Protecting and Enforcing HR Flashcards Preview

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Flashcards in Protecting and Enforcing HR Deck (101)
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61

Example of Domestic HR NGO

  • Asylum seeker centre
  • Human Rights law centre
  • Minderoo Foundation (World slavery

62

Role of Media in protecting HR

  • Name and Shame
  • Inform
  • Lobby

63

Example of Media infleuncing HR

4 Corners 'Australia's Shame' July 2016

64

What are main sources of human rights in Australian law

  • The Australian Constitution
  • Common law
  • Statute law (commonwealth, state, territory)

65

What treaty system is Australia

Dualist, which means that treaties are implemented through enacting legislation that echoes the words of the treaties

66

What is the treaty process

  1. Signature
  2. Ratification
  3. Accession/implementation (enacted into domestic law)

67

What is ratification

A binding agreement that Australia will implement the treaty in a certain time frame

68

what is the signature process

Agreement in principal but not legally binding

69

How does constitution protect human rights

  • Lays down system of government i.e. separation of powers and division of powers
  • It is source of some specific human rights (express and implied)

70

What are three arms of government

  1. Legislature
  2. Executive
  3. Judiciary

71

What does the s51 External Afairs power do

s51 of Constitution outlines the external affairs powers which give the executive arm of government (DFAT) the power to enter into treaties

72

What is division of powers

Separation of federal and state parliament

73

Whats an express right

Explicitly stated

74

What are the express rights in the constitution

  • Freedom of religion (s116)
  • Right to vote in Commonwealth elections (s41)
  • Right to a trial by jury in federal indictable cases (s80)
  • Right to ‘just terms’ where the Commonwealth compulsorily acquires property (s51(xxxi))

75

What are implied rights

Not explicitly stated

76

What's an example of an implied right 

  • Right to freedom of speech
  • Lange v Australian Broadcasting Corporation (1997)
  • The High Court held that the Constitution contains an implied right to freedom of political communication

77

Example of fundamental right protected by common law

  • Presumption of innocence 
  • Right to a fair trial (Dietrich v The Queen 1992)

78

How is common law ineffective in protecting HR

It can be overruled by Statute

79

Why cant common law be relied upon to develop new rights

It only applies on a case by case basis

80

What limits statute law in protecting HR

  • It can be overruled by new statute

81

Example of statute law protecting HR

  • Racial Discrimination Act 1975 (Cth)
  • Sex Discrimination Act 1984 (Cth)
  • Age Discrimination Act 2004 (Cth)
  • Disability Discrimination Act 1992 (Cth)
  • Australian Human Rights Commission Act 1986 (Cth)

82

What are most important HR Courts/Tribunals

  • Australian Human Rights Commission
  • High Court

83

What is ICC geogrpahic jurisdiction

  • Prosecute individuals who are citizens of a nation party to Rome Statute 
  • Prosecute individuals who committ crimes in a country which is party to Rome Statute
  • Prosecute cases that have been recommended to it by UNSC
  • Prosecute cases recommended by an ICC prosecutor

84

What are main downsides to ICC

  • Very few cases make it before the court and it is a difficult and long process to establish guilt e.g.Thomas Lubanga Case 2012 Warlord Thomas Lubanga first person convicted by ICC. Case began Jan 2009 ended in March2012, sentenced to 14 years in prison for crime of using child soldiers in Congo war. (Resource ineffcient)
  • Been criticised for focusing too heavily on HR abuses in African nations
  • State soverignty allows nations to withdraw or not comply Guardian art 2017 ‘Burundi becomes first nation to leave ICC 'Burundi ICC withdrawl major loss to victims' HRW Oct 2016 Philipenes withdrew March 2019
  • Former Sudanese President Omar al-Bashir has yet to face charges for mass atrocity crimes committed in 2003, due to govt lack of compliance
  • UNSC recommendation strongly influences which states are prosecuted BBC 'Russia and China veto UN move to refer Syria to ICC' May 2014

85

What is main UNHRC(ommitee) case

  • Toonen v Australia 1994

86

Timeline of Toonen case

  • Toonen lodged complaint to UNHRC(ommittee) that Tasmanian laws criminalised consensual sex between two adult males and argued it breached human right to privacy violating Art 17 ICCPR and was discriminatory as homosexual men were unequal before the law violating Art 26 ICCPR.
  • Toonen v Australia 1994 (UNHRC). UNHRC found in favour of Toonen and ordered Australia to respond and repeal the law. Views were published i.e. name and shame
  • Tas refused so Federal Government forced to enact Human Rights (Sexual Conduct) Act 1994 (Cth) legalised consenting sexual activity for adults within Australia
  • Tas refused and in 1997 Rodney Croome took the matter to the High Court Croome v Tasmania (1997)
  • High Court ruled law was inconsistent with ICCPR and Federal Law Tas was forced to repeal. S 109 of Constitution rules when state and federal laws conflict federal overrides.

87

When did Red Cross originate

1863

88

What conevntions protect Red Cross and outline their role

Geneva Conventions first convention 1864

89

How are Geneva Conventions prosecuted

ICC

90

What is role of Amnesty Intl

  • Undertakes detailed research and determined campaigning, to help fight abuses of human rights worldwide.
  • Name and shames and campaigns for law reform surrounding HR