#1HOW HUMAN RIGHTS ARE PROTECTED IN AUSTRALIA Human Rights in Australia and Beyond Politics and Law Teacher Professional Learning Day: 4 December 2015 Session title: The Ways Human Rights are Protected in Australia, including in the Constitution, Common Law, Statutory Rights and Charter of Rights such as the Charter of Human Rights and Responsibilities Act 2006 (Victoria) and the Human Rights Act 2004 (Australian Capital Territory) Presenter: Mr Greg McIntyre SC, John Toohey Chambers JOHN TOOHEY CHAMBERS O The Law Society. OF WESTERN AUSTRALIA The voice of the legal profession in Western Australia#2Rule of Law • Magna Carta 1215 (45 confirmations) Ch 29 - – Every freeperson has an inherent individual right to his life, liberty, property and citizenship. - Individual rights must always yield to the - necessities of the general welfare at the will of the state ― The law of the land is the only mode by which the State can declare its will Supremacy of law over arbitrary power - Equality before the law – without exemption#3The Great Charter N Monique lactic fedent de M. Fold fo ALANA SS close and relat ELAGA-364-Bit d 2 fmport widen they Dk to offatt, da d Wilde St. till dat dit - Med det en per deifur audio fide sitios this for für d be found Als er mange p Villagok (2 dand dult than that the end while de de de de de mindenthate ་ང་ཡི་གན་པ་་་་་བརྡ་པའི་བཞི་ཅ་གྱིས MAGNA CARTA 1215 XXIX. No Freeman shall be taken or imprisoned or disseised of his freehold, liberties or free customs or outlawed or exiled or in any way ruined...., except by the lawful judgement of his peers or by the law of the land. To no one will we sell, to no one will we deny or delay right or justice.#4● ● English Bill of Rights 1689 Limits power of monarch (William & Mary) Regular Parliaments Free elections Freedom of speech in Parliament Prohibition on cruel and inhuman punishment Liberty of Protestants to have arms for defence within the Rule of Law Lemprion ab eo mbled Zax chute force au fly art free Peatme ve vp matet For you're of our done Ce- int presente Most montes one fugen de the Sam and Mary, but proper prisons in the jeet! Solatoñou in er ist bercarte the one by the of distance sease Codges and Maine and even sur Saves without other and preserved lates fumély vehi PRANATIOer to the aid o and candies to it out the Great Seale for ever goat of Cossioners De levering money for pretense of com Parliament y saciun without content of land Souldlord rear to se at the same fine was aut impleves freecome of Election of Parliament 2e pouring#5· Separation of Powers Ch I - Parliament Ch II - Executive Ch III - Judiciary • Power to make law not subject Magna Carta, English Bill of Rights or international law • Delegated legislation Subject to Supply Police Conclusive decision on a controversy re rights, liberty or property#6Commonwealth Constitutional Rights • . Right to vote, s 41 - 'adult' (21) - Commonwealth Franchise Act 1902 Acquisition of property on just terms, s 51(xxxi) - Wartime - Tasmanian Dams NT intervention - Trial by jury, s 80 - if by indictment - not contempt - not service tribunals Freedom of interstate trade commerce and intercourse, 92. discriminatory & protectionist not incidental to appropriate proportionate legitimate State objective Freedom of religion, s 116 - no Commonwealth laws - establishing - imposing - prohibiting or qualification for office - JW's: not exempt from ordinary law - Lebanese Moslem Assoc v MIEA - No discrimination between residents of States, s 117 - Street v Qld Bar Assoc - intent to practice in Qld - 12 m residency; Goryl v Greyhound - residents more generous MV cpo Implied freedom of political communication law not reasonably appropriate and adapted to legitimate end of representative government - deafamation defence#7● ● . Common Law rights Property rights: Mabo Presumption against retrospectivity Fair trial: Dietrich Burden of proof - presumption of innocence Privilege against self-incrimination - Cp Parliament and Royal Commissions Legal professional privilege Appeal rights Procedural fairness - right to a hearing & apprehended bias Presumption against delegation · Defamation ● Executive immunity - Koowarta#8. • Charter of Human Rights and Responsibilities Act 2006 (Vic) 9.Right to life 10. Protection from torture and cruel, inhuman or degrading treatment • 11. Freedom from forced work • 12. Freedom of movement • 13. Privacy and reputation • 14. Freedom of thought, conscience, religion and belief 15. Freedom of expression • 16. Peaceful assembly and freedom of association • 17. Protection of families and children 18. Taking part in public life • 19. Cultural rights • 20. Property rights • 21. Right to liberty and security of person • 22. Humane treatment when deprived of liberty • 23. Children in the criminal process • 24. Fair hearing • 25. Rights in criminal proceedings 26. Right not to be tried or punished more than once 27. Retrospective criminal laws#9Human Rights Act 2004 (ACT) PART 3--CIVIL AND POLITICAL RIGHTS 8. Recognition and equality before the law 9. Right to life 10. Protection from torture and cruel, inhuman or degrading treatment etc 11. Protection of the family and children 12. Privacy and reputation 13. Freedom of movement 14. Freedom of thought, conscience, religion and belief 15. Peaceful assembly and freedom of association 16. Freedom of expression 17. Taking part in public life 18. Right to liberty and security of person 19. Humane treatment when deprived of liberty 20. Children in the criminal process 21. Fair trial 22. Rights in criminal proceedings 23. Compensation for wrongful conviction 24. Right not to be tried or punished more than once 25. Retrospective criminal laws 26. Freedom from forced work 27. Rights of minorities PART 3A--ECONOMIC, SOCIAL AND CULTURAL RIGHTS 27A. Right to education#10● . Human Rights Act mechanisms (Victoria and ACT) - Applies to public authorities acting administratively – not judicial or parliamentary functions - exemptions Parole Board • Statement of Compatibility - how & why law limits rights ● . Over-ride Declaration by Parliament Ombudsman investigation Commission - education, reporting, reviewing, and intervening in Court Only subsidiary legal argument in Court Preferred interpretation where ambiguous Supreme Court Declaration of Inconsistent Interpretation - Minister to re-visit#11• • Australian Human Rights Commission Act 1986 International Covenant on Civil and Political Rights (ICCPR) Convention Concerning Discrimination in Respect of Employment and Occupation (ILO 111) • Convention on the Rights of Persons with Disabilities • Convention on the Rights of the Child . Declaration of the Rights of the Child • Declaration on the Rights of Disabled Persons • Declaration on the Rights of Mentally Retarded Persons, and • Declaration on the Elimination of All Forms of Intolerance and of . • . • Discrimination Based on Religion or Belief Native Title Act, 1993 - monitor the human rights of Indigenous people. Age Discrimination Act 2004 Disability Discrimination Act 1992 Racial Discrimination Act 1975 Sex Discrimination Act 1984#12Commonwealth processes Education Investigation & Reports to Minister eg Children in Detention • Intervention in Court proceedings eg Clark v Nationwide ● News; Bropho v WA Complaint • Conciliation & Certificate of termination • Federal Court ― Interim injunction - - - Determination of breach#13Fair Work Act 2009 Discrimination: - - - - - - race, colour, sex, sexual orientation, age, - physical or mental disability, marital status, family or carer responsibilities, pregnancy, - religion, political opinion, national extraction, and social origin. Discrimination, in employment: - - - Dismissal pay or leave - Changing job - Treating differently - not hiring - different (and unfair) terms and conditions#14• State & Territory Discrimination legislation - Australian Capital Territory – Discrimination Act 1991 New South Wales - Anti-Discrimination Act 1977 Northern Territory - Anti-Discrimination Act 1996 • Queensland - Anti-Discrimination Act 1991 • South Australia - Equal Opportunity Act 1984 Tasmania - Anti-Discrimination Act 1998 Victoria - Equal Opportunity Act 2010 • Western Australia - Equal Opportunity Act 1984.#15Equal Opportunity Act 1984 (WA) Grounds of Discrimination • sex, sexual orientation (including by association) marital status, pregnancy, breastfeeding race religious or political conviction age (including by association) impairment (including by association) family responsibility or family status gender history publication of relevant details on Fines Enforcement Registrar's website Areas covered • Employment • Applicants • • • commission agents contract workers Partnerships professional or trade organisations qualifying bodies employment agencies ● application forms • Advertisements • Education • access to places and vehicles provision of goods, services and facilities accommodation, clubs, and land