Presentation Transcript

1. 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
2. The Constitution THE ROLES OF: 1. There are some specific sections of the Constitution that recognise our human rights The Constitution, including division of powers and separation of powers 2. The Division of Powers in the Constitution affects our human rights The HIGH COURT 3. The Separation of Powers in the Constitution ALSO affects our human rights The GOVERNOR- GENERAL Federal PARLIAMENT The PM and MINISTERS
3. THE ROLES OF: The Constitution, including division of powers and separation of powers A bit of Australian history… This guy (Andrew InglisClark) 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.
4. 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. 116Freedom 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
5. THE ROLES OF: The Constitution, including division of powersand 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)
6. THE ROLES OF: The Constitution, including division of powersand separation of powers Having both State AND Federal governments causes problems for human rights. It’s too complicated for most Australians to understand their rights There is a lot of “buck-passing” (the different governments BLAME EACH OTHER for not protecting people’s human rights)
7. THE ROLES OF: The Constitution, including division of powersand 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)) BUT
8. THE ROLES OF: The Constitution, including division of powersand separation of powers Human rights can still BENEFIT from this wacky system though! STATE Charters of Human Rights 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 heldconcurrently 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). Possible STATE gay marriage!
9. THE ROLES OF: The Constitution, including division of powers and separation of powers The HIGH COURT The GOVERNOR- GENERAL Federal PARLIAMENT The PM and MINISTERS
10. THE ROLES OF: The Constitution, including division of powers and separation of powers The HIGH COURT The GOVERNOR- GENERAL Federal PARLIAMENT The PM and MINISTERS
11. THE ROLES OF: The Constitution, including division of powers and separation of powers The EXECUTIVE is supposed to beCOMPLETELY INDEPENDENT from the other branches BUT Part of our Executive is inside the Legislature (the PM and Ministers are in parliament) Federal PARLIAMENT The PM and MINISTERS HOWEVER 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 The GOVERNOR- GENERAL AND The HIGH COURT We do have an independent High Court.
12. THE ROLES OF: The Constitution, including division of powers and separation of powers The HIGH COURT The High Court is able to INTERPRETthe words of the Constitution in order to “find” human rights. BUT 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… IMPLIEDrights
13. THE ROLES OF: The Constitution, including division of powers and separation of powers IMPLIED rightsin the Constitution: Freedom of political communication (Australian Capital Television v Commonwealth (1992)) The right to vote(Roach v Electoral Commissioner (2007))
14. 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 oncertain 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)
15. 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)
16. 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…
17. 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)
18. 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