THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
EVALUATE the effectiveness of Australian responses in promoting
and enforcing human rights
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
The Constitution
1. There are some specific sections of the
Constitution that recognise our human rights
2. The Division of Powers in the Constitution
affects our human rights
3. The Separation of Powers in the Constitution
ALSO affects our human rights
The HIGH COURT
The GOVERNORGENERAL
Federal PARLIAMENT
The PM and MINISTERS
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
A bit of Australian history…
This guy (Andrew Inglis Clark) was the guy who wrote the
first draft of Australia’s Constitution.
He really liked the US Bill of Rights, and thought that
Australia should have rights in OUR Constitution too
(because you can’t rely on always having “nice guys” in
parliament).
Some of the rights got in, but his original version had the
right of equal protection under the law (for everyone).
There was a big fight over this because the Premiers of
SOME States(*cough* WESTERN AUSTRALIA) SAID THEY
WANTED TO KEEP DISCRIMINATING AGAINST CHINESE
AND AFRICAN PEOPLE.
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
But despite this…
He still managed to get SOME rights CLEARLY WRITTEN INTO the Constitution
These are called
EXPRESS RIGHTS
s. 80
The right to trial by jury (for serious federal offences)
s. 116
Freedom of religion (though there’s never been a successful case), and it only applies to
federal/Commonwealth laws – States are able to discriminate!)
s. 75(v)
The right to court review of government decisions
s. 117
No discrimination based on your State
s. 51(xxxi) The right to acquisition of property on just terms
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
So, for example, if
Australia
signs
an
international
human
rights agreement, it is
the
Commonwealth
government doing this
– but the State
governments control
some of the areas
where those human
rights are involved too
(e.g. health)
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
Having both State AND Federal governments
causes problems for human rights.
1.It’s too complicated for most Australians to
understand their rights
1.There is a lot of “buck-passing” (the different
governments BLAME EACH OTHER for not
protecting people’s human rights)
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
Under international law, a country CANNOT use
these problems between State and Federal
governments as an excuse for not fully complying
with its treaty obligations.
In Australia, the Federal government has to
frequently consult with the State governments to
make sure ALL levels of government are fulfilling our
obligations (sometimes the Federal government even
passes a law to overrule a State that is being
stubborn, e.g. Toonen (1994))
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
Human rights can still BENEFIT from this wacky system though!
There’s nothing stopping individual States from having a ‘Charter of Rights’ (a
LIST of guaranteed rights), e.g. the Victorian Charter of Rights and
Responsibilities (2006); the Human Rights Act 2004 (ACT). These still don’t
apply to federal laws, and they are not in the Constitution (so future
parliaments can ignore or get rid of these Charters), but there have been
some positive outcomes from these State Charters.
States could legalise same-sex marriage, SMH, 2010 – TECHNICALLY, all of the
Commonwealth powers in s. 51 are held concurrently by the States. It’s just that if a
State decides to, for example, make their own money, the Commonwealth can choose to
pass a law that overrules the State.
So, States CAN pass marriage laws. In fact, since John Howard decided to define
marriage under federal law as being “between a man and a woman” in 2004,
theoretically the federal government can’t pass laws about gay marriage – only the
States can!
The NSW government even held an Inquiry into Same Sex Marriage in NSW (2013).
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
The HIGH COURT
The GOVERNORGENERAL
Federal PARLIAMENT
The PM and MINISTERS
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
The HIGH COURT
The GOVERNORGENERAL
Federal PARLIAMENT
The PM and
MINISTERS
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
The EXECUTIVE is supposed to be COMPLETELY INDEPENDENT from the other branches
Federal PARLIAMENT
The PM and
MINISTERS
Part of our Executive is inside the Legislature
(the PM and Ministers are in parliament)
The GOVERNOR- We do have an independent Governor-General, who is able to refuse to sign (give ‘Royal
Assent’ to) any law that breaches the human rights found in the Constitution
GENERAL
The HIGH COURT We do have an independent High Court.
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
The HIGH COURT
The High Court is able to INTERPRET the words of the Constitution
in order to “find” human rights.
Only when a case comes up where the lawyers are arguing about
what the words of the Constitution actually mean (the High Court
can’t just do this, like, on the weekend)
When the High Court interprets
the words of the Constitution to
mean that people in Australia have
certain rights, these are called…
rights
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
IMPLIED rights in the Constitution:
- Freedom of political communication (Australian Capital
Television v Commonwealth (1992))
- The right to vote (Roach v Electoral Commissioner (2007))
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
But parliament can still stop the High Court
from being able to decide on certain cases
about human rights.
e.g. Where we send asylum seekers
‘Human rights watchdog voices concern for asylum seeker children’
ABC News - The World Today (2012)
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
One of the “solutions” the government had for asylum seekers was to
send them to Malaysia without checking whether they’re actually
refugees or not. This was called the ‘Malaysia Solution’.
It was challenged in the High Court under Section 198A of the
Migration Act.
The High Court decided that the government was not
allowed to bring in the Malaysia Solution.
CASE NAME: M70/M106 v Minister for Immigration (2011)
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
This was a good thing for Human Rights:
- The Executive Arm of the government tried to
do something bad for human rights.
- The Judicial Arm of the government stopped
them.
But the government (the Executive, including the PM) didn’t like being
told they can’t do what they want…
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
So the government passed the Migration Legislation Amendment
(Regional Processing and Other Measures) Act 2012.
This law removed section 198A of the Migration Act – so the
government can’t get overruled by the High Court anymore!
The changes to the Migration Act gave more power to the Executive
branch of the government and less power to the High Court to review
cases.
This upset the Australian Human Rights Commission.
‘Human rights watchdog voices concern for asylum seeker children’
ABC News - The World Today (2012)
THE ROLES OF:
-The Constitution,
including division of
powers and separation
of powers
EVALUATE the effectiveness of Australian responses in promoting
and enforcing human rights
The Constitution
EFFECTIVE
INEFFECTIVE
Rights in the Constitution
CANNOT be taken away
(unless WE decide to)
Only a couple of our rights
are actually written in the
Constitution.
Having the High Court
separate from the
parliament is GOOD for
human rights because they
can make the “right”
decision instead of
whatever is popular for the
government (e.g. Roach v
Electoral Commissioner
(2007); M70/M106 (2011)
Having both State AND
Federal governments causes
problems for human rights.
1. It’s too complicated
2. There is a lot of “buckpassing”
Parliament can still stop the
High Court from being able
to decide on certain cases
about human rights.