VCE UNIT 2: AoS 3 Legal

Identify four main ways rights are protected in the USA

- Bill of Rights - Structure of the Constitution - Implied rights - International documents

Identify the three main ways rights are protected in the Australian Constitution

- Express rights - Implied rights - Rights in the Constitution's structure

Outline three potential reforms to the way rights are protected in Australia

- Introducing a national charter or bill of rights - Amending legislation and systems to provide increased protection to minority groups - Increasing the availability of legal aid and assistance

'Australia's approach to rights protection is perfect'

- It is not perfect. - Does not take account the rights of a particular group, thus we need to sign and ratify treaties in order to account for minority groups. - The Constitution protects five narrow express rights, and must make it up through ratification of treaties + statute law. - Increased legal aid and assistance is required in order to protect individuals that have had their rights infringed. - Common law can establish rights and interpret implied rights from the Constitution.

Identify four rights protected by the Charter

- Right to be recognised and treated equally before the law - Right to life and to not have your life taken without a lawful reason - Protection from cruel treatment or punishment, including torture and medical treatment without consent - Freedom from forced work or slavery

Discuss possible conflicting attitudes in relation to this case.

At the time, mining and pastoral industries and conservative politicians reacted angrily to the High Court's 1992 decision and urged the Cth Government to overturn the legislation. Individuals with a particular upbringing (i.e. working class, lack of education) saw the changes to Aboriginal land rights extreme. Nowadays, the attitude against indigenous people have softened remarkably.

Describe the facts and issues central to this case, including the rights in question.

Before colonisation, Indigenous Australians occupied Australia for a minimum of 75000 years before the first British Colony was established. After colonisation, the British claimed sovereignty over Australia and established a colony, applying the doctrine of terra nullius to Australia, which was then considered 'empty land'. Mabo would challenge this doctrine of terra nullius to reclaim the rights to land ownership for those involved in the test case.

Evaluate the effectiveness of the Australian Constitution in protecting the rights of Australians.

Determining whether it is effective Strengths: - Express rights cannot be changed unless through a referendum; that is, with the support of the community. - The implied freedom of political communication shows that rights can be interpreted and clarified by the High Court. Weaknesses: - It is expensive and time-consuming to take a case to the High Court to challenge a statute that breaches a right. - Very few rights are expressly protected under the Constitution.

Outline the role of the relevant individual in taking this case to court.

Eddie Mabo was the lead plaintiff that took action against the Queensland and Commonwealth Government through a test case to determine the legal rights of the Indigenous Meriam people.

Outline one statute law which protects rights in Australia

Freedom of Information Act 1982 (Vic) protects the right of privacy.

Use examples to distinguish between implied rights and expressed rights

In Australia, the freedom of political communication is an implied right, that is not expressly stated in the Australian Constitution but is considered to exist through interpretation of the High Court. Compared to the freedom of religion, which is expressly stated in the Constitution.

Evaluate the effectiveness of common law in protecting the rights of Australians

Strengths: - Courts and judges are able to make decisions to establish rights in areas where the parliament has not. - Courts are able to highlight to parliament gaps in the law that protect rights, which may encourage parliament to change the law to further protect rights. Weaknesses: - Parliament, as the supreme law-making body, can abrogate common law rights. - Judges are limited in applying the law to the case that is before them. They cannot simply 'create rights' in any dispute.

Explain the difference between signing a treaty and ratifying a treaty

Signing a treaty means that the nation is demonstrating the intent to adopt the treaty and incorporate it into their law, however, ratifying the treaty involves passing legislation to approve and adopt the various rights outlined within the treaty, in turn, being legally bound to uphold the rights.

Compare three similarities and three differences between the approaches taken by Australia and the USA in protecting rights

Similarities: - Both countries have adopted various international treaties to uphold human rights. - Both countries have common law systems where judges can resolve disputes over an alleged breach of rights and set precedents that must be followed by lower courts in cases where the facts are similar. - The highest court has the ability to interpret the Constitution and principles within its text and structure. Differences: - The Australian Constitution only includes five relatively limited express rights, compared to the US Constitution where it protects a broad range of rights that are not mentioned. - The change in express rights are more difficult in the US than Australia due to structural difficulties. - The US Constitution has a bill of rights, whereas we do not have one.

Outline one common law which protects rights in Australia

Within the Dietrich v The Queen, a common law right was established (through its judgment) that an individual who is charged with a serious offence has a right to legal representation.

Evaluate the effectiveness of treaties in protecting the rights of Australians

Strengths: - Infringements of rights within treaties can be enforced by international bodies. - Allows for the process of implementing new rights easier, serving as a base for ratifying the treaty into national legislation. Weaknesses: - Signing a treaty does not guarantee that the protection of particular rights until ratified. - There is no global court or international legal system to monitor and impose sanctions or penalties on nations that might infringe an international treaty of convention.

Evaluate the effectiveness of statute law in protecting the rights of Australians

Strengths: - Parliament can amend statutes to incorporate further rights, particularly as society changes. - Parliament does have the ability to pass laws quickly if there is a need to quickly protect additional rights. Weaknesses: - Parliament can include limitations or restrictions in statutes so protected rights are not always absolute. - The rights protected in statute law are not as well protected as rights contained in a constitution, as constitutional rights can only be altered or removed with public approval.

Outline one treaty which protects the rights in Australia

The International Covenant on Civil and Political Rights (ICCPR) aims to commit parties to protect the civil and political rights of individuals.

Evaluate the effectiveness of the Victorian Charter of Human Rights and Responsibilities in protecting the rights of Australians.

The effectiveness is determined by: Strengths: - Parliament can amend statutes and charters to incorporate further rights, particularly as society changes - Statutes and charters are often detailed and precise, and protect human rights specifically, rather than being implied Weaknesses: - Because parliament is the supreme law-making body, it can amend statutes and charters, so rights may become limited or no longer exist - Parliament can include limitations or restrictions in statutes or charters so protected rights are not always absolute

Explain the laws that applied to this case.

The existing law in Australia was based on the principle of terra nullius, which established Australia as officially 'empty land'. This would result in Indigenous Australians not being recognised as traditional owners of the land, thus have no property rights.

Explain the outcome of this case and its impact of the right of individuals and on the legal system.

The outcome of this case resulted in the system of real property law accommodating the native title, where it may be extinguished by the Crown, Indigenous people or a number of other ways. In addition to, the rejection of terra nullius would result in legislation being passed to clarify the situation and protect property interests. This would lead to land ownership rights that is recognised by the law, through the Native Title Act 1993 (Cth).

Explain the purpose of the Charter

The purpose of a Charter is to sets out the basic rights, freedoms and responsibilities of all people in Victoria.

Define 'structural protection' of rights

The structural protection of rights that the Commonwealth has established mechanisms and principles that indirectly protect the people's rights.