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Focus question 3: Where have Australians' human rights come from and how are they protected?

Teaching and learning activities

Activity 1: Rights defined in the Australian Constitution ESL Activity 1
Activity 2: Acts of Parliament - case studies ESL Activity 2
Activity 3: Court decisions - case study ESL Activity 3
Activity 4: Amnesty International and Councils for Civil Liberties ESL Activity 4
Activity 5: Investigating democratic rights in Australia - case study ESL Activity 5
Activity 6: Applying a Bill of Rights ESL Activity 6
Assessment task ESL Assessment task
Assessment criteria  

Introduction

Australia has one of the best human rights records of any nation in the world. Where has this protection of human rights in Australian law come from?

Human rights in Australia could be legally established in a number of different ways:

  • through the Constitution of the Commonwealth (for all Australians), or the constitutions of the States (for the citizens of those States)
  • through Commonwealth, State or Territory Acts of Parliament
  • through a Bill of Rights, a special Act of Parliament which specifically sets out rights
  • through decisions in courts over time.

Which of these are the most important sources of human rights in Australia?

Australia does not have a Bill of Rights, so this cannot be a source of human rights protection. (But many people think we should have one - this is discussed later, in Activity 6.)

Activity 1: Rights defined in the Australian Constitution

Constitutions

The constitution is a document which sets out the system of government. The Australian Constitution applies to all Australians. A State constitution applies only to the parliament of that State. So the emphasis here will be on the Australian Constitution, covering all Australians.

Look at the following summary of several sections of the Australian Constitution. They explicitly establish rights and cannot be changed except by a referendum - a popular vote on a specific proposal to change the Constitution.

The rights guaranteed by the Australian Constitution are:

  • compensation for compulsory acquisition of property by the Commonwealth (Section 51 (xxxi))
  • trial by jury for serious offences against Commonwealth law (Section 80)
  • freedom of religion (Section 116)
  • freedom from discrimination on the basis of State residence (Section 117).

1a Look at the following situations. Are people's rights in them protected under the Constitution? Draw up a table like the following to summarise your answers:

Table 1 Constitutional Rights

Situation Relevant section of the Constitution Your decision: Could it be done? (Yes or No) Reasons
       
       
       
       

Situation

  1. The Commonwealth Parliament abolishes trial by jury in Commonwealth cases.
  2. The Commonwealth Parliament decides that Buddhism will be adopted as the official Australian religion.
  3. The Commonwealth Parliament provides funding to religious schools.
  4. The Commonwealth Government wants to take over your house, to expand an airport. They offer you the market price for the house.
  5. The Commonwealth Parliament changes trial by jury in Commonwealth cases from unanimous verdict to majority verdict.
  6. The Commonwealth Parliament wants to take away the right of a group of Aboriginal people to live on land they have traditionally been associated with. The Commonwealth offers a market price for the land.

Compare your answers with those in the Teacher Notes.

1b Would you say the Australian Constitution is a major source of your everyday human rights?

Activity 2: Acts of Parliament - case studies

An Act of Parliament might include a human right as part of its content. For example, the Commonwealth's Disability Discrimination Act 1992 establishes the right of people with physical disabilities to expect to be treated like other people in the same position and imposes an obligation on people (such as employers) to create conditions for that to happen.

Case study 1

Peter is a student in your class. A year ago he was in an accident and now needs a wheelchair to be mobile. Your school is planning a graduation ceremony for your year. Peter is told that he will not be able to go on stage with the rest of you because there is no wheelchair access. He can, however, be given his graduation certificate in another part of the hall. Peter objects, and says that the Disability Discrimination Act establishes his right to be able to be presented with his certificate in exactly the same circumstances and ceremony as everyone else in his class.

2a What should the school do? Discuss, and record your decision. Your teacher will tell you what the answer is.

2b Do you think this is a good and appropriate decision? Discuss your reasons.

Racial Discrimination Act 1975

The first page of Racial Discrimination Act 1975 (Cwlth)

Commonwealth of Australia copyright reproduced by permission.

Power of Acts of Parliament

An Act of Parliament can be used to adopt or accept in Australia the obligations set out in the United Nations Universal Declaration of Human Rights, and make them law. You will find the principles of the Declaration spread though several Commonwealth Acts of Parliament, such as the Sex Discrimination Act, Racial Discrimination Act, Disability Discrimination Act, Privacy Act, and many others.

An Act of Parliament can also be used to create bodies which can help to enforce these rights, such as the Ombudsman or the Human Rights and Equal Opportunity Commission. Look at how these bodies work.

Ombudsman

There is an Ombudsman in all Commonwealth, State and Territory governments, except the Northern Territory. The Ombudsman's main human rights role is to provide an independent and expert check on the actions taken by government departments, to make sure that they are legal and reasonable exercises of their powers towards individuals.

The Ombudsman reports to parliament, and makes recommendations about human rights situations which it has investigated.

Case study 2

Gina received a letter from the Australian Taxation Office claiming that she had received income from taxi driving, which she had not declared in her taxation return. Gina rang and said that she had never driven a taxi, and that it was a mistake. The taxation official said there was somebody of her name who was driving, and that she should write a letter of explanation - and if she lied, she would be prosecuted. Gina felt that her right to be presumed innocent of a charge was violated by this behaviour, and asked the Ombudsman to investigate.

2c Do you agree that Gina's rights were being abused in this way? Your teacher will tell you what the actual decision was.

Human Rights and Equal Opportunity Commission

The Human Rights and Equal Opportunity Commission is a body set up by the Commonwealth Parliament to promote respect for and observance of the human rights of all people in Australia and their access to equal opportunity.

It operates in a variety of human rights areas, such as Aboriginal social justice, equal opportunity, gender discrimination, disability discrimination, and privacy.

Case study 3

Steffi wants to work part-time in a mechanic's workshop. She passes all the required tests but she is told that she cannot get the job because she is not strong enough to push cars around the garage. None of the mechanics actually has to do this but the employer says that they might have to some time in the future and so she cannot be employed. Steffi says that she is being discriminated against because of her gender. She takes her case to the Human Rights and Equal Opportunity Commission.

2d Do you agree with Steffi's claim? Your teacher will tell you what the answer is.

Activity 3: Court decisions - case study

Most of the rights which Australians enjoy today are based originally on British and Australian court decisions, called 'common law'. A person did or did not do something, somebody objected and took the case to court, and the court made a decision to protect or extend or limit that right. Parliament might then have made a law which controlled or defined that action.

The reliance on the common law or courts to establish people's rights has reflected the idea that once a law is written down in an Act of Parliament, it may become quite inflexible whereas judges are capable of making balanced decisions which suit the particular facts of a situation, and which can be adapted when the circumstances have changed. Not all people accept that courts and judges are the best place to make decisions which affect the whole society.

Case study 4

A man was charged with a serious crime. He could not afford to hire a lawyer to defend him, and he was refused legal aid (a lawyer paid for by the state). He represented himself in court during the 40-day trial, and was found guilty. He appealed against the decision, saying that he was denied a fair trial by not having legal representation. In coming to their decision, the High Court judges had to interpret the rights of the accused in common law (previous judgements of the courts), in Acts of Parliament such as the Commonwealth Judiciary Act (1903) that says that a person committed for trial should, if they cannot afford it, have a lawyer appointed by the government, and a previous High Court decision that not having legal representation did not prejudice a fair trial.

3a Would you allow the appeal? Explain your reasons. Your teacher will tell you what the actual decision was.

3b What does this case study illustrate about the connection between statute law and common law?

Amnesty International
Courtesy Amnesty International, Australia.

Activity 4: Amnesty International and Councils for Civil Liberties

Human rights are also protected by private, that is non-government, organisations, such as Amnesty International and Councils for Civil Liberties.

In every State and Territory there is a body, usually called a Council for Civil Liberties, which is involved in protecting human rights. These Councils often represent people, provide information, organise campaigns and provide media releases to promote their causes. The organisers of these Councils are usually lawyers.

Amnesty International

Amnesty International is a private organisation that puts pressure on governments all over the world to stop human rights abuses.

Its role is to promote and protect the rights set out in the Universal Declaration of Human Rights. It does this by being non-party political and by protesting to governments wherever serious human rights abuses exist. It will only support political prisoners who have not advocated violence. One of its main tactics is to encourage ordinary people to write letters to the government involved in abusing the human rights of a particular person.

4a Look back at the case studies involving Amnesty International (Section 1, Activity 2) and identify some of the different methods it uses to support human rights.

4b Its methods, particularly the letter-writing campaigns, are often very successful. Suggest reasons why governments might be influenced by international letters and petitions.

Activity 5: Investigating democratic rights in Australia - case study

Free access to ideas is an important human right listed in the Universal Declaration of Human Rights.

The right to free expression of and access to opinions does, however, carry with it certain obligations. Australian courts and parliaments limit freedom of ideas and information by allowing only certain materials to come into Australia, or by allowing only certain people in Australia to have access to materials. For example, there is censorship of violence, pornography and obscenity in films, books and magazines. Although many people agree that some degree of censorship is necessary, particularly when young people are involved, there is often fierce debate and disagreement about the levels of such censorship.

5a Do you think such restrictions and censorship of free speech are necessary? Explain your reasons.

Look at the following case of possible political censorship - the limiting of access to Australia of people with unpopular political ideas.

The David Irving Case

Irvings views must be heard

The facts of the case

David Irving is a British historian who is an admitted world authority on Nazi Germany - the government of Adolf Hitler which was in power from 1933 to 1945. During this period the Nazis killed millions of German and other European Jews. This massive killing is known as the 'Holocaust'. The exact number of people killed is not known, but the usual accepted estimate is about six million. There are many Jewish people in Australia today who lost whole families during this period, and for whom the Holocaust is a fundamentally important part of their past and present.

Irving challenges the accepted view of the Nazi Holocaust against the Jews. He argues that:

  • the number of deaths of Jews has been exaggerated
  • there is no evidence that Hitler actually ordered the Holocaust
  • gas chambers on display at the Nazi extermination camp at Auschwitz, in Poland, are not genuine, and therefore are not evidence of the mass murder of the Jews in this way
  • the furnaces at Nazi concentration camps were to burn bodies to stop the spread of disease, and are not evidence of mass murder - just of sensible hygiene precautions.

He does not deny that huge numbers of Jews were killed - through starvation, disease, bashings, killing by execution squads, and some by gassing - but he does question the extent of killing by gassing. In doing this, he in effect rejects the testimony of thousands of survivors, who swear that millions of fellow Jews were exterminated by gassing. He says that their evidence is largely imagined or speculation, not eyewitness evidence.

Irving's views are supported by many anti-Semitic (anti-Jewish) and pro-Nazi extremists. Irving wanted to visit Australia to give a series of lectures at public meetings. If he did, there could be angry and even violent protests and clashes.

The human rights issues involved

Australia has legislation outlawing racial vilification (the belittling and abusing of people on racial grounds), and has common law remedies for defamation (the lowering of somebody's reputation through lies or deliberate inaccuracies). The Minister for Immigration has the power under the Migration Act to refuse a visa to a person with a criminal record. Irving has a criminal record in Germany and Canada - for speaking about his views. He says the convictions are themselves illegal.

People in Australia can read David Irving's books, see his videos, have discussion groups and meetings, and access his ideas on the Internet, but they cannot actually listen to him speak in the flesh. Is this fair and reasonable?

5b Compile a list of arguments for and against David Irving's visit. Some examples have been given to help you. Separate them into support and opposition, and decide which, if any, you would agree with and use in your own argument about whether you think he should be allowed to visit Australia or not. Summarise them in a table like this:

Arguments for Comment/evaluation Arguments against Comment/evaluation
       
       
       

Possible arguments

  • A personal visit is different from books and videos and will have a greater impact. It will give publicity to socially dangerous ideas and will encourage people to adopt these ideas.
  • Banning ideas makes them 'forbidden fruit'. People will be attracted to them, thinking that governments that impose bans have something to hide.
  • Denying him entry will give him martyr status, and will give his cause the 'oxygen of publicity'.

5c Record your decision and reasons in your workbook. Your teacher will tell you what the actual decision was.

5d Why might the government have used its powers to ban Irving's entry, rather than using its legislative and common law powers once he arrived?

5e Do you agree that the government made the right decision? Explain your reasons.

5f Draft a law that lists what you think are acceptable freedoms and limits in regard to speech and the spread of ideas.

5g What difficulties did you encounter in question 5f?

Bill of Rights

Activity 6: Applying a Bill of Rights

Do we need a Bill of Rights for Australia?

In Australia a parliament can change its own or previous Acts and it can also legislate to remove rights established by courts. Between them, the Commonwealth, State and Territory parliaments can make laws affecting every area of life. They could, in theory, take away every right we enjoy today, other than those provided for in the Australian Constitution.

A Bill of Rights is a set of protections of human rights set out in a country's constitution, or in a special Act of Parliament. These rights are clearly set out for all to know about, and when a situation arises which might threaten those rights, judges or legislators can refer to the rules very easily and make decisions.

Look at the following extracts (slightly adapted) from the proposed Bill of Rights for the Australian Capital Territory, and decide if the Bill would be a good model for all Australia.

Proposed Bill of Rights for the Australian Capital Territory

Purpose of the Bill

A Bill for an Act to affirm, protect and promote human rights and fundamental freedoms in the Australian Capital Territory.

Short title

This Act may be cited as the Bill of Rights Act 1995.

Extent of rights and freedoms

The rights and freedoms set out in this Act apply generally and are subject only to any reasonable limits prescribed by law that are demonstrably justifiable in a free and democratic society.

Division 1 - Fundamental freedoms

 8 Every person has the right to freedom of thought, conscience, religion and belief, including the right to adopt and hold opinions without interference.

 9 Every person has the right to freedom of speech and expression, including the freedom to impart information and opinions of any kind.

10 Every person has the right to freedom of peaceful assembly.

11 Every person has the right to freedom of association.

Division 2 - Democratic rights

12 Every person who is 18, a resident in the ACT, and an Australian citizen, has the right to vote.

13 A person has the right to vote by secret ballot.

14 Elections are to be by equal suffrage.

15 Every person has the right to participate in the voting process, including campaigning, and freely making political choices.

Reproduced with permission of the ACT Attorney-General's Department.

6a List two main strengths and two main weaknesses or limitations in the extracts of this proposed Bill of Rights.

6b If a Bill of Rights were introduced in Australia, judges would be called on to interpret its meaning in particular cases. Imagine that you are a judge, and the following imaginary cases come before you. Make your decision on the basis of the above extracts from the ACT proposed Bill of Rights and answer these three questions in each case:

  • Which right, if any, would apply from the ACT proposed Bill of Rights?
  • What would be your decision under the Bill of Rights?
  • In what ways might rights be limited? For example, the right to protest might exist but this right must be exercised within the law and the protest must be peaceful.

Summarise your answers in a table like this:

Right Your decision Considerations that might limit rights
     
     

Situation

  1. A says at a public meeting that politician B is incompetent in her job. B objects to this and wants to take A to court. A relies on the Bill of Rights for protection.
  2. C walks the streets with a placard which says that a government policy is wrong and harmful. The government want to stop this protest. C relies on the Bill of Rights for protection.
  3. D believes that E, a political leader, is a dangerous person who will lead Australia to disaster. D physically attacks E at a demonstration, and is arrested. E relies on the Bill of Rights for protection.
  4. F joins a group which opposes some government policies. They have only ever protested legally and peacefully. G, a police officer, secretly gathers information on that group, in case they are planning something illegal or dangerous. F finds out, and wants all such surveillance activities stopped. F relies on the Bill of Rights for protection.
  5. H believes that the present voting system is wrong. He prints pamphlets telling people to vote in a different way at an election. His method is legal but if some people used it, there would be two voting systems in force in the community at the same time. I wants to stop H distributing the pamphlets. H relies on the Bill of Rights for protection.

6c What do you now think are the main strengths and limitations of a Bill of Rights?

6d How important would the courts be if Australia had a Bill of Rights?

Assessment task

Prepare a debate on the topic 'Australia should have a Bill of Rights'. Use the arguments below to help you develop your ideas. Sort them into arguments for and against a Bill of Rights. You may also be able to add other arguments to this list. Number them in a sequence which would create a logical argument for or against the case.

Find examples of Bills of Rights being used in a way that would support your side of the case. For example, if you are arguing against a Bill of Rights, you might support the argument that 'a Bill of Rights becomes out of date as society changes' by saying that 'the right to bear arms' in the US Bill of Rights is not appropriate in twentieth-century society. You might compare the homicide rate of that society with that of other societies that do not have that right. You might point out that it is difficult to get rid of that right and that it in fact impinges on other rights.

Arguments

  • A Bill of Rights becomes out of date as society changes.
  • A Bill of Rights gives judges too much power. Basic rights should be protected by elected representatives, not unelected ones.
  • A Bill of Rights would provide guidance to governments about what laws to make.
  • Human rights are already well protected in Australia by our parliaments and United Nations conventions that we have adopted.
  • A Bill of Rights would have to be changed by referendum and, as Australians rarely vote 'Yes', it would be a waste of money.
  • Rights may conflict with each other, or the meaning of the rights might be unclear. A court rather than a parliament interprets a Bill of Rights.
  • There are some rights and freedoms that are so important to humans that they should be spelt out.
  • These rights and freedoms ought to be added to the Constitution so that they cannot be changed by parliaments.
  • We can trust and rely on our representatives to act for our good.
  • We can trust judges to be impartial and fair and make good decisions about human rights.
  • We cannot rely on parliament or courts to protect human rights.
  • Parliament should be the body which balances individual rights against the needs of society as a whole.

Adapted from Foster, Margaret 1996, Our Constitution: Teacher Resource Manual, Macmillan Education Australia, South Melbourne.
Reproduced by permission of Macmillan Education Australia.

Assessment criteria

Your work will be assessed on:

  • the quality of your research
  • use of appropriate examples to support your case
  • whether you have covered all the main arguments
  • effectively countering your opponents' arguments
  • the logic and persuasiveness of your case.

ESL activities

Back to 'Human Rights - At a glance'

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