QCAA Legal Studies Human rights

Sovereignty refers to a nation-state’s independence and authority over its territory and peoples without interference from other nation-states.

Sovereignty is important to Australia’s integrity as a State, as it allows independence and the ability to exercise full control over the country’s political affairs. This means that Australia can make independent decisions to ensure the protection of its citizens and the advancement of its economy. Australia also has the right to create its own legal system and enforce its own laws. These laws apply to all citizens of Australia and all visitors to Australia.

Self-determination is the right of a peoples to decide their own political status and processes. For example, the peoples’ right to choose what sort of government they will have, without intervention from other nation-states. They can establish their own political structure and electoral system independently of external interference.

Non-refoulement means ‘non-return’. This principle prohibits states from returning refugees and asylum seekers to their home country, or any other place they may face danger, when there are grounds to believe that their lives or freedom would be at risk because of their race, religion, nationality, political opinion or membership of a particular group. The principle applies to all persons recognised as refugees under the Convention.

The primary role of the UNHCR is to protect the rights, health and safety of people who have been forced to flee from their homes. They do this by coordinating international action to address refugee crises and attempting to resolve refugee problems.
They provide advocacy and financial support to refugees and asylum seekers and run refugee camps for people displaced by war and natural disasters.
The UNHCR supports both refugees, i.e. those fleeing conflict or persecution who fit the international definition of ‘refugee’, and internally displaced people, i.e. those who are seeking refuge within the borders of their home country.

I agree with this statement to a moderate extent as while the express protection of rights are effective in acting as a check on Parliament, they come with their limitations.

The express rights include five rights that are explicitly stated in the Constitution and can only be changed through a referendum. An advantage of the express rights is that if Parliament attempts to create a law that breaches the express right, it can be challenged by the High Court and will instantly be invalidated and declared ultra vires. This ensures that Parliament passes laws that act in accordance with the Constitution and therefore enabling the express rights to act as a check. However a disadvantage is that if Parliament passes a law that goes against the express rights, it can only be invalidated if it is challenged in the High Court. Additionally, a person that wishes to challenge an unconstitutional law made by Parliament must have standing meaning they are directly affected by the case they are initiating.

Ratification is the action by which a State indicates its consent to be bound by an international treaty. It grants States the time necessary to seek approval for the treaty on the domestic level and to enact legislation, if needed, to give domestic effect to treaty obligations.

Under the Convention on the Rights of the Child 1989, a child is defined as any human being who is under the age of 18. This definition does not apply when there is law relevant to the child that provides for the age of majority to be attained earlier.
Children are awarded special protection under international law because they lack the maturity to be independent. This means they need to be supported and protected as they develop the physical and mental maturity to reach their potential.

The Act requires all Bills introduced into federal parliament to be accompanied by a statement of compatibility with human rights. It established a Parliamentary Joint Committee to examine Bills for compatibility with human rights.

The statement of compatibility (SoC) states the Bill has been assessed to determine whether it complies with the international human rights treaties Australia has ratified. SoCs ensure Australia’s human rights obligations are considered when drafting bills, improving human rights protection.
The Parliamentary Joint Committee on Human Rights (PJCHR) independently scrutinises each Bill and its accompanying SoC to determine if the Bill is compatible with human rights and reports its findings to both houses of parliament. This protects human rights as it promotes parliamentary debate to improve the quality of legislation by bringing greater awareness to human rights.

Two key human rights promoted by the Sex Discrimination Act (SDA) are the right to equality and freedom from discrimination. The SDA promotes these by making it illegal to discriminate on the basis of gender in situations, including work and accommodation. It also makes it illegal to pay men and women different salaries for the same work or not provide women with equal access to training and promotion opportunities.

The right to trial by jury is an express right within s 80 of the Australian Constitution, which states 'the trial on indictment of any offence against the Commonwealth shall be by jury'. This appears to be a strong protection for those charged with indictable offences as the Constitution cannot be easily altered, however, there are two limitations to this section. Firstly, it only applies to indictable offences, meaning persons charged with summary offences are not entitled to this right. Secondly, the Commonwealth Parliament can determine what is an indictable offence. This means it can re-categorise offences, such as terrorism. These limitations render s 80 less effective by restricting a person’s right to a jury trial. Clearly, the right to trial by jury is not a right that is fully protected even by the Constitution.

One UN role is maintaining international peace and security through the Security Council, which determines if there is a threat to international peace and security and works with involved parties to resolve issues peacefully. This can be through UN peacekeepers — troops, police and civilians from around the globe. Peacekeepers work to keep the peace and help build or rebuild as countries transition from conflict to peace. This includes protecting and supporting political processes, such as elections, assisting in disarming former combatants and restoring the rule of law.

The federal government’s power to legislate in response to human rights issues is strengthened and weakened by the Constitution. The Constitution divides the power to make laws between the states and the Commonwealth, identifying the areas to which this power extends for each level of government. As it does not mention human rights issues and any issue not mentioned could be deemed to fall under the category of residual powers — power to make laws relating to areas not specifically mentioned in the Constitution — held by the states, the federal government’s power to make laws with respect to human rights issues could be described as non-existent. In contrast, s 51(xxix) provides that the federal government has the power to legislate with respect to ‘external affairs’. The High Court of Australia has interpreted this to include the power to pass laws giving effect to Australia’s obligations under international treaties and conventions, including those relating to human rights such as the Convention on the Rights of the Child. This strengthens the power of the federal government to make laws regarding human rights issues.

Article 2(4) of the United Nations Charter promotes the protection of Members’ rights by instructing Members against using force or threats of force against another country in any way, including against their territorial integrity and political independence. Territorial integrity refers to a country’s independence related to its physical and demographic resources in its land, air and sea boundaries. According to Article 2(4), this means one country cannot legally impose border changes on another or access their resources without that country’s permission. Political independence is related to the non-material elements of a country’s autonomy, such as freedom of political decision-making. This means it is not legal, under Article 2(4), for one country to impose a political governance system on another.

The Australian Constitution provides limited protection of human rights. However, some rights (express rights) are protected by being explicitly stated in the Constitution. Other rights (implied rights) have been interpreted by the High Court of Australia to be implicitly protected, as they can be implied by the Constitution’s wording.

One example of an express constitutional right is the right to trial by jury. This right is protected, in some circumstances, by section 80, which states that trials of indictable offences against the Commonwealth will be jury trials and will be held in the state in which the offence took place.

One example of an implied right is the right to free speech. The High Court has determined that an implied right to freedom of political communication exists in the Constitution, as it is inherent in a system of representative government as created by sections 7 and 24.