U2 - AoS3 (LS)

• - The Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948
• - The preamble means that to prevent people from resorting to rebellion due to oppression or tyranny, it is essential that human rights are protected through laws.
• --- This ensures that individuals don’t feel forced to take extreme measures to defend their rights when faced with injustice, helping to maintain order and peace in society.

• First 6 Rights:
• 1. Right to be Born Free & Equal
• - We are all born free. We all have our own thoughts and ideas. We should all be treated in the same way.

• 2. Entitled to rights and freedoms without discrimination.
• - rights in declaration belong to everybody

• 3. Everyone has the right to life, liberty and security of person.
• - No one shall be subjected to arbitrary arrest or detention.
• - No one shall be unlawfully deprived of his liberty

• 4. No one shall be held in slavery or servitude
• - slavery and the slave trade shall be prohibited in all their forms.

5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

• 6. Everyone has the right to recognition everywhere as a person before the law.
• - have equal rights to access services and to be treated fairly by the law

• Australia as a country does NOT have a Bill of Rights.
• - Of the States, Victoria: the Charter of Human Rights and Responsibilities Act 2006, and Queensland: Human Rights Act 2019.
• - Of the Territories, the ACT: Human Rights Act 2004.
• - The other States and Territories have legislation that deals with some aspects of human rights topics, but not a "full list" like a Bill of Rights provides.

HOWEVER, THIS DOES NOT MEAN THAT OUR RIGHTS NOT PROTECTED. It just means that the source of our different rights is not all protected in the same way.

• Overview of Rights in Australia:
• 3 main sources of human rights:
• - From the Australian Constitution
• - From common law - laws made by the courts through the doctrine of precedent
• - From statute laws - legislation passed down by the State, Territory and Federal Parliaments.

• Rights Protected by Aus. Constitution:
• - Some rights are "entrenched". This means they very hard to change because of the legal processes required to change them.
• - Some rights stated in Con. are entrenched as only way to change is through referendum, requiring a double majority. (8/45 in history)

• Express Rights:
• Generally accepted that there are 5 rights that are expressly stated the con. - express rights
• - the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;
• --- ensures Commonwealth pays fair and reasonable compensation for any property that it compulsorily acquires
• --- Also, obtain property for a purpose or area for which it has the power to make laws.

• - The right to a trial by jury for Commonwealth indictable offences
• --- ensures ppl charged with CW indictable (serious) offences (e.g., terrorism, people smuggling, importing illegal drugs) have a trial by jury.

• - Right for trade within the Commonwealth to be free
• ---  ensures trade and commerce between the states (interstate) are free

• - Commonwealth not to legislate in respect of religion - The right to freedom of religion
• --- provides citizens with a limited right to freedom of religion.
• --- Prohibits CW from making laws that establish a religion or ban people from practising their religion

• - Rights of residents in States - The right to not be discriminated against by the CW on the basis of the state where you reside
• --- Makes it unlawful for CW to discriminate against someone based on the state they live in

• Implied Rights:
• - High Court can also interpret Constitution to confirm that the meaning of the Con. contains rights. It can decide that the Constitution implies certain rights.

• Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106:
• - implied rights of freedom of political communication 
• - Political Broadcasts and Political Disclosures Act 1991 (Cth) was deemed unfair, and in breach of Con., as it breached sections 7 and 24 of the Con. which recognises that Aus. parliamentary system is based on representative government (members of senate and house of reps. "directly chosen" by ppl), which requires freedom of political comm.

- Reasoning: exists at all times, not just prior to an election. Moreover, this right is not a general right to free speech, but only a right to free communication relating to political issues.

• Structural Protections:
• - systems and mechanism contained within the structure and text of the con. that indirectly protects the rights of the Australian ppl
• - includes section 7 and 24 of con.
• --- states that members of Senate and House of Representatives in Cw Parliament must be "directly chosen" by the Aus. people.

• 7. The Senate
• - Senate shall be composed of senators for each state, directly chosen by ppl of state.
• 24. Con of House of Representatives
• - Shall be composed of members directly chosen by people of CW

- Interpreted by High Court to mean that Aus. citizens have the right to vote in Federal elections.

• Victorian Charter of Human Rights and Responsibilities:
• - Gov. Departments, policy makers of gov. departments, Local councils, and private companies must comply when they are doing the work of the government must 
• - It only applies to government/public authorities, or anyone doing the work of the government, where anyone else is not covered, e.g., small businesses.
• - For the Charter to be taken away, A bill will have to be passed, which turns into a law, where the Victorian Charter will be abolished
• Rights protected by legislation/statute law:
• - Aus. has been a signatory to a number of international treaties (agreements with other countries), including in relation to human rights issues.
• - Therefore, it has obligations to implement the terms of the treaties within its own borders (ie. actually make it law in Australia).
• - Some States and Territories have also chosen to pass their own legislation to protect human rights.
• - In Vic, the Victorian Equal Opportunity & Human Rights Commission is a complaints body that advocates for the protection of human rights.

• Statutes that protect human rights in Vic:
• - Charter of Human Rights and Responsibilities Act 2006
• --- Protects civil and political rights such as freedom of expression and protection from torture.
• - Equal Opportunity Act 2010
• --- Protects individuals from discrimination based on attributes like race, gender, and age.
• - Racial and Religious Tolerance Act 2001
• --- Protects individuals from vilification based on race or religion.

• Common Law that protect human rights in VIC:
• - The Right to Silence
• --- A person accused of committing a criminal offence does not need to answer any questions (other than providing name and address in situations), and does not need to provide evidence in court.
• - The Right to a Fair Trial
• --- A person who has been accused of a criminal offence has the right to have the charge against them decided by a competent, independent, and impartial court after a fair and public hearing.
• - The Right to Legal Representation
• --- An accused must be given the opportunity to be represented by a lawyer (i.e., a legal representative).

• Statute Law in protecting human rights:
• Ads + Disads:
• - Statutes are often detailed and precise, and protect human rights specifically, rather than being implied.
• - Parliament can include exemptions, limitations or restrictions in statutes, so protected human rights are not always absolute

• - Parliament has the ability to pass laws quickly if there is a need to promptly protect additional human rights.
• - The human rights protected in statute law are not as well protected as human rights contained in a constitution, as constitutional rights can only be altered or removed with public approval.

• Common Law in protecting human rights:
• Ads + Disads:
• - Courts can highlight to parliament gaps in the law that protects human rights, which may encourage parliament to change the law to further protect rights.
• - Often courts are reluctant to recognise certain human rights (e.g. the right to privacy), leaving it up to parliament to protect those rights.

• - Courts can make decisions to establish human rights in areas where parliament has not established human rights.
• - Courts must wait for a case to come before them to be able to declare the existence of human rights.

• Australian Constitution in protecting human rights:
• Ads + Disads:
• - Express rights can only be abolished or changed through the referendum process; that is, via a compulsory public vote. This means express human rights cannot be changed by parliament without the support of the Australian people.
• - Changing express rights through the referendum process is difficult for many reasons (e.g. a successful referendum requires a high degree of voter support, and voters can be reluctant and sceptical about voting for change). This means human rights may lag behind changes in community attitudes.

• - All rights, including human rights, protected by the Constitution are fully enforceable through the High Court, and any statute found to breach those rights can be declared invalid.
• - It is expensive and time-consuming to take a case to the High Court to challenge a statute that breaches any right contained in the Constitution.

• Rights stated in UDHR (broadly recognises):
• - to be equal before the law and entitled to equal protection of the law against discrimination of any kind, such as on the basis of race, colour, sex, language, religion, birth or other status
• - to not be subjected to torture or cruel, inhuman or degrading treatment or punishment
• - to a nationality and not to be arbitrarily (or randomly) deprived of their nationality
• - to own property alone or with others and not to be arbitrarily deprived of their property.

• International Treaties that protect rights:
• - The International Convention on the Elimination of All Forms of Racial Discrimination (1969)
• - The United Nations Declaration on the Rights of Indigenous Peoples (2007) (UNDRIP)

• International Organisations (IO) criticising Aus. for treatment of First Nations:
• - Aus. Gov. was one of four (out of 158) countries that voted against UNDRIP in 2007 and, as such, has not formally adopted the Declaration.
• - Criticised by IO (including UN) for treatment:
• --- in 2022, the UN Human Rights Committee to Aus. for failing to address racism and treatment of First Nations Aus.'s in the criminal justice system (including overrepresentation of First Nations adults and children in prison system, and deaths in custody)
• --- For failure to adequately protect Torres Strait Islander peoples against impacts of climate change (which interferes with their right to enjoy their culture and their private life, family and home).

• Laws that Apply (legislation):
• - The Australian Constitution does not specifically protect the human rights of First Nations people.

• - make it unlawful to discriminate against a person on the basis of their race, colour or national or ethnic origin in a range of areas and activities, including employment, education, accommodation, membership and sport
• --- Racial Discrimination Act 1975 (Cth)
• --- Equal Opportunity Act 2010 (Vic).

• - Bans behaviour that encourages hatred, serious contempt, revulsion or severe ridicule against another person or group of people because of their race and/or religion.
• --- Racial and Religious Tolerance Act 2001 (Vic)

• Specific Commonwealth, state and territory legislation has also been created to protect the rights of First Nations peoples, including:
• - The Native Title Act 1993 (Cth)
• --- recognises and protects First Nations peoples' right to claim native title over their traditional lands in certain limited cases. It also outlines basic rules for native title and provides a way to settle claims.
• - The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
• --- allows the Australian Government to preserve and protect places, areas (including Australian land and waters) and objects of particular significance to First Nations peoples, if state and territory laws fail to do so.

• Not all legislation is effective in protecting rights as:
• - Many conditions need to be met for native title to be granted, and the process for receiving compensation (i.e. money) for native title that has been compulsorily acquired (i.e. taken) by the government (e.g. for large infrastructure projects such as roads and railways) is slow and complex.

• Common Law:
• - Mabo vs Queensland (Mabo case).
• - Protects the land rights for First Nations people.

• Possible Reforms:
• - Self-determination
• --- the right to self-government in matters relating to their own internal and local affairs.
• --- would give them opportunity to have meaningful control over their lives that directly relates to their affairs and wellbeing.
• --- achieved through returning land, right to control land to First Nations peoples.

• - Constitutional recognition
• --- acknowledge First Nations peoples as the traditional owners and custodians of the land in the Aus. Con.
• --- can only be achieved through a successful referendum

- Addressing disadvantage in the criminal justice system

• Conflicting Attitudes:
• Difficult to protect rights of First Nations peoples because:

• - Reluctance of Parliament to Support Change:
• --- Members of parliament may hesitate to endorse controversial legal reforms, such as increasing the age of criminal responsibility or abolishing minimum sentencing laws, because they fear losing voter support. Vocal minorities that oppose such changes may influence political decisions.

• - Difficulty in Achieving Constitutional Change:
• --- Protecting rights of First Nations peoples through constitutional change is difficult, as it requires approval by a large majority of the Australian people in a referendum.
• --- Conservative voters may be reluctant to support such changes, and there may be misunderstandings or lack of interest in the proposal.

• - Limited Support in Federal Government:
• --- In the federal government, the majority in the upper house of parliament is often insufficient to pass reforms that strengthen the rights of First Nations people.
• --- This is because such changes require broader support from opposition parties, minor parties, and independent members, which can be difficult to secure.

• - The full name of the case.
• --- Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 .
• - When it happened.
• --- 11 February 2020

• - The "right" that the High Court established that First Nations people have.
• --- Aboriginal Australians, even if they were not Australian citizens, could not be considered "aliens" under the Constitution and thus could not be deported.

• - What were the facts of the case? (What was happening to the 2 First Nations men in this case?)
• --- Brendan Thoms and Daniel Love, who were born overseas but had Aboriginal heritage. Both men were facing deportation after serving criminal sentences, as they were not Australian citizens. 

• - What was the outcome?  (Who won the case and what did this mean for the 2 men?)
• --- Brendan Thoms and Daniel Love won the case and it meant that they could continue to stay in Australia since they are of aboriginal descent

• - What was the reasoning of the judges in making this decision?
• --- Because they could not be considered  get deported under the constitution since they were of aboriginal descent. 

• - Did all of the High Court judges agree?  If not, how many judges disagreed and what reasons did they give?
• --- The decision was split 4-3.
• --- The minority judges argued that the Constitution does not exclude non-citizens with Aboriginal heritage from being classified as "aliens." They believed citizenship should determine alien status.