Transcript Constitution
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 Federal PARLIAMENT The PM and MINISTERS The GOVERNOR-
GENERAL
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
The right to trial by jury (for serious federal offences)
s. 80 s. 116 s. 75(v) s. 117
Freedom of religion (though there’s never been a successful case), and it only applies to federal/Commonwealth laws – States are able to discriminate!) The right to court review of government decisions 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 Australia example, signs if an international human rights agreement, it is the Commonwealth government doing this – but the governments
some
of the State control 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
pass a law that overrules the State.
– 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 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 Federal PARLIAMENT The GOVERNOR-
GENERAL
The PM and MINISTERS
THE ROLES OF:
-The Constitution,
including division of powers and separation of powers
The HIGH COURT Federal PARLIAMENT The PM and
MINISTERS
The GOVERNOR-
GENERAL
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-
GENERAL 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 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 Migration Act
.
of the
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 them
.
of the government
stopped
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
Rights in the Constitution
CANNOT be taken away
(unless WE decide to)
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) INEFFECTIVE
Only a couple of our rights are actually written in the Constitution.
Having both State AND Federal governments causes problems for human rights.
1. It’s too complicated 2. There is a lot of “buck passing”
Parliament can still stop the High Court from being able to decide on certain cases about human rights.