair and public hearing by an independent and impartial tribunal Article 13: Right to freedom of movement and residence within the borders of each state, everyone has the right to leave any country and return to his country Article 14: Right to seek and enjoy in other countries asylum from persecution Article 17: Everyone has the right to own property alone as well as in association with others Article 18: Right to freedom of thought, conscience and religion Article 19: Right to freedom of opinion and expression Article 20: Freedom of peaceful assembly and association (eg. unions, churches) Article 21: Right to take part in government of his country; periodic and genuine elections Article 25: Right to a standard of living adequate for the health and well-being of himself and his family Article 26: Right to education International Law: - Is the system of rules, principles and practices that govern relationships between nations and between nations and other international bodies - When a country signs an international treaty (becomes a signatory) it is under an obligation to ensure their domestic law conforms to the treaty's terms - ratified or acceded to become part of that nation's law Need for International Law - relationship between nation-states needs stability and consistency (due to communications and trade - coordination and cooperation), and prevention of war - protect nations and individuals - 1899 the Hague Conference established the Permanent Court of Arbitration as a venue for peaceful resolution of international disputes - but didn't stop WWI or WWII, this led to the International Court of Justice (ICJ) and ICC Features of International Law: - It is not made by any national legal system, but entities representing the nation-states of the world. Consequences of this: - International Law cannot be enforced like national laws, there are direct legal consequences, however, there are no international police, prisons, or courts with jurisdiction over all nations and all people - nations can ignore or break many international laws without fear of repercussions, other than diplomatic disapproval or economic sanctions (being a signatory doesn't equal a binding legal obligation) - No national legislature or parliament for international law (not UN General Assembly or any other body) - ICJ and ICC hear a small number of cases - greater uncertainty on legal issues that arise in nation-states

describe key human rights initiated or promoted in the Racial Discrimination Act 1975 (Cth)

*Racial Discrimination Act 1975 (Cth): Incorporates treaty obligations into domestic legislation - Aims of the act: Promote equality before the law for all persons, regardless of race, colour or national or ethnic origin Make discrimination on the basis of race, colour, descent or national or ethnic origin, unlawful Provide protection against racial hatred - The act makes it unlawful to insult, humiliate, offend or intimidate a person on the basis of their race, colour, descent, national or ethnic origin (s9 and s18c) The act prohibits discrimination on the basis of race in the following areas: s11 = access to places and facilities s12 = land, housing and other accommodations s13 = provision of goods and services s14 = trade union membership s15 = employment s16 = advertisement - An individual can apply to a federal court to have complaints heard and determined, embodying article 6 of CERD - access protection from discrimination and seek reparation from tribunals for damage suffered

explain the rights of states (sovereignty, equality, political independence and territorial integrity), including Articles 2.1, 2.4 and 2.7 of the United Nations Charter

*Rights of States: Membership of the UN - open to all peace-loving states which accept UN Charter obligations, admission is decided by General Assembly upon Security Council recommendation To be defined as a state: - Permanent population - Defined territory - Government - Capacity to enter into relations with the other states - States have the ability to agree to conventions - Have exclusive competence in internal affairs - Not subject to compulsory international processes, jurisdiction or settlement without consent - States are regarded as 'equal' - Territorial disputes - all sovereign nations have borders, this dispute is a disagreement over control of land or sea between two or more territorial entities - Sovereignty (statehood) - important to the extent to which legal relationships between states are binding, and the extent to which the UN can involve itself in domestic law

describe key human rights initiated or promoted in the Sex Discrimination Act 1984 (Cth)

*Sex Discrimination Act 1984 (Cth): Key piece of federal domestic legislation that makes discrimination against individuals on the basis of sex unlawful - only gives partial effect to obligations under CEDAW, but states and territories also have anti-discrimination legislation eg. Anti-Discrimination Act 1991 (Qld) *Objectives - promote equality between men and women, eliminate discrimination and eliminate sexual harassment at work - The Act prohibits discrimination on the grounds of sexual orientation, gender identity, intersex status, marital/relationship status, pregnancy or breastfeeding under the areas of: s14 = employment s21 = education s22 = goods, services and facilities s23 = accommodation s24 = land s25 = clubs s26 = administration of Commonwealth laws and programs s27 = requests for information

describe a signatory treaty

*State that is in political support of the treaty and willing to continue its engagement with the treaty process. This intent is codified as a "signature" submitted to the qualifying international body with oversight of the treaty. *signatory = intention to be bound by it; together States agree on the terms that will bind the signatory states. Once they reach an agreement, the treaty will be signed, usually by the relevant ministers. By signing a treaty, a state expresses the intention to comply with the treaty. Under the Vienna Convention on the Law of Treaties (1969): Articles 10 and 18 - Signatory: A signature does not establish consent to be bound, but it expresses a willingness to continue the treaty-making process

describe a royal commission

*The highest form of a formal public inquiry to look into matters of great importance and usually controversy - an independent public inquiry established by governments to examine complicated issues, hear testimony from people involved, and recommend ways of achieving a resolution

describe treaties

*a formally concluded and ratified agreement between countries *a formalised agreement between two or more nations about a particular area of mutual interest (such as trade, prisoner exchanges or human rights); often used synonymously with convention, covenant, charter, protocol and/or statute. - Optional protocol: A treaty that complements and adds to an existing human rights treaty. For this reason, only States that have already agreed to be bound by a parent treaty may choose to be parties to these agreements. Australia's treaty tabling arrangements: 1. Treaty 2. Cabinet or Ministerial Agreement 3. Federal Executive Council Approval 4. Signature 5. Consultations (including necessary legislation or changes to practice) 6. Cabinet or Ministerial Agreement 7. National Interest Analysis (NIA) prepared 8. Treaty and NIA submitted to Treaties Secretariat for Parliament tabling 9. Table treaty in Parliament, Joint Parliamentary Committee on Treaties 10. Final treaty action through ratification or accession following Executive approval Australia has signed and ratified 7 principal international human rights treaties: ICCPR - International Covenant on Civil and Political Rights (1966) ICESCR - International Covenant on Economic, Social and Cultural Rights (1966) CRC - Convention on the Rights of the Child (1990) CAT - Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1985) CERD - Convention on the Elimination of All Forms of Racial Discrimination (1966) CEDAW - Convention on the Elimination of All Forms of Discrimination Against Women (1976) CRPD - Convention on the Rights of Persons with Disabilities (2006)

explain the process by which treaty obligations translate into domestic law through accession or ratification

*accession - When a nation-state enters into a treaty that has already been formed after it has been negotiated and signed by other states. *ratification - The process of full adoption of the obligations imposed by a treaty or covenant into Australian law by the passing of legislation through the federal parliament that mirrors and enacts the treaty obligations. *Under the Vienna Convention on the Law of Treaties (1969): - Articles 2(1)(b), 14(1) and 16 - Ratification: Confirming with the other parties that they consent to be bound by the treaty, the treaty is now officially binding on the state. It means confirmation. The institution of ratification grants states the necessary time frame to seek the required approval for the treaty on the domestic level and to enact the necessary legislation to give domestic effect to that treaty. - Articles 2(1)(b) and 15 - Accession: The act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states. It has the same legal effect as ratification. Accession usually occurs after the treaty has entered into force. AUS does not have a bill of rights as a primary source of human rights law, the source of human rights law in AUS is haphazard: *Federal and State Legislation: - Unambiguous and precise words in statutes (State and Federal Parliament) override common law rights Legislation has been passed expanding common law rights: *Rights of the Child: CRC - best interests of the child is the paramount consideration (Family Law Act 1975 (Cth) has stated this principle - s60CA) *Right to Healthy Environment: Convention Concerning the Protection of the World Cultural and Natural Heritage - healthy environment (lead to World Heritage Properties Conservation Act 1983 (Cth) - Tasmanian Dam Case = Federal Government override Tasmanian Government) *Right to not be Discriminated Against: Federal level: Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Disability Discrimination Act 1992 (Cth) Age Discrimination Act 2004 (Cth) Workplace Gender Equality Act 2012 (Cth) Australian Human Rights Commission (AHRC) - hears complaints State-level: Anti-Discrimination Act 1991 (Qld) - establishes the Queensland Human Rights Commission - hears complaints *Common-Law: Decisions of judges - common law has been changed by various acts of Parliament (statute law), but still forms the basis of much of the law; common law rights: Right to a court hearing Right to challenge sentence imposed by a court outside what is allowed by statute Right to sue government and authorities Right to legal representation Right to not be detained unlawfully Right to a fair hearing Right to freedom of speech and movement Common-Law and Protection of Human Rights: Doctrine of precedent eg. Mabo v Queensland (1992) where High Court reversed the decision of lower courts (terra nullius) and created native title Common-Law and Freedoms and the Interpretation of Statutes: The courts can prevent Parliament from taking away common law rights by applying principles of statutory interpretation which have evolved as the courts have made decisions about how Parliament Acts have taken away common law rights Parliament can encroach on common law rights, but courts ensure rights and freedoms are protected to the extent the legal system allows it - The question as to whether a Bill of Rights is needed to enhance protection *Customary Law: Developed into common law eg. Mabo case Customary law is most relevant when sentencing ASTI people convicted of offences, to make it more relevant - they wish for Aboriginal Customary Law to be more integrated into the legal system as it is part of their culture

describe the main features of international law developed from the International Bill of Human Rights, consisting of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

- ICESCR and ICCPR are considered complementary twin pillar containing the rights that are indivisible and necessary to ensure respect for human rights and human dignity - It sets out basic rights to work, fair and just conditions of work, social security, adequate living standards (housing, food and clothing), health and education AUS ratified (no declarations or reservations) ICESCR in 1975, but hasn't fully implemented provisions into domestic legislation - relies on existing legislation, Committee on Economic, Social and Cultural Rights stated they are concerned about this 170 states party to ICESCR - preamble, 31 articles, divided into 5 parts - Preamble: The ICESCR provides the legal framework to protect and preserve the most basic economic, social and cultural rights, including rights relating to work in just and favourable conditions, to social protection, to an adequate standard of living, to the highest attainable standards of physical and mental health, to education and to the enjoyment of the benefits of cultural freedom and scientific progress. Part 1, Article 1: All peoples have the right to self-determination Part 2, Articles 2-5: Establishes that these rights should be recognised without discrimination and that States take steps to progressively achieve listed rights Article 2: right to non-discrimination and the right to an effective remedy Article 3: the equal right of men and women to the enjoyment of economic, social and cultural rights in the ICESCR Part 3, Articles 6-15: Lists economic, social and cultural rights Article 6: the right to work Article 7: the right to just and favourable conditions of work Article 10: protection of the family, mothers, children and young persons Article 11: the right to an adequate standard of living, including adequate food Article 12: the right to health Article 13: the right to education Article 14: primary education Article 15: the right to participate in cultural life Part 4, Articles 16-25: Governs reporting and monitoring of the Covenant Part 4, Articles 26-31: Concerns ratification, when ICESCR is in force, and amendments - Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2008): Allows Committee (ECOSOC) to consider complaints from individuals or groups who claim their rights under ICESCR have been violated - Australia hasn't accepted *ECOSOC: Signatories required to submit a progress report to the Secretary-General of United Nations (Article 16) who then transmits these to ECOSOC (18 independent experts nominated by state parties for four-year terms It monitors the implementation of Covenants by States (assisting governments to fulfil obligations by making legislative recommendations) It interprets articles Committee remains concerned for climate change policy, the system of offshore processing of asylum seekers and Indigenous consultation

describe covenants

*agreements between two or more nation-states; a type of treaty (civil aviation, environment and defence) *binding agreement between states; used synonymously with Convention and Treaty. Eg. International Covenant on Civil and Political Rights (1996) - ICCPR. - Covenants are first adopted by a resolution by the General Assembly before they are opened to nation-states to sign and ratify - A nation-state that ratifies a covenant voluntarily agrees to be bound by its terms

describe a convention

*an agreement in relation to human rights between two (bilateral) or more (multilateral) to be bound by a treaty/covenant/protocol/declaration *Similar to a treaty but more often on specific matters or issues; often used synonymously with a treaty, covenant, charter, protocol and/or statute. Eg. Convention of the Rights of the Child (1990) - CRC. - a covenant or treaty - conventions that take place under the auspices of the UN create agreements between member states as a primary source of international law - Convention = sources of international law (treaties, covenants, statutes, protocols, charters and agreements) - Features: terms set out clearly, formalities which must be observed for it to be binding, must state the parties intend for it to be binding according to international law, state parties enter agreement voluntarily, and must be signed by an authorised representative of the nation - Conventions don't require consideration, but nations can indicate they will sign but make some reservations about their obligations under the treaty (eg. protocols amendments or supplements to an earlier treaty or agreement) - All conventions, to be effective law internationally and domestically must be binding: between nations, by complying with agreed UN arrangements, and to have been passed into the law of nation-state

describe the meaning of bilateral

*bilateral treaties = treaties between two countries A formal agreement entered into by two nation-states.

describe states

*countries with defined boundaries and sovereignty to control what happens within those borders *a nation or territory considered as an organised political community under one government.

describe the meaning of multilateral

*multilateral treaties = between 3 or more countries A formal agreement entered into by more than two nation-states.

describe sovereignty

*the ability of a state to govern its territory free from the control of its internal affairs by other states *the concept that a government exercises full control over affairs within a geographical or territorial limit; this means it can pass laws and enforce them within this area and exists as an essentially independent legal and political body in this space. - State sovereignty: The basic principle that states have exclusive jurisdiction of what happens within their borders, due to states having different priorities, values, traditions, religions and practices

describe human rights

*the basic rights to which all people are entitled as human beings *fundamental rights that are considered to belong to every person regardless of race, gender, age, nationality or religion. These basic human rights are: - Universal: They belong to all of us - everybody in the world - Inalienable: They cannot be taken away from us - Indivisible and interdependent: Governments should not be able to pick and choose which are respected - It is right which is ethically good, proper and in conformity with the moral law as it pertains to people - All human beings are born with equal and inalienable rights and fundamental freedoms - Applies to all regardless of race, sex, religion etc. - The basis of modern human rights is the United Nations Universal Declaration of Human Rights (1948) - Human rights are the basic freedoms and protections that belong to every single one of us - the law must be just - All human beings are born with equal and inalienable rights and fundamental freedoms - Human rights are based on dignity, equality and mutual respect, regardless of your nationality, religion or beliefs - Rights are about being treated fairly and treating others fairly and having the ability to make choices Individual vs Collective Human Rights: - Individual human rights co-exist and it is universally agreed that individuals of a group possess the same human rights as other persons, although the group may not possess the same rights as other groups eg. land rights, voting rights and citizenship - There are debates whether group rights can be human rights, as some say they are borne by individuals, others say what is good and bad relates to the collective human condition

describe ratification

*the process of full adoption of the obligations imposed by a treaty or covenant into Australian law by the passing of legislation through the federal parliament that mirrors and enacts the treaty obligations. *ratify: creating domestic laws for the treaty Under the Vienna Convention on the Law of Treaties (1969): Articles 2(1)(b), 14(1) and 16 - Ratification: Confirming with the other parties that they consent to be bound by the treaty, the treaty is now officially binding on the state. It means confirmation. The institution of ratification grants states the necessary time frame to seek the required approval for the treaty on the domestic level and to enact the necessary legislation to give domestic effect to that treaty.

describe key human rights initiated or promoted in the Magna Carta 1215

- Magna Carta was issued in June 1215 and was the first document to put into writing the principle that the king and his government was not above the law. It sought to prevent the king from exploiting his power and placed limits of royal authority by establishing law as a power in itself. - Magna Carta, which means 'The Great Charter', is one of the most important documents in history as it established the principle that everyone is subject to the law, even the king, and guarantees the rights of individuals, the right to justice and the right to a fair trial. - The original Magna Carta had 63 clauses, today, only three of these remain on the statute books: 1. defends the liberties and rights of the English Church 2. confirms the liberties and customs of London and other towns, and the third gives all English subjects the right to justice and a fair trial 3. no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. - The Magna Carta is considered one of the first steps taken in England towards establishing parliamentary democracy.

explain the role of the UN, its agencies and other organisations, including the United Nations High Commissioner for Refugees

- The main function of the United Nations is to preserve international peace and security. Chapter 6 of the Charter provides for the pacific settlement of disputes, through the intervention of the Security Council, by means such as negotiation, mediation, arbitration, and judicial decisions. *United Nations High Commissioner for Refugees (UNHCR): Main UN organisation that protects and supervises refugees is the UNHCR - is the 'guardian' of 1951 convention and 1967 protocol Established in 1950 to "provide, on a non-political and humanitarian basis, international protection to refugees and to seek permanent solutions for them". Non-compliance - if country violates convention there are not any real legal consequences other than the government may face bad media publicity and the UN/UNHCR handing down a verbal/written condemnation

explain the role of reservations

- When a nation-state does not wish to be bound by every provision in a treaty so ratifies only the parts of the treaty by which it does agree to be bound. Under the Vienna Convention on the Law of Treaties (1969): - Articles 2(1)(d), and 19-23 - Reservation: A declaration by a state made upon signing or ratifying a treaty that the state reserves the right not to abide by certain provisions of the treaty. Reservations must be in writing, must not be incompatible with the purpose of the treaty, and a treaty may prohibit reservations or only allow for certain reservations to be made

explain and analyse the role of the following groups in protecting and/or advocating for human rights in Australia: - Australian Human Rights Commission, Australian Law Reform Commission, and state and territory Law Reform bodies - the courts - Queensland Council for Civil Liberties, Australian Human Rights Centre, Australian Lawyers for Human Rights - special interest groups, e.g. Amnesty International, church groups, International Federation of Red Cross and Red Crescent Societies (IFRC) - the media

A statutory body is set up by Parliament through the passing of specific legislation These bodies have the ability to exercise specific powers Australian Human Rights Commission - AHRC: · Investigates and resolves complaints of discrimination, harassment and bullying based on a person's: o Sex o Disability o Race o Age · Investigates and resolves complaints of discrimination, harassment and bullying in employment · Investigates and resolves complaints about breaches of human rights against the Commonwealth and its agencies Australian Law Reform Commission - ALRC: · Established by the Australian Law Reform Commission Act 1996 (Cth) · Sits within the Attorney-General's portfolio · Is independent · Conducts inquiries into areas of law and makes recommendations without fear, favour or political interference · Reviews Australia's laws to ensure they provide all Australians with improved access to justice · Conducts inquiries and provides recommendations on how an area of law can be reformed · The Executive, specifically the Attorney-General, refers matters to the ALRC (s20) · It is not free to choose any area to examine · s21 states its functions including: o bringing the law into line with current conditions (meets current needs) o simplifying the law o consider proposals for making Commonwealth laws about matters o considers proposals to repeal obsolete or unnecessary laws o consider proposals about uniformity between states and territories · Reports to the Attorney-General on the results of any review · Over 85% of ALRC reports have been either substantially or partially implemented making it one of the most effective and influential agents for law reform in Australia · When conducting an inquiry, the ALRC also monitors overseas legal systems to ensure Australia compares favourably with best practice · ALRC tries to ensure recommendations do not trespass on personal rights of citizens and they are consistent with Australia's international obligations Federal Legislation · A human rights complaint can be brought under the federal discrimination Acts o Sex Discrimination Act 1984 (Cth) o Disability Discrimination Act 1992 (Cth) o Racial Discrimination Act 1975 (Cth) o Age Discrimination Act 2004 (Cth) · Complaints are heard in the Federal Court of Australia · The Australian Human Rights Commission Act 1986 (Cth) s46 gives the Federal Court the power to hear proceedings · If the matter is before the Commission, the Commission must issue a notice of termination before the Federal Court can hear the complaint State Legislation · Qld state government has responsibilities for human rights enacted under the Anti-Discrimination Act 1991 (Qld) · Principles contained in the Act are derived from international human rights treaties · Alleged breaches under the Act can be lodged with the Anti-Discrimination Commission Queensland (the statutory authority which promotes and protects human rights in Queensland) Lodging Complaints A) Federal breach = Australian Human Rights Commission - Complaint must be in writing and include details of the nature of the complaint on the Commission's complaint form - If the President of the Commission is satisfied that the complaint cannot be resolved, the complaint will be terminated. If it is terminated the complainant can take it to the Federal Circuit Court or Federal Court of Australia within 60 days. B) State breach = Anti-Discrimination Commission Queensland - complaint must be in writing on Commission's complaint form and include sufficient details to show the respondent may have breached the Anti-Discrimination Act 1991 (Qld) - requires that complaints be lodged within one year of the incident To lodge complaint with the Federal Court · Must be lodged within 60 days after the issue of termination from AHRC · Person making the complaint must prove: o What happened, what was done and who did it o That what happened was unlawful under one of the discrimination statutes o That harm or damage was suffered because of what was done. Queensland Council for Civil Liberties https://www.qccl.org.au/ Volunteer organisation (non-profit) - Protect the human rights and civil liberties of all Queenslanders - Founded in 1966 in the shadow of the Queensland Government's repression of civil liberties during anti-Vietnam War protests Aims to: - Be vigilant in matters affecting civil liberties and to safeguard and develop respect for human rights and freedoms - Provide information about threats to, and the abuse of, rights and liberties and to foster the study of legal and human rights - Make submissions and inquiries to the government - Publicly opposes laws that undermine civil rights - Encourages public discussion - Supports publications of books and pamphlets on relevant subjects - Tries to ensure that society is upholding the ratified treaty's (UDHR and ICCPR) - Solutions to problems related to civil liberties including: - prison - reform - censorship - rights of minority groups - Voluntary Assisted Dying Media Release * 17 year olds not charged as adults Strength: * By publicly opposing a law, this creates awareness to the issue and gets other people involved Limitation: * Relies on financial contributions from members and outside donations as they receive no funding from the government - Lack power - Community matters (influence but not binding) Australian Human Rights Centre http://archive.ahrcentre.org/ - It is a research and teaching institute based in the Faculty of Law, UNSW. - comprised of lawyers, policy makers and researchers (not government) - AHRCentre aims to promote public awareness about domestic and international human rights standards, laws and procedures - Established in 1986 - Centre brings together practitioners, research fellows and student interns from Australia and internationally to research, teach and debate contemporary human rights issues - provide accessible information on significant human rights developments in Australia They promote public awareness of issues through: - research projects - education programs - publications - It also publishes the Australian Journal of Human Rights and the Human Rights Defender and hosts a number of seminars and events each year. * Protecting those feeling damage from worsening climate change * Transformative reparations for sexual violence crimes, considering making crimes available for complaint to the ICC Other issues: - disability, violence, gender, social security, new and social media, migrants and refugees, housing and health - A strength of the organisation is that it is made up of a range of academic people who aim to promote awareness of human rights in a way that is accessible to the general public - However, the limitation of this is that the AHRCentre has no legal jurisdiction and has no significant impact on the commonwealth government to create legal change for all Australians These advocacy groups are good at raising awareness, but can not enforce legal change like law reform commissions. Amnesty International · Amnesty International is one of the world's largest and most-respected human rights organisation · Amnesty's work is funded by the public/it's members - they are a non-government organisation who advocates for human rights · They are independent of any political ideology, economic interest or religion · It is an advocacy group campaigning for a world where human rights are enjoyed by all · It believes that no government is beyond scrutiny and no situation is beyond hope Church Groups · Many Church groups advocate for human rights protections consistent with religious teachings · For example - the World Council of Churches (WWC) is a special interest ecumenical group that advocates and lobbies for human rights · It achieves this by bringing together churches of various denominations in more than 110 countries throughout the world · A key aim of this group is to serve a human need by breaking down barriers between people and seeking justice and peace throughout the world International Federation of Red Cross and Red Crescent Societies (IRFC) · Founded in 1919 in Paris in the aftermath of WW1 · One of the oldest organisations · Carries out relief operations to assist victims of disasters and health emergencies ·Also helps communities in developing countries Media: Freedom of the press is one of the core rights in a liberal democracy Media reporters provide scrutiny of governments, laws, courts and legal procedures This scrutiny ensures that our governments, legislatures and courts are acting appropriately and achieving outcomes beneficial for society Media scrutiny holds both political leaders and public officials accountable to the people Accountability Can spread bias The media can provide a platform for interest groups campaigning for law reform Strengths: Can reach large audience Serves educative function Easily accessible 24/7 The media can generate public interest about a particular issue or case, which may create pressure for governments and law reform bodies to act Limitations: Can be easily saturated Quality of information can vary Unfortunately, some reporting can sensationalise or misrepresent the facts in order to attract readers Most media outlets are privately-owned companies that can sometimes act in their own interests and the interests of their journalists and proprietors Courts: Courts interpret laws to check if they are compatible with human rights, making decisions about legal disputes in human rights cases. Courts and tribunals protect human rights by making sure everyone can access the legal system. To uphold and protect the basic and fundamental rights of an individual, it is an indispensable obligation upon the State to provide affordable, effective and speedy trial of offences related to violation of human rights which can only be achieved by setting up special courts in each district as provided under the Act. It can be an individual or group situation, and comes up with a binding decision. Checks and balances, separation of powers. However, time and money can be limitations. Relies on their being legislation to uphold human rights, can't rely on international law. Australia only has five express human rights in the Constitution. These are the right to protection against acquisition of property on unjust terms (Section 51 (xxxi)), the right to a trial by jury (Section 80), freedom from economic regulation (s92), freedom of religion (Section 116) and prohibition of discrimination on the basis of State of residency (Section 117). The High Court has found that additional rights for individuals can be implied by the language and structure of the Constitution. The function of the High Court is to be the highest court of appeal for both Federal and State matters, and interpret the Constitution and legislation (ADA, DDA, RDA and SDA) to make decisions. Hence, the High Court of Australia plays an important role in protecting human rights, as Australia lacks a Human Rights Act or Bill of Rights. The High Court protects human rights by way of interpretation of the Australian Constitution, and creating implied rights (Right to free speech in relation to freedom of political communication, right to due process, freedom of assembly and right to vote). Separation of powers, sets precedent. Federal Court of Australia The Court's jurisdiction is broad, covering almost all civil matters arising under Australian federal law and some summary and indictable criminal matters. - hears matters from 4 federal discrimination act * The Court may order the person who discriminated against you attempt to fix the discrimination, or order that the person pay you compensation - Independence of judiciary - Compensation, facilitates ADR * The AHRC must have issued a Notice of Termination before the Court can begin to deal with the case * time consuming and can be costly Queensland Civil and Administrative Tribunal An independent, accessible tribunal that efficiently resolves disputes on a range of civil matters. - Children and young people - Family and education matters - Keeps matters out of court * The tribunal's purpose is to provide a quick, inexpensive avenue to resolve disputes between parties and make decisions - Accessible for people in rural areas, 91% successful resolution rate * Limited jurisdiction: - tenancy, debt, consumers and trader disputes, dividing fences, trees and buildings - Expected that they represent themselves - It is enforceable, but only Qld Jurisdiction Queensland Industrial Relations Commission Conciliation and arbitration of industrial disputes, sets conditions of employment, fixes wages and salaries, and decides claims of unfair dismissal. - Anti-discrimination in workplace environments eg. sex, race, disability, age - Discrimination at work, applying for work and sexual harrassment * The court is specific for one type of human rights issues, mainly for anti-discrimination and bullying in industrial matters and workplaces - Under the Anti-Discrimination Act 1991 (Qld) - They have an Anti-Discrimination guide that upholds their jurisdiction (current as of April 2021) * Limited jurisdiction: - worker's compensation, wage recovery, unfair dismissals, awards, agreements and work health and safety - Discrimination and harassment complaints not resolved by the QHRC can progress the QIRC for work-related complaints only, can be referred to by them

describe and explain the role of the Australian Constitution (including the foreign affairs power within s 51) in protecting express and implied human rights in Australia

Constitutional Protection of Human Rights: Australia is the only western democracy without either a constitutionally entrenched Bill of Rights or a Charter of Human Rights (a national Human Rights Act) A Bill of Rights is a list of the fundamental rights of citizens of a country, existing to protect the rights of individuals from being violated by the state or by other individuals An entrenched bill of rights is contained within the constitution of the country (cannot be changed by an act of parliament but only by referendum) - the Constitution has only been changed 8 times An unentrenched bill of rights is an ordinary act of parliament that can be altered or repealed by parliament QLD - Human Rights Act (2019) Without a Bill of Rights, protections for human rights may be found in the Constitution and in legislation passed by the Commonwealth Parliament or state/territory parliaments: The Commonwealth Constitution defines and protects rights in two different ways: Express rights - in the Constitution (entrenched) Implied rights - not in the Constitution - suggested/inferred by them (derived from the rulings/constitutional interpretation of the High Court) - Power to enter into a treaty = executive power (s61 of Constitution) - the final decision is made by Federal Executive Council (Governor-General and Cabinet) - To give legal effect to a treaty the Commonwealth relies on the external affairs power in s51 (xxix) eg. Tasmanian Dam Case - Constitution of Australia: *The system of fundamental principles according to which a nation, state or body politic is governed; written document created with the approval of the nation *The majority of delegates felt a Bill of Rights not needed, the fundamental purpose of the Constitution was to establish Commonwealth Government and what powers it should have - did not attempt to deal with Human Rights, but some rights are: s51 (xxxi) - right to just compensation (acquisition of property) s80 - right to trial by jury s92 - right to free trade between the states s116 - right to freedom of religion s117 - right against discrimination on basis of out-of-state residence s7 and s24 - right to vote (House of Reps members directly chosen by the people) *Implied rights - the political and civil freedoms that necessarily underlie the actual words of the constitution but are not themselves expressly stated directly in the constitution eg. democratic right of the freedom of political communication *Political communication concerns the creation and exchange of ideas and opinions between citizens, public officials, political institutions, and related entities, such as the media Implied Rights: Right to free speech (freedom of political communication) Right to due process Freedom of assembly Right to vote We get implied rights through High Court Rulings: Lange v. Australian Broadcasting Commission (1997): David Lange sued ABC for defamation after the broadcast allegations of Lange's political funding. The ABC, in an appeal to the High Court, claimed the Constitution contained an implied right to freedom of speech with regard to political commentary. The High Court accepted this but also ruled that this freedom was not unlimited, upholding that Lange had indeed been defamed by the ABC. Roach v Electoral Commissioner (2007): The High Court examined the validity of Commonwealth legislation that prevented prisoners from voting, as they found that the legislation was inconsistent with the system of representative democracy established by s7 and 24 of the Constitution (representative government). The Court decided that persons in jail for less than three years did have a right to vote. Through interpretation of the Constitution, the High Court has found that we have an implied right to vote in Australia. Foreign Affairs Power: Commonwealth signs treaties - if there is an area that they can't make legislation for (residual and not concurrent power) - States have to make it When a treaty deals with subject matter that Commonwealth Parliament has no constitutional right to legislate over, state legislation is necessary to meet Australia's treaty obligations If the Commonwealth Government, having entered into such a treaty, wishes to ensure that Australia is meeting its international legal obligations, the Commonwealth is obliged to negotiate with the States to ensure that State laws comply with the treaty However, this is not the case. Section 51 (xxix) of the Constitution reads: The [Commonwealth] Parliament shall, subject to this Constitution, have the power to make laws for the peace, order, and good government of the Commonwealth with respect to . . . external affairs. A series of High Court judgements highlights this power (Koowarta v Bjelkie-Peterson (1988) HCA and Commonwealth v Tasmania (Tasmanian Dam Case) HCA (1983)) The scope of the external affairs power has been subject to extensive judicial and academic debate. The High Court has recognised three limbs of the head of power: Australia's relations with other countries Matters external to Australia (geographically) Implementation of treaties Commonwealth Government has jurisdiction under the foreign affairs power to implement legislation to ratify human rights treaties Even where the treaty content does not fall within the Commonwealth's jurisdiction (i.e., outlined in s51 of the Constitution), they still have capacity to implement laws pursuant to the foreign affairs power (s51 xxix) The Tasmania Dams case was so significant because the generous interpretation of the foreign affairs power significantly increased the scope of Commonwealth law-making power. The Commonwealth now has the power to pass laws on subjects not listed in the other s. 51 heads of power, provided the laws relate to a treaty ratified by the Commonwealth.

describe the main features of principal treaties, including the International Convention on the Elimination of All Forms of Racial Discrimination 1966 (ICERD)

Discrimination: *HRC - discrimination occurs when an individual or group is treated less favourably than another person or group because of their background or certain personal characteristics eg. sex, age, race, impairment, religion, political beliefs or gender identity. - There are international human rights instruments and domestic laws that support an individual's right to not be discriminated against eg. Australian Human Rights Commission Act 1986 (Cth) and Anti-Discrimination Act 1991 (Qld) - Australian Human Rights Commission (AHRC) is one body responsible for dealing with discrimination at a domestic level, and there are international bodies that monitor compliance with treaty obligations - however, despite legal protections, discrimination still occurs *International Convention on the Elimination of All Forms of Racial Discrimination (1966) (ICERD): - Creation was influenced by the UN general assembly in 1960 which called on countries to prevent all manifestations of racial, religious and national hatred - extreme anti-Semitism during WWII AUS - problem with oppression and dispossession of ATSI peoples and the White Australia Policy (racism) Made up of 25 articles across three parts CERD was adopted by the general assembly in 1965 and entered into force in 1966, Australia ratified Convention in 1975 - AHRC (2019) stated it promised to do these things - Preamble: Considers that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organisation, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion Considers that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination *Article 1: Defines racial discrimination as being "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life" Article 2: condemns racial discrimination, obliges parties to pursue a policy that eliminates racial discrimination and promotes understanding among all races Article 3: condemns apartheid and racial segregation and asks State Parties to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction Article 4: prohibits incitement of racial hatred (Australia made a reservation) Article 5: concerns equality before the law - describing a number of specific political, civil, social, economic and cultural rights Article 6: obliges parties to provide effective protection and remedies for any act of racial discrimination Article 7: asks parties to adopt measures that encourage understanding and tolerance Article 11-13: establishes dispute resolution mechanisms between parties Article 14: establishes individual complaints mechanism Article 22: allows disputes over the interpretation/application of CERD to be referred to the International Court of Justice - CERD Committee: *Established to monitor member states compliance with CERD Made up of 18 independent experts from different countries who take an oath of impartiality Every country that has ratified CERD must submit a report outlining the legislative, judicial and executive measures taken to support CERD at regular intervals CERD then makes recommendations on what a State should do to make improvements (accountability under the law in terms of decisions made) eg. ATSI should be recognised as First Nations Peoples and appoint a Race Discrimination Commissioner (2010)

explain the effect of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)

International conventions and agreements: - Although human rights conventions are entered into by Commonwealth Government, they are not automatically part of domestic law - they need to be incorporated into legislation to be directly enforced in courts/tribunals - Difficulty in having to refer back to international covenants to uphold the program of the Commonwealth - Australia's Human Rights Framework was established - A key feature of Framework - Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) - The purpose of the Scrutiny Act was to ensure that future Commonwealth laws would be consistent with Australia's human rights obligations contained in International Covenants (ICCPR, ICESCR, ICERD, CEDAW, UNCAT, CRC, CRPD) - no other conventions or domestic legislation is not the subject of scrutiny - Two main aspects of the act: 1. When a Parliament member proposes to introduce a Bill for an Act, a person must prepare a Statement of Compatibility (SOC) - assessment of whether Bill is compatible with Human Rights under the above recognised international instruments 2. Establishment of Parliamentary Joint Committee on Human Rights (PJCHR) - 10 people made up of 5 members from each House of Parliament - function is to examine Bills coming before Parliament for compatibility with human rights and examine current Acts (using SOC to assist with decisions) to issue reports to inform Parliamentary deliberations - also enquires matters referred to by the Attorney-General - In 2018 - assessed 2,000 bills - only sought responses from 76 and further responses to 15 of those There has been a judicial attempt to make international conventions relevant in government decision making eg. Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995 HCA 20] - CRC - The High Court has not dealt again with whether a treaty ratified by AUS but not incorporated into domestic law can result in legitimate expectation for administrative law purposes

explain and analyse the rights that Australians have in criminal and civil contexts, including the role of express and implied rights in ensuring equality under the law, e.g. right to free speech, right to protest and the freedom of assembly, freedom from discrimination, right to democratic representation, freedom of religion and right to trial by jury

Right to Free Speech: - - The right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR) - Freedom of opinion and expression is an inalienable right of a free people. Australia is committed to The Universal Declaration of Human Rights. Article 19 of the Declaration provides that everyone has the right of freedom of opinion and expression - Everyone shall have the right to hold opinions without interference - Article 20 states that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Freedom of speech is a core human right as: - it is critical to the search for truth (everyone can learn from an open society) - democracy is dependent on different ideas and opinions - elections and representative governments would have no meaning without clear communication of policies, robust debates, criticisms and questioning Free speech is not explicitly protected in Australia in our Constitution or through legislation Press freedom (the right of our media to report freely on issues) is not even fully protected Racial Discrimination Act 1975 (Cth) protects against racial hatred and other forms of discrimination Freedom of speech is respected in Australia. However, Australia does not expressly recognise the right in either our Constitution or our statutes Instead, the principle is found in a mix of common law principles and an implied freedom of political communication that the High Court identified The liberty of individuals to engage in free speech has been limited by the overriding responsibilities in the public interest to ensure national security. The law limits free speech in the following areas: inciting racial hatred - discrimination national security - intellectual property laws defamation - censorship perjury and contempt of court Democracies must find a balance between: the ability of individuals to exercise their rights to free expression of thoughts and ideas; and the responsibility of governments to preserve individual rights, maintain societal values and carry out their duties efficiently and keep their citizens safe Right to Protest and Freedom of Assembly: ICCPR - Article 21 - Freedom of Peaceful Assembly: The right of peaceful assembly shall be recognised The right extends to all gatherings for peaceful purposes, regardless of the degree of public support for the purpose of the gathering. However, the right only applies to peaceful assemblies, not to those involving violence. Freedom of assembly is a core human right as: - Free and open criticism of the law is an essential aspect of upholding accountability in government under the rule of law, democratic life, and influencing the direction of law reform. The right applies only to peaceful assemblies, not to those involving violence. There is no Commonwealth legislation that enshrines the right to freedom of assembly and association in all circumstances. Numerous laws effectively restrict freedom of assembly and association on grounds contained in the laws. For example, the Criminal Code criminalises associating with a member of a terrorist organisation and thereby providing support to it, if the person intends that the support assists the organisation. This restriction is applied on the grounds of national security and public safety and health. Freedom from Discrimination: • Australia is a signatory to a range of international treaties which explicitly prohibit discrimination and seek to promote equality. These treaties are based on principles of equality. ICERD CEDAW CROP CRPD - Discrimination happens when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics - Despite the current legal frameworks (international law, legislation, complaints processes), discrimination continues to exist in Australia - Where an individual's right to freedom from discrimination is breached, there are processes which may be followed (for example, making a complaint to the Australian Human Rights Commission, a court action). There are many groups who will also advocate to help promote rights of equality and freedom from discrimination. * Racial Discrimination Act 1975 (Cth): s18C = racial vilification is unlawful if it offends, humiliates or intimidates a person because of their race or ethnicity, however: s18D = exemptions are allowed for scientific inquiry, artistic works and fair comment on public interest matters that are done reasonably and in good faith Hence, it is difficult for someone to be charged with racial vilification

describe the main features of principal treaties, including the Convention Relating to the Status of Refugees 1951 and the Protocol Relating to the Status of Refugees 1967

Scope of the Refugee Crisis: *UNHCR reported that at the end of 2018, 70.8 million people forcibly displaced worldwide due to persecution, conflict of violence Convention Relating to the Status of Refugees 1951 and the Protocol Relating to the Status of Refugees 1967: *Refugees are among the most vulnerable people in the world (UNHCR, 2011) Refugees have rights and protections under international law - in Article 14 of the UDHR (1948) (1) Everyone has the right to seek and enjoy asylum from persecution in other countries (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or acts contrary to the UN - Declarations set standards/aspirations, but are not legally binding documents - lack detail about how articles should operate in practice - this exists in: *Convention Relating to the Status of Refugees 1951 The rise in displaced people increased significantly after WWII, so this convention was approved at a UN conference - it was entered into force in 1954 and was acceded by Australia that same year - binding upon signatory States as international law UNHCR states convention provides comprehensive codification of rights of refugees at international level - it lays down the minimum standards for refugee treatment - Declaration provides the right of asylum, but Convention defines whom a refugee is refugees' rights and responsibilities, and the legal obligations of States relating to the treatment and protection of refugees It is both a statue and rights-based instrument, meaning it makes refugees a special category of persons that need assistance, and it gives them identified specific rights eg. the principle of nonrefoulement = requirement on countries to not send refugees back to a place where they will be at risk of persecution *Preamble: Considering the principle that human beings shall enjoy fundamental rights and freedoms without discrimination Considering the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms Considering that the grant of asylum may place unduly heavy burdens on certain countries and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot, therefore, be achieved without international co-operation Expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States Noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective coordination of measures taken to deal with this problem will depend upon the cooperation of States with the High Commissioner - Article 1: Definition of "refugee" Has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it - States shall: Respect a refugee's personal status and their associated rights (art.12) Provide free access to courts (art.16) Provide travel documents (art.28) Provide the possibility of assimilation and naturalisation (art.34) Cooperate with the UNHCR (art.35) - States shall not: Discriminate against refugees (art.3) Impose penalties on refugees who entered illegally in search of asylum if they present themselves without delay (art.31) Expel refugees (art.32) Forcibly return refugees (art.33) - Refugees shall be treated at least like nationals or non-nationals in areas of: Freedom to practice their religion (art.4) Elementary education (art.22) Public relief and assistance (art.23) Right to work (art.17) Right to housing (art.21) *Protocol Relating to the Status of Refugees 1967: The 1951 convention restricted refugee status to those who had become displaced "as a result of events occurring before 1st January 1951" - it's one amendment in the form of the protocol, which was acceded by AUS in 1973, removed reference to time and location so the convention now provides universal coverage - enhanced scope *The 1951 Convention and 1967 Protocol in Australian Law: Australia has a long history of accepting refugees for resettlement - since 1945 over 800,000 refugees have settled in AUS People seeking to settle apply for one of two programs: Migration Program for skilled and family migrants Humanitarian Program for refugees Two components: 1. Offshore resettlement application (occurs before arriving in AUS) 2. Onshore protection application (process occurs when a person is held in detention either in AUS or off-shore) Refugee and humanitarian entrants offshore have increased over time, protection visas onshore have decreased Australia had the second-highest number of refugee resettlements in 2017 behind Canada *Migration Act 1958 (Cth): Principle Act applying to refugees in Australia - AUS incorporating international law into domestic law allows people to access these rights and allows courts to assist people to enforce rights if necessary Issue - failure to incorporate international agreements into AUS law does not create rights in domestic law - making it difficult for courts to decide AUS is in breach of international obligations if an Act is valid or overrule a decision made by another court Since 1992 - AUS has had a system of mandatory detention where asylum seekers and refugees are kept in detention until their claim is investigated and processed Migration Act s178 - non-citizen must be kept in immigration detention unless they leave AUS or are granted a visa (Keating Government - "only intended to be an interim measure") 2001 - Pacific Solution from 'Tampa Crisis' (Australia refused rescued asylum seeker ship to land on Christmas Island) - established Offshore Processing Centres on Nauru and Manus Island pursuant to s189AB Eg. Plaintiff S156/2013 v Minister for Immigration and Border Protection & Anor [2014] HCA 22 The unanimous decision of HCA that s198AB and 198AD are valid under alien powers of s51(xix) of Constitution - High Court cannot overrule constitutional law, regardless of whether law breaches international treaties Detention centres - Human Rights Commission states "the conditions for people in immigration detention, and the manner in which they are treated while in detention should comply with human rights obligations". AUS refugee policies, laws and processes remain a contentious issue as some believe we are breaching our international human rights obligations UNHCR (Michelle Bachelet) and Director of Legal Advocacy at Human Rights Law Centre (Katie Robertson) - "blatant abuse of refugees" and "cruel, inhumane and degrading conditions on Nauru and Manus Island" - "concerns continue to fall on deaf ears"

describe the main features of international law developed from the International Bill of Human Rights, consisting of the International Covenant on Civil and Political Rights (ICCPR)

The International Bill of Human Rights has two parts: 1. Universal Declaration of Human Rights (1948) (not legally binding) 2. ICCPR and ICESCR (legally binding) - Civil rights = deal with the rights and liberties of all peoples - Political rights = rights relating to citizenship - ICCPR is a multilateral treaty adopted by UN General Assembly in 1966 - 173 states are parties Australia became a signatory in 1980, reserved certain rights from some provisions eg. does not agree that juvenile offenders must not be held in custody in adult prisons Six parts, preamble and conclusion - Preamble: The ICCPR recognises the inherent dignity of each individual and undertakes to promote conditions within states to allow the enjoyment of civil and political rights. - It recognises that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant. - Countries that have ratified the Covenant are obligated to protect and preserve basic human rights and are compelled to take administrative, judicial, and legislative measures in order to protect the rights enshrined in the treaty and to provide an effective remedy Part 1, Article 1: All peoples have the right to self-determination Part 2, Articles 2-5: Parties need to legislate to give effect to the provisions within the ICCPR, recognising that everyone should be treated equally Part 3, Articles 6-27: Substantive (core) ICCPR provisions Article 6 - Right to life Article 7 - Freedom from torture Article 8 - Right to not be enslaved Article 9 - Right to liberty and security of the person Article 10 - Rights of detainees Article 11 - Right to not be imprisoned merely on the ground of inability to fulfil a contractual obligation Article 12 - Freedom of movement and choice of residence for lawful residents Article 13 - Rights of aliens Article 14 - Equality before the courts and tribunals; Right to a fair trial Article 15 - No one can be guilty of an act of a criminal offence that did not constitute a criminal offence Article 16 - Right to recognition as a person before the law Article 17 - Freedom from arbitrary or unlawful interference Article 18 - Right to freedom of thought, conscience and religion Article 19 - Right to hold opinions without interference Article 20 - Propaganda for war shall be prohibited by law Article 21 - Right of peaceful assembly Article 22 - Right to freedom of association with others Article 23 - Right to marry Article 24 - Children's rights Article 25 - Right to political participation Article 26 - Equality before the law Article 27 - Minority protection Part 4, Articles 28-45: Establishes Human Rights Committee which monitors ICCPR Part 4, Articles 46-47: ICCPR shall not interfere with the operation of UN Part 4, Articles 48-53: Concerns ratification, when the ICCPR is in force, and amendments - Optional Protocol to the International Covenant on Civil and Political Rights (1966): Allows UN Human Rights Committee to hear complainants who allege Government has violated civil/political rights, but findings are not enforceable - Second Optional Protocol to the International Covenant on Civil and Political Rights (1990): - Eliminate the death penalty - ICCPR in Australian Law: Domestic legislation - Commonwealth of Australia Constitution Act 1901 (Cth) contains some civil/political rights: Citizens right to vote (s7, s24) Trial by jury for indictable offences (s80) Human Rights Act 2019 (Qld): Right to life (s16) Freedom of movement (s19) Freedom of expression (s21) - ICCPR is not expressly included in Australia's domestic law as a single piece of legislation - UN Human Rights Committee has commented on this failure of implementation, stating Australia has not yet adopted a comprehensive legal framework for the protection of Covenant rights at the Federal level eg. Australia does not have a 'Bill of Rights *Human Rights Committee: A body of 18 independent experts that monitor the implementation of the ICCPR by State parties All parties to the treaty are obligated to submit regular reports to the Committee on how effectively their citizen's civil and political rights are being protected/whether domestic law has been implemented to give legal effect to ICCPR (Article 40); it is a mechanism for holding nations accountable for violations of legal obligations

explain the legal processes available to citizens for resolving human rights complaints in Australia, including protesting, lobbying, lodging complaints, tribunal/court actions

When governments breach their human rights obligations, citizens are able to utilise many different legal processes to resolve complaints. Protesting: a public expression of objection, disapproval or dissent towards an idea or action, typically a political one. Lobbying: the act of lawfully attempting to influence the actions, policies, or decisions of government officials, most often legislators or members of regulatory agencies. Court action: where a dispute between opposing parties may be resolved by a court. Tribunal: a body established to settle certain types of dispute. Protesting A protest can be an individual or a coordinated public expression of objection toward an idea or action, typically a political one. They are often organised online or through social media to ensure all members of a particular group are able to assemble in a public area. * Peaceful Assembly Act 1992 (Qld) - Anti-vaccine and anti-lockdown protests across in Australia 2021 to exercise their right to protest, not wear a mask and not be mandated to receive the vaccine - BLM protests in 2020 to exercise their right to equality under the law and freedom from unlawful police brutality Strengths - held in public places for all to access - regulated to protect public safety and maintain public order - draws international and domestic attention Limitations - any public protest must be authorised by the police or local council (notice of intention and official approval) - protests can turn violent (riots) Lobbying Attempts to influence the decision-making of a government or opposition representative in the exercise of their official functions on behalf of a third party, for a fee or other reward - Queensland Law Society - advocates/lobbies * seeks to engage with the general public to provide knowledge and leadership regarding the law Strengths - official lobbyists are able to express the views of people who couldn't otherwise do so due to cost - strategies to co-opt or realign policy to influence the government and the public - strengthen rights of minorities Limitations - lobbyists can rely on morally dubious 'favour for a favour' arrangements - big corporations may hold too much influence - can be expensive - can be inefficient - can lead to flawed political decisions - may fail Complaint to AHRC A complaint must be in writing. An investigation into the complaint will be conducted, with the possibility to ask for more information. The conciliation process begins where a 'conciliation conference' takes place. Complaints will be resolved in many ways. E.g apology, policy change or compensation. - Under the Australian Human Rights Commission Act, the Commission can also investigate and resolve complaints of discrimination, harassment and bullying in employment based on a person's criminal record, trade union activity, political opinion, religion or social origin *McBain v Victoria [2000] FCA 1009 - Complaintant was denied IVF treatment as she wasn't married or in a defacto relationship - Victoria legislation was inconsistent with the federal act (Sex Discrimination Act) - entitled to receive the procedure Strengths - AHRC or QHRC - investigates and conciliates complaints about discrimination and breaches of human rights - informal and flexible approach - face to face consultations or over the phone - deal with matters that are not covered by federal human rights and discrimination law - no charge to lodge a complaint Limitations - no practically enforceable time limit on the making of a complaint to the AHRC - the president can terminate a complaint after 12 months Tribunal / Court Action Courts and tribunals have an important role to play under the Act, including through: • protecting human rights for people using courts and tribunals • interpreting laws to check if they are compatible with human rights • making decisions about legal disputes in human rights cases. Courts and tribunals must enforce human rights in court and tribunal proceedings. For example: • right to recognition and equality before the law (section 15 of the Act) • right to a fair hearing (section 31 of the Act) • rights in criminal proceedings (section 32 of the Act). Courts and tribunals protect these rights by making sure everyone can access the legal system. Strengths - relevant Parliament and State Acts create provisions about how a breach in the specific human right can be compensated - permanent solution (sets precedent) - can review a broad range of government decisions, including social security, taxation, migration, freedom of information etc. Limitations - often used as a last resort (provisions often encourage the use of ADR before complaint to a court) - Tribunals have limited jurisdiction - Matters brought before courts are costly and time-consuming, and clog the court system