Statute Law & the Victorian Charter
What is one key strength of protecting rights through statute law?
Parliament can respond quickly to social changes and create or amend laws (e.g. Equal Opportunity Act 2010 (Vic)).
What is one strength of protecting rights through common law?
Judges are independent and can interpret laws fairly without political pressure.
How many express rights are in the Australian Constitution?
Five.
What declaration forms the foundation of many international human rights laws?
The Universal Declaration of Human Rights (1948).
A person claims discrimination under the Equal Opportunity Act 2010 (Vic). Which method protects their rights?
Statute law – through the Victorian Charter and anti-discrimination legislation.
What is one major weakness of statute law in protecting rights?
Statute laws are not entrenched and can be repealed by Parliament.
What is one limitation of protecting rights through common law?
Rights only evolve when cases are brought before the courts.
What is one key strength of protecting rights through the Constitution?
Rights are entrenched and can only be changed through a referendum.
What must happen before an international treaty becomes enforceable in Australian law?
Parliament must pass legislation to ratify it.
A citizen argues that border restrictions during COVID-19 breached their right to free movement. Which method?
Constitution – Palmer v Western Australia (2021) dealt with implied rights to interstate trade and movement.
Which Act in Victoria outlines basic human rights and requires laws to be compatible with them?
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Which case established that a fair trial may require legal representation?
Dietrich v The Queen (1992)
What is one weakness of protecting rights through the Constitution?
There are few express rights, and accessing the High Court is expensive.
Give one example of a treaty that has influenced Australian law.
The International Covenant on Civil and Political Rights (ICCPR)
Purpose:
Protects fundamental freedoms such as the right to life, freedom of speech, freedom of religion, and the right to a fair trial.
How it’s used in Australia:
Australia ratified the ICCPR in 1980.
Many of its rights are reflected in laws such as the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), which requires Parliament to consider human rights impacts when making new laws.
It also guides the work of the Australian Human Rights Commission.
Example:
The ICCPR supports legal principles like fair trial rights seen in Dietrich v The Queen (1992) and the protection of political communication recognised by the High Court in Australian Capital Television v Commonwealth (1992).
An Indigenous group claims ownership of land despite government grants. Which method?
Common law – Mabo v Queensland (No. 2) (1992) recognised native title.
How does the Charter influence other laws made in Victoria?
Bills must include a “Statement of Compatibility” to show alignment with human rights.
How did Mabo v Queensland (No. 2) (1992) expand rights protection?
It recognised native title, confirming Indigenous Australians’ land rights under common law.
Which case established an implied right to freedom of political communication?
Australian Capital Television v Commonwealth (1992)
Why are international obligations important or significant even if not ratified?
They place moral and diplomatic pressure on governments to protect rights.
A student argues Australia should adopt a national Bill of Rights. Evaluate whether this would be more effective than current protections.
Currently, Australia already protects rights through laws, courts, and the Constitution. A Bill of Rights could give stronger, nationwide protection, but it might reduce Parliament’s power to make laws. A Bill of Rights could reduce Parliament’s power because judges could strike down or block laws that go against the rights listed in the Bill. This means Parliament wouldn’t have full control over what laws can be made. Judges could stop Parliament’s laws if they breach the rights in the Bill, so Parliament would lose some law-making freedom.
Explain how the Charter improves the ‘rights culture’ in government decision-making.
It makes government bodies follow human rights in their actions and decisions.
Why can common law rights be uncertain or inconsistent across jurisdictions?
Because common law evolves case by case, leading to variation until clarified by higher courts.
How did Roach v Electoral Commissioner (2007) influence the right to vote?
It recognised that blanket bans on prisoner voting were unconstitutional and reinforced representative democracy.
Explain the difference between signing and ratifying a treaty.
Signing expresses intent to comply; ratifying makes the treaty legally binding domestically once enacted into law.
Australia has signed a new UN treaty on disability rights, but has not yet passed domestic legislation. Can citizens rely on it in court?
No – treaties are not enforceable until ratified through domestic legislation (e.g., Human Rights (Parliamentary Scrutiny) Act 2011 encourages compatibility checks but doesn’t create enforceable rights).