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Summary Notes: Young Offenders 10/23/2014 6:10:00 PM

Historical Documents:
- Magna Carta (1215) -> Limited the kings power. Every citizen has the right to
freedom + Equality before the law
- English Bill of rights (1688) -> Restricted the King from raising an army + Levy
Taxes without the consent of the parliament -> Transferred power from monarchy to
the parliament
- Universal declaration of Human rights (1948) -> First universal declaration
written by the United nations. Includes 30 articles covering essential rights e.g. Right
to life, liberty + religion. Part of the international customary law.
- Twin Covenants:
1. International covenant on Civil and Political rights (ICCPR) -> equality
between men and women + Right to life etc..
2. International covenant on Economic and Cultural rights (ICESCR) -> Fair
wages + Right for adequate food, clothing and housing etc..

Outline how Human rights have changed overtime:
-Events:
i. Universal Education -> NSW Education Act 1880 -> Compulsory for Australians to
attend school from ages 6-15
ii. Universal Suffrage -> Right to vote (1902 Woman)
iii. Trade unionism -> Declared right under the UDHR Protecting workers against
abuse by employers + International Labor organization
iv. Abolition of slavery -> Slavery convention (1926) + Twin Covenants

International Rights:

Environmental and peace rights
Protects rights of future generations to the same level of environmental quality as
the present generation
**Stockholm Declaration (1972) + Rio Declaration (1992)**

Collective Rights
- Received by people as members of a group. Right of people to choose their own
form of government and ability of people to determine their future.




HUMAN RIGHTS AUSTRALIA:
_________________________________________________________

Recognition of Human Rights in Australia
- Statute law + constitution (Expressed Rights) :
- **Racial Discrimination act 1977 + Sexual discrimination act 1984**
- Australian Human rights commission Funded by government but is independent
it receives ad investigates complaints into discrimination breaches + Promotes
public awareness about human rights

Bill of Rights Australia:
- - Bill of rights aim to restrict the power of future governments to reduce or
infringe certain rights

Advantage Disadvantage
- Meet international expectations of
protecting human rights
- Courts have more power in
interpreting laws
- Human rights would be more
accessible + Understandable
- Statute laws can be easily amended
- Re-dresses the importance of
Human right protections
- Economic cost

Two major human rights document and explain their contribution to the
develop of human rights

Universal declaration of Human rights (1948)

- -Adopted by the UN identifying 30 related articles in regards to human rights.
- -However, through the concept of state sovereignty, the declaration can only act
as a Jus Cogen (International Norm). -> Difficult to make states to legally comply
with the declaration. (Soft law).
- -States have to ratify the declaration into domestic law





International covenant on Civil and political rights + International
covenant on Economic, Social, and cultural rights (1976)

- Acts as an international treaty that promotes and enforces human rights.
- Agreements would be made by states ensuring the alienable rights for human
beings.
- Sanctions could be imposed by the UN Security council through global
cooperation to ensure conflict states would ratify the conventions.
** State sovereignty** -> Still makes human rights a perplexing concept

Incorporation of Human rights into domestic law
When a nation signs a treaty, it is presumed that they act in the spirit of the
treaty but its not directly binding. (State Sovereignty)
Treaty will have to be ratified by the state into domestic law before it becomes
binding and enforceable
Two different systems:
1. Monist system: Enforceable in domestic law once signed i.e. France +
Netherlands
2. Dualist system: Rights to obligations of the treaty will need to be in
cooperated into Australian Law i.e. Australia

The roles of:
Constitution
o Protects civil and political rights from abuse by the government.
o Source of some human rights such as express and implied rights.
o Lays down the system of the Australian government to which human rights are
recognized i.e. Separation and division of powers.
o Can become outdated because it takes a long process to change-referendum.
o Express rights- constitutional articles that directly address human rights. i.e. the
right to vote (s.24), the right to freedom of movement (s.92)
o Implied rights- are the civil and political freedoms that do not necessarily underline
the actual words of the constitution but are not themselves expressly stated directly
in the constitution. i.e. Nationwide news Pty Ltd v Wills 1992 : Freedom of political
communication
o Separation of powers -allows for each arm of the government to be held to
account and so offers protection of Human Rights abuse by one arm of the
government.

CONSTITUTION

Legislature Executive (gov and Judiciary
(Parliament) (administrative departments) (court systems)


Exclusive con- Residual
(Cth) current (State)


Common law
o Through rulings on cases judges can protect and restrict HRs.
o i.e. Mabo Case 1992- overturned Terra Nullius and upheld collective land rights.
o Dietrich v the Queen 1992- no right to legal aid.
o Can be overturned by parliament. Does not offer absolute protection as they are not
fixed.

Statute Law
o Also not fixed, hence can be removed.
o Set up administrative bodies i.e. the Australian Human Rights Commission.
o Legislations have been passed and implemented in response to international human
rights legislation. These are called direct statutory responses.
o i.e. Disability Discrimination Act 1992 (Cth) ICCPR, ICESCR
o Human rights (sexual conduct) Act 1994 (Cth)- ICCPR
o Some statutes protect indirectly such as:
o Anti discrimination Act 1991 (Cth)

Courts and Tribunals
o Courts have been using international law as authority in the development of common
law. Hence they develop common law.
o Has the power to set binding precedents on other courts or to overturn state or
commonwealth legislation.
o Administrative tribunals are formed by Statute in order to restrain unlawful actions
and to apply human rights standards to the actions of the government
o A particular tribunal is the Australian Human Rights Commission.
o It has the role of:
o Receiving and investigate complaints into breaches of HR.
o Give advice to government and parliament
Contemporary Issue: Child soldiers

- Human rights is protected by the UN Peace keeping forces, sanctions, agencies +
Commissions
- An international breach of human rights can be seen in the use of Child soldiers.
- Breaches the right to liberty and security of a person with childrens being forcibly
recruited into armed forces
- The right to educating (Under convection of human rights should be available to
children at a primary level) is also being breached.
- They are exposed to high levels of danger and abuse: 2007 200,000-300,000 child
soldiers
- Violations against:
1. Convention on the rights of child (1989)
2. The Geneva convections additional protocols (1977)
- Summarized as: Enlisting children less than the age of 15 into armed forces shall
be taken by parties to ensure that members of their armed forces under the age of
15 does not take direct part in hostilities
- INTERNATIONAL MEASURES:

ICC: Responsible to prosecute humanitarian, genocide and war crimes
e.g. Appeals chamber in sierra Leone 2004 -> Hinga Norman Recruitment of child
soldiers was a criminal act against the international community hence he was
indicted on march 2003.
- NON-LEGAL MEASURES:
Unicef: tried to address the issue of child soldiers through raising global awareness
providing pressure and aid + Rehabilitating soldiers through counseling programs >
Rwanda assisted 70,000 young people