ICC

International covenant on Civil and Political Rights (ICCPR)
-adopted by General Assembly in 1966
-came into force in 1976
-Article 17 directly implemented into statute law as Human Rights(Sexual Conduct) Act 1994 allowing consenting adults freedom of sex in private

Convention on the Elimination on all forms of Racial Discrimination (CERD)
-Introduced in 1969
-Committee on Elimination of Racial Discrimination established to monitor compliance
-Commonwealth passed Racial Discrimination Act 1975 in compliance

Convention Against Torture (CAT)
-Came to force in 1987
-Aus has not passed domestic legislation
-The Crimes' (torture) Act 1988 was passed with references to acts of torture outside of Aus

Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)
-Forced in 1981
-Sex Discrimination Act 1984

Convention on Rights of the Child (CRC)
-Came to force in 1989
-Family Law Reform Act 1995 passed to comply regarding child rights on the breakdown of parents' relationship

International Covenant on Economic, Social and Cultural Rights
-Set up committee monitoring compliance
-No specific legislation

* * *

Aus has been criticized as little legislation has been passed by aus responds by saying it has very good human right records and common law together with parliamentary democracy adequately protects human rights identified in the treaties.

* * *

Arguments for use of HR Trearties:

• Provision of consistency between member-states
• Provision of leadership to other nations
• Setting of standards and provision regarding human rights
• Universally protect human rights as people move from country to country
• Mechanism to monitor compliance by member states and reports to committees allows issues of violations to be addressed

Criticisms

• Interferes with country's sovereignty
  
• Committees set up are not courts, appearing to lack impartiality and objectivity
• If commonwealth legislated for every HR under external affairs power they are encroaching on state's residual power
• Lack of consistency in criticisms
• Aus govern = directly accountable to people, limited in degree which they can respond to all provisions of treaty

***

International Court of Justice (ICJ)

-Settle disputes brought to it by member-states in accordance with international law
-Give advisory opinions on questions of law internationally

**Hostage taking, asylum seekers' rights, territorial sovereignty, maritime borders

International Criminal Court (ICC)

-Investigates serios international crimes
-Genocide (Killing/causing serious harm to group of people with intention of destroying them)
-War crimes (breachs of Geneva Convention 1949) that apply internationally and domestically.
--Crimes against humanity (widespread and systematic attacks against civilian population

* * *

What are the roles of international treaties in Australian law? (8 marks)





I. Improve human rights protection for all Australians, set a new benchmark for human right protection in Australia.



· International covenant on Civil and Political Rights (ICCPR).

· Convention on the Elimination of all forms of racial discrimination (CERD).

· Convention Against Torture (CAT).

· Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).

· Convention on Rights of the Child (CRC).



II. Additional guidelines to assist judges in interpreting statutes. Additional source of law to assist judges in interpreting statutes.



· International treaties signed by Australia act as additional guidelines for judges when interpreting statutes. This will ensure judges keep up to new evolving international standards when it comes to judicial law making.

· Additional source of law on top of domestic law. This ensures that domestic laws in Australia are constantly being ‘updated’ by new sources of laws if treaties signed by the Executive are passed by the Legislature (Parliament). This ensures that a domestic law in Australia does not remain stagnant and evolve according to new international norms.



Example: Enacting the Consequential Amendments Act 2002 (Cth) which incorporated offence of genocide into domestic Australian law.



Teoh’s Case * elaborate on the applicability. Note: the doctrine of Parliamentary Supremacy or Parliamentary Sovereignty against the judges decision in Teoh’s case.







III. Influence Australia’s trade policies and trade legislation. Facilitate enactment of Australian laws to improve Australia’s economy and international trade with other countries.



-US – Australia Free Trade Agreement: refer to page 125 of the textbook.

-Other International Trade Treaties.

· Facilitate safer inter-state relations

· Enhance international cooperation and understanding with other Australian trading partners.

· Trade treaties such as WTO Agreements and the United Nations multilateral treaties are shaping the way trade is conducted. Adopting these treaties sends a signal to international investors and trade operators that a country is serious about creating a secure climate for business.



IV. Affect Australian laws and policies on security and defense in including Australian criminal laws. (for example relating to terrorism laws *refer to example given in Lesson 33, referral of powers on new codification of criminal laws relating to terrorism).

· Improving the defense in Australia, the region and the world in general



· Defense Agreement between the government of Australia and the government of the Republic of Singapore concerning the use of Shoalwater Bay training area (Queensland) 2005.



· Australia’s role in Iraq and Afghanistan.





V. Preserve international stability and act as a guideline to resolve international territorial disputes, law of the sea.



· United Nations Law of the Sea (UNCLOS) (refer to Lesson 34)







VI. Extradition treaties, ensure criminals are prosecuted.

· signatory to the Geneva Convention 1949

· Enacting the Consequential Amendments Act 2002 (Cth) which incorporated offence of genocide into domestic Australian law

· Relationship with the ICC

Federation

Federal System -
System of government in which a national government and state government have their own independent legal systems and law making powers

Federation -
Forming of a nation by union of states which give up some powers and responsibility to national government.

Stages

1)Pre-convention stage
involvement in pre-federation colonial conferences and agreement

2)Australasian conventions
participation in two formal australasian conventions to draft the constitution

3)Colonial ratifications
passing of enabling bills to conduct colonial referendums to get the approval of the colonists for the federation proposal

4)British approval
negotiation with britist government to have them sponcor the bill through the Imperial Government

5)Proclaimation and Inauguration
1 january 1901

1840s-1901


Reasons -

institute free interstate trade and national defense arrangements

Restricted immigration policy
industrial relations systems to resolve interstate disputes
national approach to communication networks

Amending the Constitution

Section 128 - Altering the Constitution

1)Consultation
2)Drafting
3)Parliament Stage
4)Referendum Stage
5)Post Referendum

Reasons for failure:
1)Bipartisan support
(non-labor parties reluctant to co-operate)

2)State's power
-One proposal in 1988 referendum failed as states were opposed to Federal Government being given financial grants directly to local government councils.
-Erosion of state authority

3)Dual criteria
-Organic document capable of change

4)Miscellaneous reasons
-Fear of big government
-General misunderstanding of complex issues
-LEave things as they are
-Government doesnt make it simple

Aboriginals - List of Acts/Constitution Shit/HR Conventions

Native Title Act 1993
-Established National Native Title Tribunal
-Prescribed necessary criteria to approve applications
-Federal court gives effects

1967 Referendum!
-Remove perception of discrimination
-Meet approved moral standards of human rights
-Allow commonwealth to make national laws about indigenous affairs

Section 51 (xxvi)
'other then the aboriginal race in any state'
-Making indigenous affairs a prohibited power of commonwealth and residual power

Section 127
'where the population of the aboriginal natives shall not be counted'
-Removal : allowing same citizen rights for them like other Australians

Federal Statutes

Racial Discrimination Act 1975
-passed under obligations of International Convention on the Elimination of All Forms of Racial Discrimination
-Makes discrimination based on color, national or ethic origin unlawful.

Racial Hatred Act 1995
Amends and expands the coverage of RDA
-Making it unlawful to offend, insult, humiliate or intimidate

Human Rights and Equal Opportunity Commission Act 1986
-Created the commission now known as Australian Human Rights Commission
-Administers RDA and RHA


Council for Aboriginal Reconcilitation Act 1991
-Established the Council for Aboriginal Reconcilitation to build better communication and understanding.
-Aims to address issues such as cultural recognition and shared ownership or history

Aboriginal and Torres Strait Islander Heritage Protection Act 1984
-Protects and preserves significant parts of aboriginal people's cultural heritage and complement state acts

State Statutes

Bad

1911 South Australia : Aborigines Act
Power to segregate Aboriginal people onto reserves/power to arrest

1923 South Australia Aborigines (Training for children) Act

Good

Equal Opportunity Act 1984
-Consolidated a few discrimination acts including South Australian Racial Discrimination Act 1976
-Administered by State Equal Opportunity Commissioner
-Aggrived persons can complain to Equal Opportunity Tribunal

Racial Vilification Act 1996
-Allows civil claims to be made for damages, as well as criminal prosecutions of companies and individuals.
-Administered by SA Equal Opportunity Tribunal(EOT)

Aboriginal Heritage Act 1988
-Committee includes indigenous representatives
-Advises minister to protect/preserve sacred Aboriginal sites, objects or remains
-A Register of Aboriginal Sites and Objects maintained by Minister

Protection of Aboriginal Rights

Problems with courts -

1)Lack of Aboriginal cultural awareness.
-Aboriginal awareness training

2)Language barriers.
-Interpreters.

3)Customs (avoidance relationship etc)
Tale into account customary law.

Avoidance of eye contact, family members, naming the dead.

Proposals already made:

Employment of Aboriginal court facilitators by the Department of Justice

Aboriginal Court Day/Nunga Court in Port Adelaide, South Australia
-Deals only with aboriginal people who plead guilty to an offence
-Magistrate sits off bench, more at eye-level with offender
-Aboriinal justice officer/senior Aboriginal person advises on cultural and community matters
-Offender sits at bar table with lawyer and a relative sit with them
-Family/friends encouraged to attend

Representative Government

(indirect democracy)

Australian political system is one where people elect people to represent them, hence they are accountable and thus, a system of representative government.

Key Features:

1)Rule of law
Everyone equal, no one above law.

2)Universal Franchise
Everyone allowed to vote regardless of whatever shit, thus representatives accountable for everyone.

3)One Vote/One Value
Secrecy of ballot

4)Salaried MPs
So working class people can have a chance to run.

5)Parliamentary Privilege
Full and frank debate in parliament.

6)Right to protest, associate, freedom of association
Join political parties/ protest against.

7)Open parliamentary debates
Everyone can watch.

8)Separation of powers
Check and balance/ prevent abuse

Separation of Powers

-Governing Aus needs a big deal of power
-Divided LEJ
-Checks and balances each other
-Prevents abuse of power/dictatorship


Doctrine:
-LEJ separated and independent of each other without interference.
-Independence of judiciary from L & E, judges make decisions without influence.
-Reduces changes of AOP/dictatorship.

Overlaps:

L & J
Legislature makes new laws for establishment of new Courts and Judiciary interprets acts of Parliament.

E&J
Executive gives approval for new tribunals, appointment of judges and judiciary is called to interpret meaning of regulations made by E.

L&E
Legislature scrutinizes action of ministers during Parliamentary sessions, executive is held responsible for laws that are brought to parliament.

Division of Power

is the division of lawmaking power of the Parliament. The commonwealth and state parliaments can only make laws within their powers described in the constitution or the law would be declared 'Ultra Vires'. Essential to prevent overlapping of power.

Specific powers-

Exclusive Powers -
Only the Commonwealth can exercise, requires national approach.
e.g. National defense, external tariff, printing money

Concurrent Powers-
Commonwealth and State can exercise. Most areas in Section51.
e.g. Corporations, trade, taxation.

Prohibited Powers -
1)General Prohibited
2)Commonwealth Prohibited
3)State Prohibited

Residual Powers-
Powers not listed, retained by state.
e.g. Health transport, civil, criminal law, education. (Not listed in State Constitution)

* * * * * * * * * *

Exclusive Powers

• S52 Federal property & federal public service
• S71 Creation of Federal Courts
• S51(iv) borrowing money on public credit
• S51(vi) and S114 the provision of armed force
• S51(xii) and S115 currency, coinage and legal tender

Concurrent Powers

• S51(i) trade and commerce with other countries & among states
• S51(ii) taxation but not to discriminate between States or parts of States.
• S51(v) postal, telegraphic, telephonic and other like services.
• S51(xx) Corporation powers
• S51(xxi) Marriage

Prohibited Powers

• S116 Federal Parliament is prohibited to make laws about religion.
• S92 Trade between states is to be free, without tariff.
• S51(ii) taxation must not discriminate
• S51 (xxxi) cannot change the Constitution by legislation, only by referendum.

Residual Powers

• Criminal matters which are not Federal offences, civil matters, environment, women and children, housing, education, transport, public health.
  

Responsible Government

Legislative Scrutinizes Executive
1)Executive government is accountable.
2)Ensures they act in ways that are approved by Australians that voted them into power.
3)PM must pass supply bill.
4)'Question Time' - Parliament (L) can ask anything about the E's actions.


Government-General bound by Executive Advice
Real power lies in hands of PM, as long as :
1)PM commands majority of HOR
2)PM can pass supply bill
3)PM does things that are consistent with the constitution

Gough Whitlam 1975, failed to pass supply bill.


House Of Senate checks and balances House of Representatives
Senate(Upper house/House of review)

Section 53 - Senate doesn't have to pass HOR's supply bill(Hostile Senate), but by convention is expected.

Rule Of Law

Supremacy of the Constitution -
All entities - government, person, organizations - are bound by constitutional law.


Equality before the Law -
Racial Discrimination Act 1975(Cth)
Sex Discrimination Act 1984 (Cth)
Equal Opportunities Act 1984 (SA)


Natural Justice & Rights of Individuals -
Everyone retains their fundamental rights,

2 elements :
1)Independence of judiciary
2)Fair trial

Functions of Law

Social Cohesion : Bonds that bring people together in a diverse community.

[V]alues of Society - Proving laws which identify and reinforce the social, moral, economic, religious and political values of society. Eg : Doctrine of unite (women inferior), doctrine of terra nullius to take aboriginal land.

[A]cceptable Standards of Conduct - By setting ASOC and sanctions for unacceptable conduct. Impose legal consequences for breach.

[D]ispute Resolution Mechanisms - Establishing dispute settle mechanisms to resolve disputes between individuals, or between individuals and the State. (LEJ)

[E]volving Society Requires Changing Laws - Acknowledging the need to change laws in response to changing times and evolving societies.

EG : Technological changes - ATM fraud : Criminal Law Consolidation Act 1935 amended - to make it unlawful to manipulate a machine for personal gain.

[R]ights of Individuals and Groups - Establishing laws that acknowledge and uphold the rights of individuals and groups, while promoting the welfare of society as a whole.

EG: Individual human rights (Marriage Act 1961: Freedom to choose own spouse)

Social Progress : The changing of society towards the ideal.

[E]ducation - Young australians to be educated as they are next workforce.

[Y]outh - Support the social and intellectual development of young Australians as they are future leaders.

[H]ealth -Preventation of contagious diseases, immunization jabs and etc.

[C]ommerce and Environment - Do not cause long term environmental harm.

Eg: fishing regulation