Human Rights Approaches How Human Rights are Protected Which Way is Best? START

Ways of Protecting Rights JUDICIAL SUPREMACY PARLIAMENTARIANISM Case Study 1Case Study 2

What is a Right? ► A right is the power or liberty to which one is justly entitled or a thing to which one has a just claim. See here for Human Rights here ► Some rights are “inalienable” - that is you cannot have them removed by any power – including law. Others can be lawfully restricted, e.g. freedom of movement can be restricted by a lawful jail sentence. BACK

Constitutional Bills of Rights ► Rights are codified in the nation’s constitution. ► This gives rights the status of superior law ► They are, therefore, incapable of amendment by legislatures ► Only the judiciary has any ability to “amend” a constitutional bill of rights by interpretation ► This is the highest level of rights protection because the Bill of Rights cannot be altered by the executive ► This results in the supremacy of the judiciary as the guardians of rights BACK

Statutory Bills of Rights ► Rights are codified in statute law ► This gives rights the status of ordinary law ► They are, therefore, capable of amendment by legislatures ► They are also capable of interpretation by the judiciary – as is any other statute ► This offers a more flexible but less guaranteed approach – allowing the legislature (possibly dominated be the executive) to amend the Bill of Rights ► This still places the judiciary in a powerful position due to its ability to interpret rights BACK

The Mixed Approach ► Rights are not codified in a single document ► Rights are located in a variety of places – the constitution, statutes, common law and international agreements ► This allows legislatures and judiciaries a complementary role in protecting rights ► This is the most fluid and flexible system but the least secure in terms of protection ► This method places the legislature in the dominant position because its statutes can override common law BACK

The US Model ► The US Bill of Rights is regarded as the model method in its approach to protection of rights US Bill of Rights US Bill of Rights ► It is a series of 10 amendments to the US Constitution that expressly limit the powers of the government and lists the rights of US citizens and includes rights to silence, to bear arms, freedom of religion, speech, assembly etc ► It can only be altered via the Constitutional amendment mechanism – which is above the Congress (legislature) or the President (executive) ► It has resulted in supremacy of the US judiciary as the interpreter and guardian of rights BACK

The Canadian Model ► Canada has a statutory Bill of Rights Bill of RightsBill of Rights ► The Bill of Rights allocates powers to the judiciary to invalidate any law of parliament that contravenes the Bill of Rights – thus the judiciary may strike down a statute of the parliament if it breaches the Bill of Rights ► The Bill could be altered by the parliament but this would attract tremendous attention in the media and be portrayed as an attack on rights ► This system allows judicial supremacy over rights BACK

The British Model ► Britain has a statutory Bill of Rights – called The Human Rights Act 1998 The Human Rights Act 1998The Human Rights Act 1998 ► The Act allocates powers to the judiciary to declare any law of parliament that threatens Human Rights – the judiciary cannot strike down the statute ► A law that threatens Human Rights is referred back to parliament – which must either (a) justify why the human rights infringement is necessary OR (b) amend the law so that it does not infringe human rights ► This system allows parliamentary supremacy over rights BACK

The Australian Model Australia has a mixed approach… ► Constitutional rights (expressed) – few in number, includes freedom of religion, just compensation, trial by jury ► Constitutional rights (implied) – discovered by the High Court via interpretation, includes freedom of speech, legal representation ► Statutory rights – various Acts that ratify international agreements, such as the UN Universal Declaration of Human Rights, includes Racial Discrimination Act 1975, Sex Discrimination Act 1983 and others UN Universal Declaration of Human RightsUN Universal Declaration of Human Rights ► Common Law rights – ancient common law rights, including the right to silence and to a fair trial. Such rights are said to be “ingrained in the national psyche and command respect”. They are not codified but rather protected by established legal practice / precedent and community attitudes / expectations BACK

Judicial Supremacy ► Judicial supremacy results in systems that have codified constitutional or statutory Bills of Rights because these can be interpreted by courts ► Constitutional Bills of Rights are superior law and are unalterable by the legislature, only interpretable ► Statutory Bills of Rights are ordinary law and can be amended – but the political difficulty of altering them (an attempt to change them would be portrayed by some as an attack on rights) makes them effectively only capable of interpretation by the judiciary ► Statutory Bills that that allow courts to invalidate other statutes increase the supremacy of the judiciary ► Rights are regarded as “inalienable” rather than “negotiable” BACK

Parliamentarianism ► Parliamentarianism results when parliament retains sovereignty and is not bound by courts or constitutions in the area of rights ► A statutory Bill of Rights that only allows courts to declare laws that contravene human rights and refer them back to parliament, retains the supremacy of parliament. It puts the onus on parliament to explain or amend the Bill ► A mixed approach, with no single Bill of Rights, retains a supreme role for parliament (except in the case of express and implied constitutional rights – which allow judiciary supremacy) ► Rights are viewed as “negotiable” rather that “inalienable” BACK

Criticisms Judicial Supremacy ► Places rights in the hands of unelected officials ► Prevents the legislatures (peoples’ representatives) from amended and controlling rights Parliamentarianism ► Executive dominance prevents parliament from protect rights from executive power ► Parliament can represent extreme views that might trample on rights BACK

Case Study 1 Like many countries, Australia is seeing a decline in its civil rights, with new laws being passed which the government considers necessary to combat the threat of terrorism. The Anti Terrorism Act 2005 allows for… Anti Terrorism Act 2005 Anti Terrorism Act 2005 ► The short-term detention of individuals (up to a fortnight), without charge, and without evidence. Individuals can be interrogated by Australia's security forces. Revealing that an individual is or has been detained or interrogated is a criminal offence. NEXT

Case Study 1 ► Almost unlimited restrictions on named individuals, including restrictions on association (including with one's lawyer), movement, possession of items (including those necessary to one's profession), wearing a tracking device, and attendance or non- attendance at particular locations at particular times. ► Restrictions on all citizens to express certain opinions, particularly those that express dissatisfaction with the government. This has been the topic of great concern by the media, where reporting of particular opinions may be considered seditious. great concern seditiousgreat concern seditious NEXT

Case Study 1 ► To recklessly provide funds to a potential terrorist. The person doesn't have to be a terrorist, only that the provider is reckless about the possibility that they might be. ► An increase in the powers granted to police in seeking information, and making it a criminal offence to reveal that such information has been sought. NEXT

Case Study 1 ► This law was introduced by the executive and pushed through parliament. Things to Consider… ► Has parliamentarianism protected human rights in this case? ► Are these laws “proportionate” to the terrorist threat? ► Are rights negotiable or inalienable in this case? ► Would a Bill of Rights and judicial supremacy have resulted in a different outcome? BACK

Case Study 2 The Migration Bill 2006 was designed to send all asylum seekers arriving in Australia by boat - even if they made it to the mainland - to offshore islands like Nauru for processing ► The Bill was introduced by the executive government ► It became clear that several members of the Government’s own party did not support the Bill on the grounds that it was against the rights of refugees and against international agreements to which Australia is a signatory NEXT

Case Study 2 ► When it came to vote for the Bill in the House of Representatives 3 members of the Government’s party crossed the floor to vote with the Opposition and 2 others abstained from voting (here is Petro Georgiou’s speech on the Bill). This was not sufficient to break the Government’s majority and the Bill passed the House here ► The Government majority in the Senate is only one senator. Therefore, one senator crossing the floor or 2 abstaining would defeat the Bill in the Senate NEXT

Case Study 2 ► Senator Judith Thoeth informed the Prime Minister that she would be voting against the Bill. ► Realising that the Bill would be defeated the PM decided not to introduce it not the Senate. The Bill was therefore dropped ► The PM has since said he has abandoned the legislation abandoned NEXT

Case Study 2 Things to Consider… ► Has parliamentarianism protected human rights in this case? ► Are these laws “proportionate” to the threat to Australia from refugees seeking asylum? BACK