Human Rights Human Rights ApproachesApproaches

How Human Rights are How Human Rights are ProtectedProtected

Which Way is Best?Which Way is Best?START

Ways of Protecting RightsWays of Protecting Rights

Human Rights Protection

ConstitutionalBill of Rights

The American Way

StatutoryBill of Rights

The Canadian / & British Way

Mixed Approach

The Australian Way

JUDICIAL SUPREMACYJUDICIAL SUPREMACY PARLIAMENTARIANISM

Case Study 1 Case Study 2

What is a Right?What is a Right?

►A A rightright is the power or liberty to which is the power or liberty to which one is justly entitled or a thing to which one is justly entitled or a thing to which one has a just claim. See here for Human one has a just claim. See here for Human RightsRights

►Some rights are “inalienable” - that is you Some rights are “inalienable” - that is you cannot have them removed by any power cannot have them removed by any power – including law. Others can be lawfully – including law. Others can be lawfully restricted, e.g. freedom of movement can restricted, e.g. freedom of movement can be restricted by a lawful jail sentence.be restricted by a lawful jail sentence.

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Constitutional Bills of RightsConstitutional Bills of Rights

► Rights are codified in the nation’s constitution.Rights are codified in the nation’s constitution.► This gives rights the status of This gives rights the status of superior lawsuperior law► They are, therefore, They are, therefore, incapable of amendmentincapable of amendment by by

legislatureslegislatures► Only the judiciary has any ability to “amend” a Only the judiciary has any ability to “amend” a

constitutional bill of rights by interpretationconstitutional bill of rights by interpretation

► This is the This is the highest levelhighest level of rights protection because of rights protection because the Bill of Rights cannot be altered by the executivethe Bill of Rights cannot be altered by the executive

► This results in the This results in the supremacy of the judiciarysupremacy of the judiciary as the as the guardians of rightsguardians of rights

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Statutory Bills of RightsStatutory Bills of Rights

► Rights are codified in statute lawRights are codified in statute law► This gives rights the status of This gives rights the status of ordinary lawordinary law► They are, therefore, They are, therefore, capable of amendmentcapable of amendment by by

legislatureslegislatures► They are also They are also capable of interpretationcapable of interpretation by the judiciary – by the judiciary –

as is any other statuteas is any other statute

► This offers a This offers a more flexiblemore flexible but less guaranteedbut less guaranteed approach approach – allowing the legislature (possibly dominated be the – allowing the legislature (possibly dominated be the executive) to amend the Bill of Rightsexecutive) to amend the Bill of Rights

► This still This still places the judiciary in a powerful positionplaces the judiciary in a powerful position due due to its ability to interpret rightsto its ability to interpret rights BACK

The Mixed ApproachThe Mixed Approach

► Rights are not codified in a single documentRights are not codified in a single document► Rights are located in a Rights are located in a variety of placesvariety of places – the – the

constitution, statutes, common law and international constitution, statutes, common law and international agreementsagreements

► This This allows legislatures and judiciaries a allows legislatures and judiciaries a complementary rolecomplementary role in protecting rights in protecting rights

► This is the This is the most fluid and flexible system but the least most fluid and flexible system but the least securesecure in terms of protection in terms of protection

► This method This method places theplaces the legislature in the dominant legislature in the dominant positionposition because its statutes can override common because its statutes can override common lawlaw

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The US ModelThe US Model

► The The US Bill of RightsUS Bill of Rights is regarded as the model is regarded as the model method in its approach to protection of rightsmethod in its approach to protection of rights

► It is a series of 10 amendments to the US It is a series of 10 amendments to the US Constitution that Constitution that expressly limit the powers of the expressly limit the powers of the governmentgovernment and lists the rights of US citizens and and lists the rights of US citizens and includes rights to silence, to bear arms, freedom of includes rights to silence, to bear arms, freedom of religion, speech, assembly etcreligion, speech, assembly etc

► It can only be altered via the Constitutional It can only be altered via the Constitutional amendment mechanism – which is amendment mechanism – which is above the above the Congress (legislature) or the President (executive)Congress (legislature) or the President (executive)

► It has resulted in It has resulted in supremacy of the US judiciarysupremacy of the US judiciary as as the interpreter and guardian of rightsthe interpreter and guardian of rights BACK

The Canadian ModelThe Canadian Model

► Canada has a statutory Canada has a statutory Bill of RightsBill of Rights► The Bill of Rights allocates powers to the The Bill of Rights allocates powers to the

judiciary to judiciary to invalidateinvalidate any law of parliament any law of parliament that contravenes the Bill of Rights – thus the that contravenes the Bill of Rights – thus the judiciary may strike down a statute of the judiciary may strike down a statute of the parliament if it breaches the Bill of Rightsparliament if it breaches the Bill of Rights

► The Bill The Bill could be altered by the parliamentcould be altered by the parliament but but this would attract tremendous attention in the this would attract tremendous attention in the media and be portrayed as an attack on rightsmedia and be portrayed as an attack on rights

► This system allows This system allows judicial supremacyjudicial supremacy over over rightsrights

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The British ModelThe British Model

► Britain has a statutory Bill of Rights – called Britain has a statutory Bill of Rights – called The Human Rights Act 1998The Human Rights Act 1998

► The Act allocates powers to the judiciary to The Act allocates powers to the judiciary to declaredeclare any law of parliament that threatens Human Rights any law of parliament that threatens Human Rights – the judiciary cannot strike down the statute– the judiciary cannot strike down the statute

► A law that threatens Human Rights is referred back A law that threatens Human Rights is referred back to parliament – which must either (a) justify why to parliament – which must either (a) justify why the human rights infringement is necessary OR (b) the human rights infringement is necessary OR (b) amend the law so that it does not infringe human amend the law so that it does not infringe human rightsrights

► This system allows This system allows parliamentary supremacyparliamentary supremacy over over rightsrights BACK

The Australian ModelThe Australian Model

Australia has a mixed approach…Australia has a mixed approach…► Constitutional rightsConstitutional rights ( (expressedexpressed) – few in number, includes ) – few in number, includes

freedom of religion, just compensation, trial by juryfreedom of religion, just compensation, trial by jury► Constitutional rightsConstitutional rights ( (impliedimplied) – discovered by the High Court ) – discovered by the High Court

via interpretation, includes freedom of speech, legal via interpretation, includes freedom of speech, legal representationrepresentation

► Statutory rightsStatutory rights – various Acts that ratify international – various Acts that ratify international agreements, such as the agreements, such as the UN Universal Declaration of Human RightsUN Universal Declaration of Human Rights, includes , includes Racial Racial Discrimination Act 1975Discrimination Act 1975, , Sex Discrimination Act 1983Sex Discrimination Act 1983 and and othersothers

► Common Law rightsCommon Law rights – ancient common law rights, including – ancient common law rights, including the right to silence and to a fair trial. Such rights are said to the right to silence and to a fair trial. Such rights are said to be “be “ingrained in the national psyche and command respect”. ingrained in the national psyche and command respect”. They are not codified but rather protected by established They are not codified but rather protected by established legal practice / precedentlegal practice / precedent and and community attitudes / community attitudes / expectationsexpectations

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Judicial SupremacyJudicial Supremacy

► Judicial supremacy results in systems that have codified Judicial supremacy results in systems that have codified constitutional or statutory Bills of Rights because these constitutional or statutory Bills of Rights because these can be interpreted by courtscan be interpreted by courts

► Constitutional Bills of Rights are superior law and are Constitutional Bills of Rights are superior law and are unalterable by the legislature, only interpretableunalterable by the legislature, only interpretable

► Statutory Bills of Rights are ordinary law and can be Statutory Bills of Rights are ordinary law and can be amended – but the political difficulty of altering them (an amended – but the political difficulty of altering them (an attempt to change them would be portrayed by some as attempt to change them would be portrayed by some as an attack on rights) makes them effectively only capable an attack on rights) makes them effectively only capable of interpretation by the judiciaryof interpretation by the judiciary

► Statutory Bills that that allow courts to Statutory Bills that that allow courts to invalidateinvalidate other other statutes increase the supremacy of the judiciarystatutes increase the supremacy of the judiciary

► Rights are regarded as “Rights are regarded as “inalienableinalienable” rather than ” rather than “negotiable”“negotiable”

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ParliamentarianismParliamentarianism

► Parliamentarianism results when parliament retains Parliamentarianism results when parliament retains sovereignty and is not bound by courts or constitutions sovereignty and is not bound by courts or constitutions in the area of rightsin the area of rights

► A statutory Bill of Rights that only allows courts to A statutory Bill of Rights that only allows courts to declaredeclare laws that contravene human rights and refer laws that contravene human rights and refer them back to parliament, retains the supremacy of them back to parliament, retains the supremacy of parliament. It puts the onus on parliament to explain or parliament. It puts the onus on parliament to explain or amend the Billamend the Bill

► A mixed approach, with no single Bill of Rights, retains A mixed approach, with no single Bill of Rights, retains a supreme role for parliament (except in the case of a supreme role for parliament (except in the case of express and implied constitutional rights – which allow express and implied constitutional rights – which allow judiciary supremacy)judiciary supremacy)

► Rights are viewed as “Rights are viewed as “negotiablenegotiable” rather that ” rather that “inalienable”“inalienable”

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CriticismsCriticisms

Judicial SupremacyJudicial Supremacy

► Places rights in the Places rights in the hands of unelected hands of unelected officialsofficials

► Prevents the Prevents the legislatures (peoples’ legislatures (peoples’ representatives) from representatives) from amended and amended and controlling rightscontrolling rights

ParliamentarianismParliamentarianism

► Executive dominance Executive dominance prevents parliament prevents parliament from protect rights from protect rights from executive powerfrom executive power

► Parliament can Parliament can represent extreme represent extreme views that might views that might trample on rightstrample on rights

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Case Study 1Case Study 1

Like many countries, Australia is seeing a decline Like many countries, Australia is seeing a decline in its civil rights, with new laws being passed in its civil rights, with new laws being passed which the government considers necessary to which the government considers necessary to combat the threat of terrorism.combat the threat of terrorism.

The The Anti Terrorism Act 2005Anti Terrorism Act 2005 allows for…allows for…► The short-term detention of individuals (up to a The short-term detention of individuals (up to a

fortnight), without charge, and without fortnight), without charge, and without evidence. Individuals can be interrogated by evidence. Individuals can be interrogated by Australia's security forces. Revealing that an Australia's security forces. Revealing that an individual is or has been detained or individual is or has been detained or interrogated is a criminal offence. interrogated is a criminal offence.

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Case Study 1Case Study 1

► Almost unlimited restrictions on named Almost unlimited restrictions on named individuals, including restrictions on association individuals, including restrictions on association (including with one's lawyer), movement, (including with one's lawyer), movement, possession of items (including those necessary to possession of items (including those necessary to one's profession), wearing a tracking device, and one's profession), wearing a tracking device, and attendance or non-attendance at particular attendance or non-attendance at particular locations at particular times. locations at particular times.

► Restrictions on all citizens to express certain Restrictions on all citizens to express certain opinions, particularly those that express opinions, particularly those that express dissatisfaction with the government. This has dissatisfaction with the government. This has been the topic of been the topic of great concerngreat concern by the media, by the media, where reporting of particular opinions may be where reporting of particular opinions may be considered considered seditiousseditious. .

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Case Study 1Case Study 1

►To recklessly provide funds to a To recklessly provide funds to a potential terrorist. The person doesn't potential terrorist. The person doesn't have to be a terrorist, only that the have to be a terrorist, only that the provider is reckless about the provider is reckless about the possibility that they might be. possibility that they might be.

►An increase in the powers granted to An increase in the powers granted to police in seeking information, and police in seeking information, and making it a criminal offence to reveal making it a criminal offence to reveal that such information has been sought. that such information has been sought.

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Case Study 1Case Study 1

► This law was introduced by the executive and This law was introduced by the executive and pushed through parliament.pushed through parliament.

Things to Consider…Things to Consider…► Has Has parliamentarianismparliamentarianism protected human rights protected human rights

in this case?in this case?► Are these laws “proportionate” to the terrorist Are these laws “proportionate” to the terrorist

threat?threat?► Are rights negotiable or inalienable in this case?Are rights negotiable or inalienable in this case?► Would a Bill of Rights and judicial supremacy Would a Bill of Rights and judicial supremacy

have resulted in a different outcome?have resulted in a different outcome?BACK

Case Study 2Case Study 2

The The Migration Bill 2006Migration Bill 2006 was designed to send all was designed to send all asylum seekers arriving in Australia by boat - asylum seekers arriving in Australia by boat - even if they made it to the mainland - to even if they made it to the mainland - to offshore islands like Nauru for processingoffshore islands like Nauru for processing

► The Bill was introduced by the executive The Bill was introduced by the executive governmentgovernment

► It became clear that several members of the It became clear that several members of the Government’s own party did not support the Bill Government’s own party did not support the Bill on the grounds that it was against the rights of on the grounds that it was against the rights of refugees and against international agreements refugees and against international agreements to which Australia is a signatoryto which Australia is a signatory

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Case Study 2Case Study 2

► When it came to vote for the Bill in the House When it came to vote for the Bill in the House of Representatives 3 members of the of Representatives 3 members of the Government’s party crossed the floor to vote Government’s party crossed the floor to vote with the Opposition and 2 others abstained with the Opposition and 2 others abstained from voting (from voting (here here is Petro Georgiou’s speech is Petro Georgiou’s speech on the Bill). This was not sufficient to break on the Bill). This was not sufficient to break the Government’s majority and the Bill the Government’s majority and the Bill passed the Housepassed the House

► The Government majority in the Senate is The Government majority in the Senate is only one senator. Therefore, one senator only one senator. Therefore, one senator crossing the floor or 2 abstaining would crossing the floor or 2 abstaining would defeat the Bill in the Senatedefeat the Bill in the Senate

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Case Study 2Case Study 2

►Senator Judith Thoeth informed the Senator Judith Thoeth informed the Prime Minister that she would be voting Prime Minister that she would be voting against the Bill.against the Bill.

►Realising that the Bill would be Realising that the Bill would be defeated the PM decided not to defeated the PM decided not to introduce it not the Senate. The Bill introduce it not the Senate. The Bill was therefore droppedwas therefore dropped

►The PM has since said he has The PM has since said he has abandoned abandoned the legislationthe legislation

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Case Study 2Case Study 2

Things to Consider…Things to Consider…►Has Has parliamentarianismparliamentarianism protected protected

human rights in this case?human rights in this case?►Are these laws “proportionate” to the Are these laws “proportionate” to the

threat to Australia from refugees threat to Australia from refugees seeking asylum?seeking asylum?

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