8462legal Studies Unit 2.docx

LEGAL STUDIES UNIT 2 OUTCOME 4 HUMAN RIGHTS Ways Human Rights are protected in Australia  No prohibitions  Constitution  Statute Law  Common Law Roach v Electoral Commissioner (2007) Key issue: In 2006 any prisoner serving a full-time prison sentence, no matter what length, was forbidden to vote in elections for the Senate and House of Representatives. Roach argued that the 2006 amendments to the Commonwealth Electoral Act 1918 breached the Constitution and her right to vote. Outcome: The High Court ruled the 2006 amendment unconstitutional and invalid and the 3+ year rule was reintroduced. Roach still couldn’t vote but over 8000 prisoners were given back the right. Dietrich v The Queen (1992) Key issue: Olaf Dietrich was arrested on a number of drug charges. He was unable to afford legal representation. He argued that he had a right to a fair trial and a right to have counsel provided at the expense of the public if he was unable to afford such representation. Outcome: The High Court found that when a person is unrepresented it may lead to an unfair trial. A judge must now adjourn a case to allow the accused to obtain legal representation. There is a right to have it provided at public expense. Mabo v Queensland (No.2) (1992) Key Issue: the High Court needed to consider whether the people of the Murray Islands were entitled to Native Title Outcome: The High Court held that the Torres Strait Islanders Occupying the land in question owned it under the form of a native title. The High Court ensured that the outcome of this case did not apply solely to the plaintiff’s land. The decision also applied to land on the mainland of Australia, provided the Indigenous people could prove their right to land. What the Merriam people could prove that others couldn’t The Merriam people could prove that they were not disturbed by European settlement and maintained their link to their land. Their laws also allowed them to own land Native Title Act 1993 The Native Title Act 1993 upheld native title, tried to safeguard existing freehold and leasehold titles, and allowed for compensation to be paid where native title had been extinguished. Application Conditions: Any person making a claim must show the following:  They are part of an Indigenous Australian group that has held traditional rights since before 1788  Their group has continued to occupy the land or maintained their traditional links with it since 1788  Native title has not been extinguished in some other way; for example, by the Crown giving the title to the land to someone else Wik and Thayorre Issue: The Wik and Thayorre people of Cape York asserted that pastoral leases could coexist with native title Outcome: Native title holders and pastoralists have to resolve disputes about land use in a way that recognises the rights of both traditional owners and leaseholders. Terra Nullius: The land was regarded as an empty land and thus belonged to no one.

Expressed Rights: The right to:  Freedom of religion  Freedom of interstate trade and commerce  Freedom from discrimination on the basis of a person’s state of residence  That the Commonwealth must provide ‘just terms’ when acquiring property  The right to a jury trial for indictable Commonwealth offences Implied Right:  The right to freedom of political communication Not clearly stated in the Constitution, but interpreted as one by the High Court Legislation that protects human rights  Racial Discrimination Act 1975  Sex Discrimination Act 1984

Victorian Charter of Human Rights and Responsibilities Purpose: The charter sets out rights, freedoms and responsibilities Rights: Freedom, respect, quality and dignity Human Rights: those basic rights and freedoms to which all humans are entitled. These rights include the rights to life and liberty, freedom of thought and expression, and equality before the law Structural Protections:  Representative Government: must represent the views and wishes of the majority of votes, if they don’t they will be voted out  Responsible Government: answerable and accountable for their actions to their party, parliament and voters  Separation of Powers:  Legislative (Parliament) – make the law  Executive (Governor General and ministers) – administer the law  Judicial (courts) – apply the law