Human Rights and Bills of Rights

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This topic is within Principles of Public Law.

Contents

Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010) pp. 1150-1155 (Chapter 26, section 1); 1356 – 1368 (Chapter 30, section 4).

Human Rights

[1] Human rights are entitlements which a human being can claim simply because he is a human being. Examples may be drawn from the Universal Declaration of Human Rights 1948[2]:

  • Article 3 – Right to life, liberty and security of person
  • Article 18 – Right to freedom of thought, conscience and religion
  • Article 19 – Right to freedom of opinion and expression
  • Article 20 – Right to peaceful assembly
  • Article 26 – Right to education

Although the declaration was drafted as a non-binding statement of values, it is now viewed as a form of customary international law which should be binding to all states – it has influence which exceeds its legal effect (similarly to the Magna Carta).

Louis Henkin[3] discusses the nature of human rights:

  • Human rights are defined and particular, not vague
  • Human rights are universal
  • They are the benefits which are essential for individual well-being, dignity and fulfilment and that reflect a common sense of justice, fairness and decency.
  • Human rights imply the obligation of society to satisfy those claims (through development of institutions, mobilising resources etc)
  • Human rights are between an individual and the state
  • Human rights are not necessarily absolute. In a case of emergency, these rights may be undermined to the extent that is necessary

Human rights can be categorised into two broad classifications Civil/Political rights, and Economic/Social rights:

Civil/political rights (negative immunity claims)

“Civil and political rights can be described as the rights which enable individuals to operate freely within the political system and to be protected from arbitral action in the administration of the law[4]” or “limitations on what the government might to do the individual[5]

These include freedoms to exercise rights without government intervention – namely, liberty, freedom of expression, freedom of religion, freedom of movement etc. In addition, they ensure that a person whose rights have been violated will have available remedies as a result. Examples are provided through the International Covenant on Civil and Political Rights[6]:

  • Article 19 – Freedom of expression
  • Article 26 – Equal protection under the law

Economic/social rights (positive claims)

“Allowing people to own property, to work in fair conditions and to be guaranteed an adequate standard of living and facilities for education and the enjoyment of life and the culture in which they live or have been brought up<refPeter Bailey, Human Rights: Australia in an International Context (Butterworths, 1990)in Textbook, p. 1153 ></ref>” or “claims to what society is deemed required to do for the individual[7]

These are the obligations of the state towards the individual – namely, the state must create institutions and provide resources for welfare, education etc. Examples are provided through the International Covenant on Economic, Social and Cultural Rights[8].

  • Article 9 – Right to social security
  • Article 11 – Right to adequate standard of living

Human rights in Australia

[9]Australia does not have a national human rights law. Australia has ratified both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. However, they are not enforceable under the law unless they are incorporated in statutes. Examples of such incorporations include:

Despite these legislations, neither of the Covenants (or the Universal Declaration of Human Rights 1948) have been wholly implemented. Australia is the only democratic country in the world without such a national law.

Existence of Negative/Positive claims in Australia

[10]The courts in Australia frequently recognised negative immunity claims, but rarely have they recognised positive claims. This has been exemplified in:

  • Lange v Australian Broadcasting Corporation[11]: s 7 and s 24 of the Constitution (imply political freedom) do not confer rights upon the individual but rather pose a restriction upon the government to curtail these freedoms.
  • s 116 (freedom of religion) – “The Commonwealth shall not make any law…”

The effect of these being ‘freedoms’ rather than ‘rights’ (namely, negative claims rather than positive) is that the only available remedy upon infringement is the invalidation of the legislation which curtails them. If these were positive claims, the victim would be entitled to further relief such as damages.

ACT and Victoria Bills of Rights

[12]The Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) are modeled after the UK model. This means they have the following characteristics:

  • Ordinary piece of legislation, not constitutional
  • New legislation must be accompanied by a written statement from Attorney-General regarding its compliance with human rights
    • The legislation is then reviewed by a parliamentary committee.
  • Judiciary not able to invalidate legislation, rather, declares incompatibility
    • Attorney general prepares a written response (to the declaration of incompatibility) to present to the parliament.
    • The parliament then determines whether to amend the legislation in question so it is compatible with human rights.
  • Encourages dialogue between the branches of government and the community with regards to rights, rather than judicial or legislative monologue.
  • Protects rights from the International Covenant on Civil and Political Rights.

Introducing a Bill of Rights

[13]There have been repeated attempts to introduce a Bill of Rights by the Commonwealth government, and several attempts by State Governments (this succeeded in ACT and Victoria).

Arguments for a Bill of Rights

  • A Bill of Rights will provide comprehensive protection of all universal rights which are not currently covered by Australian law.
  • A Bill of Rights would be consistent with the idea of democracy since it protects the rights of an Australian citizen.
  • A Bill of Rights will prevent discrimination of minorities and possibly non-citizens.
  • A Bill of Rights will legally empower those who are otherwise powerless.
  • All other Western/democratic nations have some form of a Bill of Rights.
  • A Bill of Rights will bring the international Covenants and Declarations Australia has ratified into legal effect.
  • A Bill of Rights will ensure that rights are considered within government policy-making and administrative decision-making.
  • A Bill of Rights will promote tolerance and understanding through education with regards to human rights.

Arguments against a Bill of Rights

[14]

  • Bill of Rights causes more problems than it solves:
  • Concepts of parliamentary supremacy and independent judiciary will be compromised:
    • Parliament doesn’t get to have the final say
    • Increased politicisation of judiciary: governments more likely to appoint judges based upon their political views rather than legal skills – undermines independent judiciary.
    • Gives the judiciary (not elected and unaccountable) a role that should be the responsibility of the elected parliament.
  • Rights are already well enough protected in Australia. The courts already protect rights through the interpretation of both the constitution and the common law.
  • Rights listed in the law actually little practical difference to the protection of rights.
  • Democracy itself is a protection of rights. We should trust in our representatives and our ability to hold them accountable (vote them out).
  • The definition of rights in a Bill of Rights will actually restrict and limit those rights.
  • A Bill of Rights will result in increased litigation and therefore more expenses.
  • A Bill of Rights would only reflect the rights of its framers – maybe some rights wouldn’t be important to future generations.

Issues to consider when enacting a Bill of Rights

[15]

  • Who is required to respect the rights/ who does the right protect us from:
    • Commonwealth/States/Parliament
    • Legislative/Executive/Judiciary
    • Private/Public
    • Citizens/Businesses
  • Legal form:
    • Statutory or constitutional?
    • If statutory, should it be entrenched through manner and form provisions, and will there be express override provisions?
  • Remedies for violations:
    • Declaration of incompatibility/invalidating subordinate legislation/damages?
  • Government role:
    • Executive statements accompanying new legislation/parliamentary committee review?
  • Type of rights:
    • Civil-political rights or economic-social rights?
    • Indigenous rights?

Human rights overseas

USA Bill of Rights

[16]The USA attached a Bill of Rights to its constitution. The American Bill of Rights expressly and impliedly confers both positive and negative rights. The 14th amendment specifies that these rights exist in both the Federal and State level.

The combination of the Bill of Rights and Judicial Review means that legislation which infringes human rights (as expressed/implied by the Bill of Rights) will be struck down immediately by the courts. This has been a cause of concern since it means that non-elected judges can override legislation made by an elected parliament.

  • This is a form of a ‘democratic deficit’ – true democracy not being realised.
  • The merits and dangers of ‘judicial activism’ (a judge taking personal or political considerations into account) need to be weighed.
  • Massive tension between judicial and parliamentary sovereignty.

India’s ‘Fundamental Rights’

The Indian Constitution can mostly be amended by any ordinary act of parliament. As a result, the ‘Fundamental Rights’ (provisions relating to human rights) were continuously amended during the first twenty years of India’s independence. Finally, the issue was discussed and decided in Kesavananda v State of Kerala[17]:

  • Parliament could amend the whole of the Constitution (including ‘Fundamental Rights’ provisions) as long as it doesn’t affect the ‘essential features’ or ‘basic structure’ of the Constitution.
  • The Supreme Court of India derived this reasoning from Victoria v Commonwealth[18].


End

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References

Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

  1. Textbook, pp. 1150-3
  2. Textbook, pp. 152-3
  3. Louis Henkin, The Age of Rights (Columbia University Press, 1990) in Textbook, pp. 150-2
  4. Peter Bailey, Human Rights: Australia in an International Context (Butterworths, 1990)in Textbook, p. 1153
  5. Louis Henkin, The Age of Rights (Columbia University Press, 1990) in Textbook, p. 1153
  6. Adopted 16 December 1966; entered into force 23 March 1976; 999 UN Treaty Series 171
  7. Louis Henkin, The Age of Rights (Columbia University Press, 1990) in Textbook, p. 1153
  8. Adopted 16 December 1966; entered into force 3 January 1976; 993 UN Treaty Series 3
  9. Textbook, pp. pp. 1154-5, 1356
  10. Textbook, pp. 1154-5
  11. (1997) 189 CLR 250
  12. Textbook pp. 1365-7
  13. p. 1362
  14. A Standing Committee on the Law and Justice, A NSW Bill of Rights, (New South Wales Parliament, Report No 17, October 2001) in Textbook, pp. 1364-5
  15. Textbook, pp. 1367-8
  16. Textbook, pp. 1356-9
  17. AIR 1973 SC 1461
  18. (1971) 122 CLR 35
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