Themes and Challenges:

the changing understanding of the relationship between state

sovereignty and human rights
issues of compliance and non-compliance in relation to human
rights
the development of human rights as a reflection of changing
values and ethical standards
the role of law reform in protecting human rights
the effectiveness of legal and non-legal measures in
protecting
human
rights.

1. The nature and development of human rights:

The definition of human rights:

- A right is something to which you are entitled.
- There are moral rights, customary rights, legal rights,
human rights, domestic right and international rights.
- Human rights are fundamental rights. They are things to
which every human being is entitled for just being a
human being.
Universal: To be enjoyed by all individuals
regardless of their nationality, gender, race or status.
Indivisible: That is, all human rights are equally
important.
Inherent: The birthright of all humans and are to be
enjoyed by all people simply by reason of their
humanity.
Inalienable: People cannot agree to give them up or
have them taken away.
- The indivisibility and universally of human rights is
recognised in the Charter of the United Nation 1945 and in
the Universal Declaration of Human Rights 1948.

Types of human rights:

There are three types of human rights:

Civil and Political Rights

Civil and political rights are also called first generation rights,
because they were the first to be recognised historically.
- Civil rights are entitlements belonging to all humans and
are to do with being a free citizen of a nation. (For
example freedom of thought and freedom of religion). ]
- Political rights are entitlements belonging to all humans
and are to do with full participation in government. (For
example the right to vote).
Civil rights and political rights both protect the individual from
the arbitrary exercise of power by the state. These rights are
set out in Article 3 to 21 of the Universal Declaration of Human
Rights 1948 and in the International Covenant of Civil and
Political Rights (ICCPR) 1966.
These rights are:
- The right of life, liberty and security of person
- The right to freedom from slavery
- The right to freedom from torture or cruel, inhuman
treatment
- The right to self-determination
- The right to recognition everywhere as person before the
law
- The right to equality before the law

Economic, Social and Cultural Rights:

Known as second generation rights, they are concerned with
the material and cultural wellbeing of people. They usually
require government action.
- Economic rights are the rights concerned with the
production development and management of material for
the necessities of life.
- Cultural rights are the rights which assist in preserving
and enjoying ones cultural heritage.
- Social rights are rights that give people security as they
live and learn together, such as the rights involving
schools and other institutions.
These rights are set out in Articles 23 to 27 of the Universal
Declaration of Human Rights 1948 and in the International
Covenant on Economic, Social and Cultural Rights (ICESCR)
1966.
These rights are:
-

Social security (social right)

Work, and just and favourable conditions of work
Equal pay for equal work
Join and form trade unions
Rest and leisure
Education
An adequate standard of living
Enjoyment of the highest sustainable standard of physical
and mental health
- Participate in the cultural life of the community

Environmental rights, peace rights and the right to selfdetermination:

- These collective rights are third generation rights which do
not necessarily belong to the individual, but rather to the
people.
- The right to self-determination is the collective right of
peoples to govern themselves.
-

The status of third generation rights in international is not

yet clear, although some have been recognised at least
partially in various international treaties and declarations.
Examples: Kyoto Protocol 1992 & Declaration on the
Rights of Indigenous Peoples 2007

Developing recognition of human rights:

- The termed emerged recently, around the 1940s,
however has been a concept rooted in ancient times
through such things like the notion of natural law.
- Natural law doctrine: The philosophy of natural law is
based on the idea that there exist certain natural laws
which apply to all humanity and which maintain the basic
dignity of human beings. Was developed in Ancient Greece
by philosophers such as Plato and Socrates.
- Historical constitutional documents: Human rights have
been gradually recognised through various documents
which have become part of the constitutions of individual

nations and international agreements. The central ones

are:
The Magna Carta 1215: The Magna Carta included
the principles that: every citizen has a right to
freedom, anyone accussed of a crime must be
brought before the courts, there must be equality of
all before the laws and the writ of habeas corpus
(cannot be imprisoned without good reason).
Declaration of Rights 1689: Expressed clear the
principles in the Magna Carta. Primary purpose was
to establish the supremacy of parliament over the
king. Also established some individual rights like
freedom of speech.
American Declaration of Independence 1776: (we
hold these truths to be self-evident, that all men are
created equal, that they are endowed by their
Creator with certain unalienable rights, that among
these are life, liberty and the pursuit of happiness.)
French Declaration of the Rights of Man and the
Citizen 1789: (All men are born and remain free and
equal in rights.)

Movements recognising human rights:

- Abolition of slavery: Right to freedom from slavery is
recognised in Article 8 of the ICCPR. Its international
development is:
General Act of Brussels
1890:
First international treaty
abolishing slavery.

Slavery Convention
1926:

While slavery still exists in

various forms today, the United
Nations Working Group on
Contemporary Forms of Slavery
are monitoring nation
compliance. This is assisted by
the International Labour
Organisation (ILO), World Health
Organisation (WHO) and Anti-

Article 4 of the Universal

Declaration of Human Rights
1948
The Supplementary
Convention on the Abolition
of Slavery, the Slave Trade
and Practices Similar to
Slavery 1956:
One of three conventions
still operating to eliminate
slavery.

Article 8 of the International

Convention on Civil and
Political Rights 1966

- Trade Unionism and labour rights: A trade union is an

association of wage earners which exist in order to
maintain and improve the working conditions of its
members. They developed to fight for what are now
recognised as fundamental human rights, listed in the
ICESCR 1966 such as:
The right to enjoyment of just and favourable work
conditions (Article 7)
The right to form and join trade unions (Article 8)
The right to an adequate standard of living (Article
11)

Articles 23 and 24 of the UNHR 1948.

The International Labour Organisation (ILO) was

formed in 1919, an intergovernmental agency of the
League of Nations, to discuss social reforms and
implement them the ILO still exists but now is an
agency under the UN.

Universal suffrage: The right of all adults to vote in

government elections. Recognised as the right to selfdetermination in Article 1 of both the ICCPR and the

ICESCR. This is a concept that has undergone gradual

development.
American Declaration of
Independence 1776 and
Declaration of the Rights of
the Man 1789 (France) were
the first documents that
established the right for
people to choose their own
government.

Representation of the People

Act 1918 (UK) = whole male
adult population

Female Suffrage:
NZ: 1893
Australia: 1902
US: 1920
UK: 1928

Article 21 of the UDHR

identifies Universal
Suffrage.
Article 1 of the ICCPR
and the ICESCR also
do.

New South Wales granted universal male

suffrage (including indigenous people) in
1858.

Extended 15th Amendment in

America in 1870 gave all men
Universal Education:
voting.

being
allowed
to vote, the 1967
The rightWhile
to free
and
compulsory
constitutional referendum gave Indigenous
education for all children. The right to education is
Australians equal status as citizens, including
enshrined in Articles 13 and 14
thetoICESCR.
theof
right
be counted in the census.

Education Act 1870 (UK) by 1880 all children under the

age of 15 were required to attend school, with free and

secular public instruction
In NSW, Public Schools Act 1866 (NSW) was introduced to
establish a system of state elementary schools throughout
the state
Public Instruction Act 1880 (NSW) saw the government
taking control of all the Church-run schools (except the
Catholic Church) and making education free, secular and
compulsory.
Compulsory for all Australians to attend school from at
least the ages of 6 to 15 (since 2010 in NSW 17), with 99%
literacy rate
Article 26 UDHR: childrens elementary education should
be compulsory and be made widely available after that
Millennium Development Goals 2001 (all member states of
the UN agreed): all children in the world will have a

minimum education up to the end of primary level by

2015 (however, 130 million children aged between 6 and
11 still do not have access to primary education)

- Self Determination: The right of peoples to decide their

own political status and to choose their own form of
government.

A collective human right, most clearly first established

with the 1776 US Declaration of Independence against
British colonial rule
Articles 1(1) and 55 of the Charter of the United Nations
1945
Article 1 of ICCPR and ICESCR
Article 15 of the UDHR (everyone has a right to a
nationality and no one should be arbitrarily deprived of
this or of the right to change nationality)
The non-binding declaration of the Declaration of the
Rights of Indigenous Peoples 2007 was adopted by the UN
to address the controversial claim to self-determination
rights of indigenous people four states rejected the
declaration (including Australia) with many more
abstaining from the vote in April 2009, however the Rudd
Government formally endorsed the declaration
- Environmental Rights: the right to a clean, healthy and
sustainable environment.
Article 23 of the African Charter on Human and Peoples
Rights 1981 (adopted by 53 African states). the right to a
satisfactory environment
Protocol 2 of American Convention of Human Rights
1988 of the Organisation of American States (North and
South American) right to a healthy environment and
the obligation of all states to protect, preserve and
improve the environment
Stockholm Declaration 1972 natural resources of the
earth, including the air, water, land, flora and fauna must
be safeguarded for future.

 Rio Declaration 1997 States shall cooperate in a spirit

of global partnership to conserve, protect and restore the
health and integrity of the Earth's ecosystem
Kyoto Protocol 1997 commits states to reduce
greenhouse gases emissions, based on the premise that
(a) global warming exists and (b) man-made CO2
emissions have caused it
States fail to adequately commit to measures for the
benefit of the global community when they may be
disadvantageous in the short-term for their national
interest. The Copenhagen UN Climate Change
Conference 2009 exemplified this.
Peace rights: the right of citizens to expect their government
will do all in its power to maintain peace and work towards the
elimination of war.
The Paris Peace Conference 1919 lead to the creation of
the League of Nations with an aim to to promote
international co-operation and to achieve peace security.
The Charter of United Nations 1945 obliged nations to
settle their international disputes by peaceful means
(article 2/3).
The UN General Assembly adopted the Declaration of the
Rights of Peoples to Peace 1984. Though non-binding, it
aims that all peoples of our planet have a sacred right to
peace/promoting the right as a fundamental obligation of
states/government policies.

Article 51 of the UN Charter: states have an inherent right

of individual or collective self-defence if an armed attack
occurs against them. Article 39 of the UN Charter: the UN
Security Council can authorize actions to maintain or
restore peace if necessary.
Formal Statement of Human Rights:
The atrocities of World War 1 and 2 led to a wider recognition
of human rights. Certain documents developed that marked

the beginning of international recognition of human rights,

they were:
Charter of the United Nations 1945: Marked the
beginning of international recognition of human rights
and of their protection. Was a binding treaty for member
states, with the primary purpose being peace.
Universal Declaration of Human Rights 1948: This
document lists the human rights to which every person is
entitled. It is non-binding but still influential and is a
cornerstone for international human rights law.
International Covenant on Civil and Political Rights 1966:
Was created to give legal force to part of the UDHR. The
ICCPR is a binding international treaty creating
obligations on states to respect civil and political rights
of individuals. Came into force in 1976 when ratified by
the requisite number of countries: 35. Now have 165
state parties.
International Covenant on Economic, Social and Cultural
Rights 1966: Gave legal force to the second part of the
UDHR. Is a binding international treaty creating
obligations on states to respect economic, social and
cultural rights of the individual. Have 160 state parties.
Treaties dealing with specific human rights:

Convention on the Elimination of All Forms of

Racial Discrimination 1965

Convention on the Elimination of All Forms of
Discrimination Against Women 1979
Convention on the Prevention and Punishment
of the Crime of Genocide 1948
Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
1984
Convention on the Rights of the Child 1989
Declaration on the Right of People s to Peace
1984

Declaration on the Rights of Indigenous Peoples

2006

2. Promoting and Enforcing Human Rights:

State sovereignty:

- The ultimate law-making power of a state over its territory

and population, including independence and freedom from
external influence.
- States have the ability to choose whether they will enforce
human rights and the extent to which they will protect them.
- State sovereignty may be used as a justification for the unfair
abuse and exploitation of a population by its government
not all governments equally accept the idea that their own
people have certain rights
- e.g. Child Brides in Pakistan highlights the violation of
childrens rights but due to state sovereignty other states
cannot overrule that government.
- State sovereignty can impact negatively on the protection of
human rights because breaches of these rights cannot be
controlled.
- The protection of human rights internationally undermines the
idea of national sovereignty because it means interfering with
a nations domestic affairs

The role of organisations in international responses:

The United Nations (UN): A vast organisation with 192 member

states. There is:
- General Assembly (UNGA): representatives from all member

states, equal voting power, main forum for international

discussions, deliberations, declarations and

recommendations, the UN Human Rights Council (UNHRC) is

the UNs principal human rights body and reports directly to
the UNGA. Aims to address human rights violations worldwide
and make recommendations, works closely with the OHCHR to
perform its duties.
Security Council (UNSC): maintenance of international peace
and security, exercises power through legally binding
resolutions, can authorise military action, sanctions or
peacekeeping operations.
Economic and Social Council (ECOSOC): 54 rotating members
meeting annually to assist in promoting international
economic and social cooperation and development
Secretariat: the UN administrative body headed by the UN
Secretary-General; contains the departments and offices of
the UN (e.g. Office of the High Commissioner for Human
Rights)
International Court of Justice (ICJ): principle judicial organ of
the UN (empowered by the UN Charter), has jurisdiction to
hear disputes submitted by member states and issue advisory
options, cases only rarely relate to human rights

Intergovernmental Organizations:
European Union (EU):
- States must be democracies that uphold the rule of
law, respect and uphold universal human rights and
adhere to the UN Charter on the use of force
North Atlantic Treaty Organisation (NATO):
- States must be democracies that uphold the rule of
law, respect and uphold universal human rights and
adhere to the UN Charter on the use of force
Commonwealth of Nations:
- Abide by the principles of democracy and respect
human rights
- Can be expelled from the Commonwealth due to noncompliance (e.g. Fiji, Nigeria, Pakistan and Zimbabwe
have all been temporarily suspended)

- Promotion of democracy, the rule of law, human rights,

individual liberty and good governance
Association of Southeast Asian Nations (ASEAN):
- ASEAN Charter 2008
- ASEAN Intergovernmental Commission on Human
Rights: established in 2009, aims to promote and
protect human rights, no formal enforcement powers,
members cannot be punished for infringements

Courts, Tribunals and Independent Authorities:

International Court of Justice (ICJ):
- To hear and judge disputes between states, and to issue
advisory opinions on matters of international law
- Relatively few cases
- Strong criticism over the requirement of the consent of state
parties to hear matters and thus has limited jurisdiction
- Unable to hear cases brought by individuals or private
organisations
- Limited powers of enforcement

International Criminal Court (ICC):

- Permanent international court that hears cases relating to the
most serious international crimes and gross human rights
abuses (i.e. genocide, war crimes and crimes against
humanity)
- Individuals can be tried for crimes against humanity and
human rights infringements
- Established by the Rome Statue (111 parties have agreed to
the statutes provisions and the jurisdiction of the ICC)

Ad Hoc UN Tribunals:
- Set up by the UNSC under the rules of UN Charter
- Individuals could be prosecuted for crimes against humanity

- e.g. International Criminal Tribunal for the former Yugoslavia

1993 heard breeches of the Geneva Conventions (i.e. war
crimes)
- e.g. International Criminal Tribunal for Rwanda 1994 (cases of
genocide)
European Court of Human Rights:
- Member states are all bound by the European Convention on
Human Rights
- Individuals can bring forward cases
- Jurisdiction over human rights issues in the EU
- Limited enforcement powers (states that do not comply to its
ruling could be expelled from the Council)
- Influential body: numerous laws in the UK have been revised
following ECHR rulings. However has a backlog of 120 000
cases.
Statutory Authorities:
Human Rights Committee:
- Assesses member states compliance with the ICCPR and can
hear petitions raised by the states about each others
compliance
- The First Optional Protocol to the ICCPR hives the Committee
jurisdiction to hear personal complains brought by individuals
of member states about human rights violations in their own
country
- Toonen v Australia 1994 (UN Human Rights Committee)
Tasmanian Nicholas Toonen complained about
Tasmanian laws that criminalised consensual sex
between adult males; were a violation of his right to
privacy (protected under Article 12 of UDHR and 17
of ICCPR)
Discrimination based on sexual activity and
orientation breeched Articles 2 and 7 of UDHR and
Article 26 of ICCPR
The Committee ordered Australia to repeal the law as
it was in violation of Toonens right to privacy

 Tasmania refused to repeal the law and thus the

federal government was forced to enact the Human
Rights (Sexual Conduct) Act 1994 (Cth), which
legalised consenting sexual activity between adults
throughout all of Australia

Human Rights Council:

- Universal Periodic Review of all member states
- However, it is up to the state to declare what action they will
take if inadequacies present themselves
Committee on Economic, Social and Cultural Rights (CESCR)
Committee on Elimination of Racial Discrimination (CERD)
Committee on the Elimination of Discrimination Against Women
(CEDAW)
Committee on the Rights of the Child (CRC)
- Their role is to consider reports, individual complaints and
communications and publishing general comments and
organising forums and discussions related to issues

Non-Governmental Organisations:
Independent and without any representation of government i.e.
private voluntary organisations, citizens associations and civil
society organisations
Naming and shaming can pressure governments to act in the
right way
- International Committee of the Red Cross
Permanent observer status of UNGA
International humanitarian law: to protect the life and
dignity of the victims of international and internal
armed conflicts (often overlapping with human rights
abuses)
Amnesty International:

 "To conduct research and generate action to prevent

and end grave abuses of human rights, and to
demand justice for those whose rights have been
violated

The Media:
- Naming and shamings governments and human rights
violators by exposing instances of human rights
abuse/places pressure on governments to enact change
- Article 19 of UDHR 1948; right to a free and impartial
media (important as it influences public opinion
significantly)
- Quickly mobile public action against human rights
abuses e.g. Kony 2012
- Compassion fatigue can be a result of constant news
coverage
- Tendency for media to have broad as opposed to deep
coverage

Evaluate the effectiveness of international

responses in promoting and enforcing human
rights.
While the international legal system has been reasonably
effective in promoting and publicising protection of human
rights, there have been limits to its success in actually
providing protection. The limits to the effectiveness of
international law in protecting human rights are:

Reason

Effect

Not all countries are

party to human rights
treaties

As a result the individuals in those countries

are not protected by such treaties. Thus the
concept of state sovereignty comes in,
however some argue that the UDHR acts as
customary law on everyone.
The enforcement of the UNI bodies do not
apply to all treaties and some are optional
rather than compulsory. Even if a nation
agrees to a treaty, it doesnt have to agree to
the UNs enforcement mechanisms.
Enforcement of any international law is
problematic because it relies on consensus,
reciprocity and the notions of legal
responsibility.
The Human Rights Council, with the Universal
Periodic Review program, relies on each
member state to accurately report its own
human rights infringements. States can
choose not to report situations.
The SC has only used the powers of
humanitarian intervention four times, and is
extremely wary to intervene in sovereign
states. (Rwanda genocide 1994)
War crime tribunals have often entrenched
the conflict rather than end it. ICC has had no
major impact.
UN bodies all suffer from a chronic lack of
funding which limits their ability to function
effectively.
The reporting procedures of nations to UN
bodies have been criticised as they do not
consider NGO information formally.
The media is effective in promoting issues
and inspiring public action to human rights.
However this can cause a compassion
fatigue in the public and also the media only
provides a broad, but not deep, coverage.

Lack of adequate
enforcement
mechanisms

Enforcement by
consensus

Reliance on state
reporting

Lack of Security
Council action

War crime tribunals

Lack of funding

Informal recognition of
NGOs
Effectiveness of the
media

The incorporation of human rights into domestic law:

Protection of human rights in Australia has been generally of a
high standard; however some court action and statutes have
place limitations on human rights. Australia incorporates
human rights into their legislation in a process of:
- The treaty is drafted
- States sign treaty (with intention to mirror it in their
domestic law)
- It is when the treaty is then ratified that it becomes legally
binding
in the states legal system. Australia
requires domestic law incorporation.

The role of domestic law measures:

The Constitution (including division and separation of powers):

Expressed Rights:
- s. 116 (freedom of religion i.e. Commonwealth not to
legislation in respect of religion)
- s. 117 (right against discrimination on the basis of outof-State residence i.e. no subjection to any disability or
discrimination on a state basis)
- s. 109 (inconsistency of laws i.e. legislature hierarchy
Commonwealth law shall always prevail)
- s. 80 (trial by jury i.e. indictable offences against any
law of the Commonwealth shall be by jury in the state
where the offence was committed)
- s. 51 (xxxi) (right to just compensation i.e. acquisition
of property on just terms)
- s. 51 (xxxvii) (residual powers i.e. States can refer
power back to Commonwealth)

- s. 51 (legislative powers of the Parliament: power to

make laws for the peace, order, and good government
of Commonwealth)
Implied Rights:
- s. 7 & s. 24 (implied HCA right to vote i.e. composed
of members directly chosen by the people of the
Commonwealth Roach v Electoral Commissioner
2007)
- s. 7 & s. 24 (implied HCA freedom of political
communication Lange v Australian Broadcasting
Corporation
1997)

(Separation of Powers): the prevention of one person or group

from gaining total power by dividing power between the
executive, the legislature and the judiciary
- The Legislature: elected law-makers in Parliament
- The Executive: government ministers, the GovernorGeneral and Prime Minister
- The Judicature: the courts that interpret and apply the
law
Since the New South Wales v Commonwealth (Wheat
Case) 1915, the HCA decided that a strict separation
of judicial power was a fundamental principle of the
Constitution does not want to be politicized.
The judiciary is able to strike down any legislation
that is deemed incompatible with the provisions of
the Constitution

(Division of Powers): the arrangement of how the powers

between the federal and state government are divided.

- Heads of Power: powers listed in s. 51 and s. 52

describe the area that the Commonwealth can legislate
on
e.g. currency (s. 51 (xviii)), marriage (s. 51 (xxi)),
external affairs (s. 51 (xxix) ability to legislate on
treaties (ICCPR, ICESCR, CROC, CEDAW, UDHR)
- Residual Powers: powers not listed (thus omitted) in
the Constitution for the Commonwealth to legislate on
are deemed to remain the powers of states
e.g. air navigation and terrorism regulation
Statute Law:
Commonwealth and state legislation has been adopted by
successive parliaments to protect human rights e.g.
-

Racial Discrimination Act 1975 (Cth)

Sex Discrimination Act 1984 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
Disability Discrimination Act 1992 (Cth)
Age Discrimination Act 2004 (Cth)
Anti-Discrimination Act 1977 (NSW)
Social Security Act 1991 (Cth) adequate standard of
living for all

Creation of Bodies (e.g. Australian Human Rights Commission

and NSW Anti-Discrimination Board) administer federal human
rights legislation, including anti-discrimination and privacy
legislation
The AHRC investigates and conciliates complaints about human
rights abuses but it does not have the power to make legally
binding decisions.
Parliamentary committees and law reform bodies investigate
the protection of human rights in Australia and make
recommendations for reform e.g. Parliaments Human Rights
Subcommittee.

Common Law
The body of law passed down by judgements of the courts. Has
evolved over the years independent of government and carries
the power to protect many human rights. Common law cannot
be relied upon to develop new rights as judgements will only
define those rights on a case-by-case basis e.g.
- ABC v Lenah Games Meats Pty Ltd 2001, the HCA
suggested the possibility of a tort for invasion of
privacy
- Giller v Procopets 2008, the Supreme Court of Victoria
recognised a persons right to privacy
- Mabo and other v the State of Queensland 1992,
decided native title existed if the Indigenous
occupiers of the land could demonstrate an ongoing
traditional connection with the land and the title had
not been extinguished by a valid government action .
Courts and Tribunals
- The NSW Administrative Decisions Tribunal can hear
complaints about discrimination and make legally binding
decisions about the matter (can award damages up to $40
000).
- The ACT and Victorian courts can also hear and make
decisions about the abuse of human rights contained in their
legislative Charter of Rights.
- High Court of Australia: can set binding presents on other
courts and overturn state of Commonwealth legislation
- e.g. decriminalisation of homosexuality (Croome v
Tasmania 1997), Constitution right to freedom of
political communication (Lange v Australian
Broadcasting Corporation 1997), possible common law
right to privacy (ABC v Lenah Games Meats Pty Ltd
2001), all peoples right to vote (Roach v Electoral
Commissioner 2007), recognition of the Australias
indigenous peoples right to their traditional land i.e.
native title (Mabo v Queensland 1992)
- International tribunals can also be effective in addressing
human rights violations where there is no domestic legislation
enacting the provisions of signed treaties e.g. Toonen v

Australia 1994 (Tasmanian homosexuality laws interfered with

his right to privacy under Articles 17 and 26 of the ICCPR
lead to Human Rights (Sexual Conduct) Act 1994 (Cth)).

Non-Government Organisations
Amnesty International
The Red Cross
The Australian Human Rights Centre at UNSW (provides
information about human rights and publishes material
about current developments that affect human rights
law)
The NSW Council for Civil Liberties (monitors and
comments on developments that may affect civil rights)
Effective in cultivating public awareness, researching
issues, making submissions to the Commonwealth,
prompting law reform and exposing violations, however,
are have very limited on-the-ground functionality

The Media
Indispensable role in naming and shaming governments
and human rights violators e.g. Slaving Away by Four
Corners expose s human rights violations in more depth
Significant influence on public opinion and government
action
The rights of Australian reports to disseminate
information and the right of the public to receive
information are not enshrined in law but the freedom of
political communication is protected to an extent by HCA
interpretation.

Discuss the arguments for and against a Charter of

Rights for Australia.
Charter of Rights (aka Bill of Rights or Declaration of Rights) is a
legal document which sets out the basic rights (civil, political
and cultural) to which every human should be entitled.
Entrenched Charter: Part of the Constitution therefore all
citizens are protected no matter who is in government (no
government can pass a law which contradicts a right given by
the charter), however, difficult to amend as it requires a
referendum and thus is not as fluidly reflective of changing
social values (e.g. the US right to bare arms sees mass
shootings, violence and murder as it is no longer relevant)
Legislative Charter (aka Statutory Charter): an act passed by a
parliament in the same way as any other law is passed, the
Human Rights Consultation Committee suggested that Australia
should pass a legislative charter as it can be continually

reflective of community values, however, it does not have the

same level of protection as an Entrenched Charter as the
political party in power can change it (e.g. Britain, New
Zealand, Victoria and the ACT)
Arguments for COR
Arguments against COR
The common law has not
Human rights are already
protected human rights
adequately protected through
adequately as seen in McInnes international agreements and
vs The Queen.
common/statute law.
A Charter of Rights would
A Charter of Rights can only
protect minority groups who
protect people within the limits
are not adequately protected.
of the rights it lists.
(Aboriginals)
The common law is too slow to A Charter of Rights may mean
meet contemporary needs
the judiciary would take on a
such as technological
political role because it would
advances.
have to decide whether laws
infringed the charter.
A Charter of Rights would
An entrenched Charter of
protect people from
Rights is difficult to change
government inference in basic and may become irrelevant
human rights.
over time.
A Charter of Rights would
A legislative Charter of Rights
adopt a major
is too easy to change and can
recommendation of the
be amended according to
National Human Rights
political policies of a party.
Consultation Committee and
Drafting a Charter of Rights
bring Australia into line with
would also be extremely costly.
other countries.

Evaluate the effectiveness of Australian

responses in promoting and enforcing human
rights
Australia has generally had a good record on human rights, and
also a prominent role in the international arena in the
promotion of human rights.
Advantages:

Disadvantages:

Active in drafting UDHR,

ICCPR, ICESCR and other
international documents.

The role of the AHRC has been

criticized as it does not have
adequate power to protect
rights (not legally binding)
The Australian Constitution
Unwillingness of the
already contains some core
government to adopt laws and
human rights protection and a practices to address human
separate charter is not
rights issues.
needed. In addition,
Eg Anti-terrorism laws such as
entrenched charters can be
the Anti-Terrorism Act 2005
inflexible and lead to an
which introduced control
infringement of the separation orders and preventative
of powers doctrine.
detention which breached
human rights in the ICCPRCase: Mohammed Haneef
2007
Australia has a strong human
Reluctance to sign
rights body in the Australian
international treaties. Eg:
Human Rights Commission
Delayed signing of Kyoto
which is independent of
Protocol in 2007
government.
Many human rights in Australia Lack of Charter of Rights
are protected through noninterference
The treatment and quality of
Treatment of Aboriginal and
life for Aboriginal continues to Torres Strait Islanders
improve and previous
discriminatory legislation has
been ceased.
N/A
Mandatory detention of asylum
seekers and timeframes for
processing claims for refugee
status.

3. Investigate a Contemporary Issue which Illustrates

the Promotion and/or Enforcement of Human Rights.

Investigate a contemporary human rights issue and evaluate

the effectiveness of legal and non-legal responses to the issue.

HUMAN TRAFFCIKING

Legal Reponses
Benefits
United Nations
Protocol against
Trafficking in
Persons 2003,
showed more than a
doubling of abiding
states from 54 to
125 out of 155
covered.
United Nations
Protocol to Prevent,
Suppress, and
Punish Trafficking in
Persons
United Nations
Convention against
Transnational
Organized Crime

Non Legal Responses

Detriments

Benefits

Detriments