Table of Contents
The Nature and Development of Rights
- Universal: Apply to all people regardless of status, race and gender.
- Inalienable: They cannot be taken away or given up.
- Inherent: People have human rights because they are human beings.
- Indivisible: All people are entitled to all rights and no one is better than another.
- Interdependent: People’s enjoyment of one human right is affected by their enjoyment of all others
- Soft law: don’t need to abide (e.g. traditions and precedents)
- Hard law: have to abide
Importance of Universal Human Rights
Abolition of slavery:
Emancipation Act (1833), abolished slavery throughout British 🇬🇧 colonies. The motive included humane and liberal principles for anti-slavery
- Examples: Black market slave trade, Human trafficking, Sex slaves
Laws criminalising human trafficking and slavery are contained within Divisions 270 and 271 of the Commonwealth Criminal Code Act 1995 (Criminal Code).
American 🇺🇸 Civil War
- Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Slavery Act)
Article 4: No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited.
- Abolition of slavery - went against religion.
- UN office on Drugs and crime → 2.5 million people worldwide are at any given time entrapped, transported, exploited → Australia enacting domestic legislation
- Wei Tang was found guilty of possessing and using a slave, sentenced to 10 years in prison.
Trade Unionism and Labour Rights
Under laissez-faire princples, enterprise bargaining wasn’t an option.
Union meant everyone gets the same. Employers didn’t want to lose profits.
Historically employers were free to exploit workers for economic gain.
18th century Britain 🇬🇧 - Industrial revolution led to the emergence of unions aiming to protect the rights of workers
UDHR: Article 23(1): Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protect against employment
Employers were lobbying the government - government listened as employers had money - rise of Labour party
Work choices - Howard government promised the rights of workers
Fair Work Act 2009: Governs the employee/employer relationship in Australia.
- Provides safety net of minimum entitlements, enables flexible working hours, fairness at work and prevent discrimination against employees
An apprentice hairdresser claimed she was verbally abused by her employer after seeking time off to attend an antenatal doctor’s appointment, and that this abuse caused her to resign.
Prior to her announcing the pregnancy, her employer had twice commented that staff who became pregnant would be sacked.
She was awarded 5000AUD compensation plus 562AUD interest, with a further 5373AUD plus 537AUD interest for economic loss, as well as costs.
Only universal male suffrage existed- E.g. NSW Legislative Council 1842 allowed wealthy men to vote 21 & over
Aboriginal men and women were excluded from voting in Commonwealth elections
Women’s voting rights for the federal parliament were won in 1902
● The first jurisdiction was South Australia in 1894 in the Constitutional Amendment (Adult Suffrage) Act
Aboriginal men & women are allowed to vote under the Commonwealth Electoral Act 1918 when amended in 1962
In China 🇨🇳 , competition is unfair: it’s illegal to make political parties that contest elections against the Communist Party.
Women were only given the right to vote in Kuwait in 2005, women in Saudi Arabia 🇸🇦 have the right to vote 2015
Article 21 - (2) Everyone has the right of equal access to public service in his country
Right to Education
- People of all social classes recognised that education offered a means of ensuring the future for their children. Limited to particular groups and classes based on worth in society.
UDHR Article 26(1): Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory.
Domestic: Education is a free compulsory right. Public schools are free to attend for Australian citizens and permanent residents as a result of Government funding.
The Australian Education Act 2013 (Cth): Government’s responsibility to provide funding for government and non government schools. Primary education ‘compulsory, available and free to all’.
The New South Wales Education Reform Act 1990: Education is the primary responsibility of the child’s parents
In the 1990s genocide broke out in Rwanda :ran , and African and Asian countries strived for independence in the 1960s
Decolonisation led to the development of states that were artificial creations.
These states were usually determined by colonial power and often cut pre-existing ethnic or cultural boundaries.
Eddie Mabo challenged the Queensland Government’s claim that, under the policy of terra nullius, Indigenous customary law was not applicable or enforceable.
The High Court ruled that Indigenous law was to be recognised by Australian courts, although existing post-colonial laws took precedence where they conflicted with Aboriginal laws.
This system is called radical title, and is one of the three forms of post-colonial custodial recognition:
- Terra Nullius is the policy of not recognising indigenous law in the national legal system (e.g. colonial-era Australia🇦🇺 ).
- Native Title is the policy of considering indigenous law above federal/state law (e.g. Indian reservations in the United States 🇺🇸).
- Radical/Alloidal Title is the policy of considering the current dominant power’s laws above indigenous law (e.g. most former British 🇬🇧 colonies).
- Article 1 of the Charter of the United Nations refers to the “principle of equal rights and the self-determination of peoples”.
- This was confirmed by the UN General Assembly through the Declaration of Friendly Relations (1970)
- The 1954 Geneva Accords ended French occupation of Indochina, resulting in North and South Vietnam 🇻🇳
Atmospheric pollution, Depletion of ozone layer, Global warming, Marine pollution, Nuclear pollution
NGO’s - Green Army: Provides a six-month programme for 17–24 year olds to train and work in the environment. Community organisations, Landcare groups, environment groups, local councils apply to host a Green Army project.
Paris agreement → to stop global warming
Kyoto Protocol: an international treaty extending the 1992 United Nations Framework Convention on Climate Change
Environment Protection Act 1974: An Act to make provision for Protection of the Environment in relation to Projects and Decisions of, or under the control of, the Australian Government, and for related purposes.
Article 23 - All people shall have the right to a general satisfactory environmental favourable to their development
Stockholm Declaration (1972) & the Rio Declaration (1992) - IMP international environmental agreements that move the world towards a more sustainable future
The charter of the United Nations (1945) identified peace as one of its main aims.
Charter of UN (1945) said war was only to be used on authorisation.
Non-military “interventions” can take place - Security Council impose ssanctions (interruption of economic relations and other means of communication severing diplomatic relations to deplete countries) → E.g. Sanctions imposed on Iraq 🇮🇶
1984 - non-binding resolution of United Nations General Assembly asserted rights of people to peace. The declaration recognised nuclear war was a danger to humanity and international disputes should be resolved by peaceful means under Article 2 (4) of United Nations Charter
Article 2 → Obligation of states to “respect, implement and promote” key principles for human dignity.
AUS: Age Discrimination Act 2004, Australian Human Rights Commission Act 1986, Disability Discrimination Act 1992
Formal Statements of Human Rights
- The Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and International Covenant on Economic, Social, and Cultural Rights are the de facto statements on human rights from the UN.
- These 3 documents are based on international customary laws, the general consensus by national governments on what should be considered lawful, as well as international treaties, agreements which bind the signing nations to certain behaviours.
- Article 1 of the UN Charter requires the organisation to promote human rights and fundamental freedoms for all regardless age, sex, language or religion.
- Article 55 states the UN shall promote respect for and observance of human rights.
Major Human Rights Documents and their Contributions
Soft Law - UDHR
- The Universal Declaration of Human Rights was developed as a response to the unprecedented barbarity of World War II.
- It declares the promotion of universal respect, the observance of fundamental rights, and the inherent dignity of a human.
- There are 30 articles, covering different areas of human rights.
- For example, article 1 asserts the right of all people to freedom, equality, and dignity.
- Article 2 prohibits discrimination based on race, sex, language, religion, sexuality, orientation, etc.
- Articles 3-12 outline civil and political rights, such as the right to participate in government, the right to life, liberty, and freedom, the right to a fair trial, etc.
- Articles 22-27 detail economic, social, and cultural rights, such as the right to work and unionise.
- It is important to note that the UDHR is not legally binding. This (and most UN documents) serve as a guideline, or recommendation, for governments to base their policies on.
Hard Law - ICCPR
- The International Covenant on Civil and Political Rights is designed to protect people from the actions of oppressive governments.
- The covenant was adopted in 1966, and hase been in force since 1976.
- The document protects individuals from arbitrary and totalitarian exercises of power by the state, in accordance with the freedoms provided by the UDHR.
- Despite 173 countries being party to the covenant, the rights outlined by it are broken often.
Hard Law - ICESCR
- The international Covenant on Economic, Social, and Cultural rights recognises that national and global resources are finite.
- Article 2 requires all states to take steps, through international economic and technical cooperation and assistance , towards achieving ‘progressively the full realisation of the rights recognised in the present convention’
- The convention also asserts non-discrimination, stated in much the same terms as the UDHR
- It places responsibilities on all individuals to strive to promote and achieve these rights
- Key features include: Equal rights for men and women (article 3), Right to social security (article 9), Right to the highest standard of physical and mental health (article)
- All states parties are required to report on the measures adopted to being about the fulfillment of these rights
Promoting and Enforcing Human Rights
- The authority of a nation state to govern itself without international interference.
The UN Charter
- International enforcement of human rights seems to undermine state sovereignty, involves international interference in domestic affairs.
- Balance must be achieved between respecting state sovereignty and ensuring human rights standards are adhered to.
- Responsibility to Protect is an emerging philosophy and UNSC framework that sovereignty is secondary to protecting the rights of individuals.
The United Nations
- Just like many countries, the UN is separated into a legislative, judicial, and executive branch.
UN General Assembly
- Composed of 1 representative from each member state (similar to a legislative branch), and is the primary UN forum for discussing civil rights issues.
- Contains various subsidiary bodies, such as the UN Human rights council.
UN Security Council
- Maintains international peace and security.
- Can pass legally binding resolutions on Member states (e.g. sanctions).
- Approve military intervention or political sanctions to protect human rights and encourage compliance with human rights standards.
- Five permanent members (China, USA, UK, Russia and France), which are accompanied by 10 members who are elected for a two year term by the General Assembly.
International Court of Justice
- Judicial component of the UN.
- Judges international civil disputes, and advises on human rights law.
- Works in conjunction with the International Criminal Court to prosecute crimes against humanity.
- Can be considered the civil component of the international judicial system (ICC would be the criminal component).
Office of the High Commissioner for Human Rights
- Established in 1993 to oversee the Human Rights Council
- Offers support and expertise to human rights agencies and monitoring bodies.
- Conducts the Universal Periodic Review of international compliance with the ICCPR and ICESCR.
Human Rights Council
- Subsidiary of the General Assembly
- Responsible for the international promotion of human rights
- Makes recommendations to the UNGA and UNSC regarding human rights crises
Other Intergovernmental Organisations
- European Union, North Atlantic Treaty Organisation (NATO), Commonwealth of Nations.
Courts and Tribunals
International Criminal Court
- Prosecutes international criminals
- Supersedes the temporary tribunals that previously performed this task (e.g. International Criminal Tribunal for Rwanda)
International Court of Justice
- Provides advisory opinions to the UNGA regarding international law
- Jurisdiction is limited, preventing effective enforcements.
- Additionally, the ICJ is unable to hear private human rights complaints.
- Treaty bodies which monitor compliance with major human rights treaties
- Consider individual complaints and reports where required
- Publish opinions and suggestions on treaty compliance
- Organise forums on relevant themes
- Decisions not enforceable but highly influential
- Human Rights Committee: Assesses compliance with international bills of rights
- Committee on the Rights of the Child
- Committee on the Elimination of Discrimination Against Women
- Committee on Economic, Social and Cultural Rights
- Operate independently of governments
- Has become increasingly common as the concept of fundamental rights develops
- Examples include the Red Cross and Amnesty International
- Raises public awareness of human rights responsibilities and abuses
- Rallies public and government action similarly to NGO’s
- Increasing role of media ensures full coverage of human rights issues
Human Rights in Australian Law
- The sign-ratify-enforce process incorporates international law into a dualist legal system
- Commonwealth will pass laws reflective of signed treaties and enforce them in the country
- Convention on the Elimination of All Forms of Discrimination Against Women: Sex Discrimination Act 1984 (Cth).
- Rome Statute: International Criminal Court Act 2002 (Cth).
Effectiveness of Australian Responses to Human Rights issues
Divides powers between state and federal governments
Grants external affairs power to Commonwealth (s 51)
Treaty obligations are imposed on all state jurisdictions
Allows federal legislative protection of Human Rights
Separates Westminster system of government into arms of judiciary, executive and legislative
Checks and balances system acts as safeguard against abuses of power which could jeopardize individual rights
Judiciary investigates validity of legislation in terms of human rights and constitutional obligations
Express and Implied Rights
- Freedom of Religion
- Freedom to Vote
- Right to Trial by Jury
- Freedom of Political Communication
- Develops independent of legislature, provides socially realistic approach to human rights breaches
- Brings to light new legal concerns to do with inadequacies in Australian human rights legislation
- Fails to provide real, concrete protection of individual freedom
- Main protection of human rights in Australia
- Most enforceable and wide reaching
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
- AHRC Act 1986
### Courts and Tribunals
Australian Human Rights Commission
Receives and investigates human rights complaints
Promotes awareness of domestic and international human rights issues
Submits reports to parliament concerning improvement of HR standards
Plays role in the ‘Charter of Rights’ debate
High Court of Australia
- Landmark HR cases include the Toonen Case, and the Mabo Case
- Constitutional interpretation proves a pivotal tool of HR enforcement
Arguments for and against an Australian Charter of Rights
|Extremely high community support||Current HR protection is considered adequate|
|Re-addressing the inadequacy of existing human rights protections||Undermines the tradition of parliamentary sovereignty, instead transferring legislative power to unelected judges (violates Separation of Powers)|
|Reflects basic national values||No guarantee of better protections|
|Improves the quality and accountability of government||Excessive and costly litigation|
|Contributes to a culture of respect for human rights||Arguments that democratic institutions offer better protections|
|Improves international standing||High short-term economic cost|
|Brings Australia into line with other democracies||Unnecessarily legalisation - most things are enforced through OHS/statutory law.|
|Produces economic benefits|