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Human rights

Principal focus

Students understand the notion of individual and collective human rights and the extent to which the law embodies such human rights and promotes them in practice. The depth of attention needs to be on the protection of human rights in Australia and the evolution of the recognition of human rights in international law.

Themes of course
Key questions and issues
Outcomes
Content 
Revision
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Themes of course

Justice law & society	Continuity and change
Culture, values and ethics	Legal process and institutions
Conflict and cooperation	Effectiveness of the legal system

Key questions and issues

	What are rights?
	How are they recognised and enforced?
	How effective are legal measures, domestically and internationally, in addressing human rights issues?
	How effective are non-legal measures?

Outcomes

A student:-

H1.2	assesses the role of Australian and major international institutions
H2.1	explains the origins and sources of Australian and international law
H2.3	evaluates the effectiveness of domestic law in responding to global challenges
H3.1	analyses the interrelationship between law, justice and society and the changing nature of law
H3.2	assesses how cultures and values of different groups within society impact on the legal system
H3.3	evaluates the effectiveness of the processes and mechanisms of change in the legal system
H4.3	explains rights and responsibilities and evaluates the provisions of domestic and international legal systems in addressing these issues
H5.1	selects and organises relevant legal information from a variety of sources and evaluates information and sources for usefulness, validity and bias
H5.2	investigates, analyses and syntheses legal information from a variety of perspectives and presents the findings of investigations
H5.3	communicates through well-structured texts to describe, explain, argue, discuss, analyse, evaluate and apply legal information, ideas and issues using appropriate written and oral forms.

Stage 6 syllabus Legal Studies © Board of Studies NSW 1999

Content

The nature and development of concepts of human rights

State sovereignty
Doctrine of natural law
Historic constitutional documents
Movement for abolition of slavery
Trade unionism
Universal suffrage and education
Distinguishing between moral, customary and legal rights
Differences between domestic and international rights

Identifying the types of international rights
The recognition of human rights under Australian law
Contemporary struggles for human rights 

Content

The nature and development of concepts of human rights

The concept of human rights has advanced in the latter part of the 20th century. They have not always been present, and abuses have occurred, but in spite of these, people the world over are more aware of human rights issues, as communications have improved.

State sovereignty

While state sovereignty had an important impact on the development of power relationships within states, its greatest influence has been on the relationships between states. During the 20th century important restrictions on the freedom of action of states started to appear. The Hague conferences of 1898 and 1907 established detailed rules governing the conduct of wars on land and at sea.  The covenant of the League of Nations restricted the right to wage war, and the Briand-Kellogg pact of 1928 condemned the recourse to war for the solution of international controversies and its use as an instrument of national policy.  These agreements were followed by the Charter of the United Nations that imposed a duty on member states to "settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered", and that all members "shall refrain in their international relations from the threat or the use of force".

As a consequence of this, sovereignty has ceased to to be considered as synonymous with unrestricted power. All states in the United Nations   are regarded as being equal. The growth of the democratic form of government imposed important limitations on the power of the sovereign and the ruling classes. The increase in the interdependence between states restricted the principle that might is right in international affairs. It could be said that the state has finally realised that trial by combat is not a just way to settle disputes.  The increasing availability of information now makes it difficult for even the most authoritarian regime to hide its actions from the rest of the world community.

Activity (H5.3)

Explain how the concept  of sovereignty has changed over time.

Doctrine of natural law

Natural law is often used as the basis of laws in our society.  According to natural law, the law should be based on a reasoned analysis of what is obvious to rational human beings in the natural order of things. Under this theory valid laws can only be those laws that "ought to be".

This concept of law is based on the reasoned analysis of what can be considered "good" and "bad". The concept of natural law has come down through the ages from philosophers such as Plato and Cicero.  This doctrine holds that laws should provide the greatest happiness to the greatest number, and is reflected in the utilitarianism concept of law. Accordingly laws should be looked at as to how much "pleasure" they can provide for the society, as opposed to how much pain the law will cause. Laws against a particular group, such as Asians, during the era of the White Australia policy, are seen as "bad" laws.

Activity (H5.3)

Describe other examples of "good"and "bad" laws.

Historic constitutional documents

At the time of the Norman conquest (1066), laws were made by the King, and England was divided into "hundreds", which consisted of roughly 100 families who would meet every month to hear issues. After the Norman conquest this system of customary law continued, but important legal issues were dealt with by the King in the Curia Regis (King's Court) with the assistance of selected barons and bishops. For more details on the medieval system go to the Laws of William the Conqueror .

The first major document for English law was the Magna Carta. This document was important in that it provided some protection from the absolute tyranny of the King. Some of its provisions included the basic right of freedom for every citizen, the right to be tried by a jury of peers, and the right to hold property. Article 61 of the Magna Carta established a council of 25 barons, who could seize power from the King if the King broke any of the clauses and did not correct the mistake. For more detail follow the link to the British Library on the Magna Carta 

The next King, Henry III, signed the provisions of Oxford, which established a three-yearly conference or parliament of barons. In the time of Edward I this was extended to knights, bishops and burgesses from all over England. Parliament was established to advise the King. By the time of Henry V, the Commons would present a bill to the Lords who then passed it on for royal assent. Many of the rules and procedures for this are similar to those of today, and the procedures have their basis in customary law. For more details go to the Summonses  to Parliament by Edward I site.

Other significant events

Petition of Rights 1628   This document sets out the rights and liberties of the subject as opposed to the rights of the crown (i.e. Charles I). This action, favouring the common man, was mainly the result of the efforts of Sir Edward Coke (1552-1634), a prominent parliamentary adversary of the crown. The offices he held  included Speaker of the House of Commons, Attorney-General, Chief Justice of the Court of Common Pleas and Chief Justice of the King's Bench.

Bill of Rights 1689   This Act declared the rights and liberties of the subject and the procedure for settling the succession of the Crown. This was the result of political unrest in England. Charles I had been executed in 1649, and Britain was a republic until 1660. Finally an Act of Settlement was passed which granted the status of British citizens on the new Protestant King, William III of Orange, and his wife Mary II.  The Bill of Rights sought to limit the power of the monarch and clarify the law so that civil war and unrest were not repeated. The current royal family still rules under the terms of this Act.

Australia

When Australia was colonised by Britain, British laws were also adopted. These were adapted over time to suit the local conditions. In 1855 the NSW constitution was passed, under the authority of the Legislative Council. This established a bicameral system of government for New South Wales. Click on the link to view the Constitution Act 1902 NSW .

Although Australia had been federated since 1901, was recognised as an independent sovereign nation and was a signatory to the Treaty of Versailles, Australia could not pass laws that were different in intent from English law. The British Parliament passed the Statute of Westminster (Westminster Act 1931 (UK) ), to allow Australia to make laws which were contrary to the laws of England. Previously under the Colonial Laws Validity Act  a colony could not make laws which were different from the intent of English laws.

The most important document in relation to the Australian nation is the Australian Constitution Act (1900) which was passed by Britain and gave law-making powers to the Commonwealth of Australia. This constitution detailed the powers of the Federal and the State governments, established the powers of the High Court and determined the structure of government. To view the Federal Constitution and its details click on the link.

In 1971 the International Court of Justice ruled that all member states of the United Nations accept the legal obligation under articles 55 and 56 of the United Nations Charter to implement all the human rights obligations in the charter. (UN Declaration of Human Rights 1948)

In 1986 the Australia Bill (UK) was passed which removed the last vestiges of the old colonial rule. This Australia Act established the High Court as the final court of appeal in Australia, and removed the right of appeal to the Privy Council in England.

In 1998 the International Law Commission of the United Nations, made the following ruling: "No laws of a member state of the United Nations are valid within the sovereign territory of another member state unless via reciprocal treaty agreed between the two member states. The treaty may not infringe the sovereignty of either member state". This ruling recognises the independence of sovereign member states such as Australia, which are free to enter into international treaties and agreements.

Activity (H5.3)

Examine the information on historical constitutional documents and relate this information to the theme "continuity and change".
Evaluate the evolution of legal rules and institutions in relation to Australian historical constitutional documents.

Movement for abolition of slavery

Slavery had been a long tradition that dated back to ancient Greece. In the Roman empire the advances of Christianity did make conditions for slaves a little more bearable, and under Islamic law there were strict rules on how slaves should be treated.  In England slavery took the form of serfdom. To all intents and purposes serfs could be considered as slaves, as they had no real alternatives and were bound to their lord and master.

The movement against slavery really started when the nature of the slave trade was understood by the public. Many people such as Adam Smith, Dr Johnson, Pope, Savage and Cowper all came out publicly against slavery. England was not the first European power to ban slavery; that honour goes to Denmark which banned slavery in Danish territories on May 16th 1792.

The first people who united practical action against slavery were the Quakers who declared it "not commendable or allowed" in 1727.  The reformist movements were predominant in the movement, and it was through their actions that the issue was drawn to public awareness. The Protestant reform movements were often critical of the establishment and were often regarded with suspicion by those who held traditional power, especially as the Industrial Revolution was creating a new class of rich, many of whom were Protestant, and wanted some of the power held by the old establishment.

In 1772, it was decided by the whole bench, that as soon as a slave set foot on the soil of the British Isles, he became free. As a result of this and numerous  petitions presented to Parliament, a committee of the Privy Council was appointed by the Crown to look into the slave trade issue in 1788. This led to a motion to ban the importation of slaves into the West Indies. This motion was lost. The West Indies represented quick wealth to many people in positions of power, and slaves were a cheap way of getting the wealth.  Eventually by 1823 an anti-slavery society was established, with Wilberforce and Buxton the principal members. After much pressure in 1833 a system of apprenticeship and compensation for owners was passed by parliament. Slaves were to become apprentices for a transitional period of seven years and were bound to work for their masters for three-quarters of the day. By 1838, two years early, slaves were granted their freedom in all territories controlled by Britain. For more details visit UK Anti Slavery Society

This was one step towards the freedom of slaves. The United States fought a civil war with slavery as one of the issues.  The formal idea of slavery was becoming unpopular. Other disguised forms of slavery were often employed. The "blackbirding " of Pacific Island peoples to work as indentured labour in the Australian sugar cane fields and the indenturing of Indian people to work the cane fields of the West Indies and Fiji, are two examples.

A slavery convention, formed by the League of Nations in 1926, defined slavery as "the status or the condition of a person over whom any or all the powers attaching to the right of ownership are exercised". This convention is still in force as the United Nations assumed the powers and functions of the League of Nations in 1945. Many UN organisations like UNESCO and the International Labour Organisation ( ILO) continue to monitor slavery issues.  The use of child labour in Pakistan is a modern example of a disguised form of slavery. A 13-year-old Pakistani activist who campaigned against conditions for child labour was killed. Even so the Australian Federal Government did not support the motions at the ILO conference in Seoul (Korea) to link child welfare to trade issues. Follow the link for more details on the ILO's campaign against child labour

However in some places it is still common for people to pledge their services as security for a debt. This leads to debt bondage, where a person is to all intents and purposes enslaved for life.

With advances in medicine there has also been another alarming trend, the trade in body organs. This is not just a problem in places like India; complaints have been made in the technologically advanced country of Japan. People are being pressured to sell a kidney to clear a debt.  In Australia such actions would be illegal. Trade in human body tissue is illegal: you can donate a kidney but you cannot sell it.

Activity (H2.3)

How effective has law, both domestic and international, been in abolishing slave labour and slave-like practices?
To what extent are the laws relating to slavery affected by culture, values and ethics?

Trade unionism

The Black Death in 1348 had the effect of putting labour in short supply. As a result there was upwards pressure on wages. King Edward III attempted to freeze wages paid to labourers at their pre-plague levels. The result of this action was the peasants, revolt. The Statute of Labourers was a vain attempt to enforce the Ordinance of Labourers, which had in theory frozen wages at their pre-plague levels. For more details follow the link to Ordinance of Labourers of Edward III .

In 1830 the wage of an agricultural labourer was nine shillings. In the following years the wage was reduced to eight shillings, and then to seven. In 1834, the workers were faced with the prospect of their wages being reduced to six shillings. It was against this background, some time between 1831 and 1833, (the precise date is unclear) that the men of Tolpuddle started up a Friendly Society of Agricultural Labourers (F.S.A.L.).  This association was heavily punished. The ringleaders, known as the Tolpuddle Martyrs, were sent to Australia for their trouble. For more details follow the link on the Tolpuddle Martyrs .

Australia

In the early 1840s  the economic depression led to the formation of the Mutual Protection Society, which was concerned with the protection of the working class. The society was successful in getting unemployment benefits for unemployed mechanics and  labourers. Despite the activities of unions in these early days the conditions of the workers left much to be desired. 

The gold rush period of the 1850s saw labour in demand. Many went off to try their luck on the gold fields, and workers in the cities were in short supply. This led to a slight increase in wages and conditions. The miners' "rebellion" on the Ballarat goldfields of December 3 1854 left Australia  with a powerful legacy. The Eureka Stockade incident was sparked by the demands for a reduction in the gold licence fee, for the right to vote and for the abolition of property qualifications to be a member of Parliament, as well as short-term parliaments and equal electorates.

By the end of the gold rush era the Trade Hall Council and Trades and Labour Councils were formed. High on the priority was the establishment of the eight-hour day.  But still by 1884 a Royal Commission into the conditions of employees found that "in many places employees are obliged to work for periods beyond the limit of human endurance".

The 1890s was a turbulent time for the union movement. The depression at that time saw conditions decline, and troops were used to break strikes. Some workers found the conditions so harsh, they hired two ships to take them to Paraguay, where they established a colony called "New Australia". 

In the newly-formed Commonwealth, the Federal Government had the constitutional power to set up an arbitration system modelled on the New Zealand system. By 1927 the Australian Council of Trade Unions was established. The Union movement was established to improve the wages and conditions of the workers. By and large they were relatively successful.  They were more successful in times of boom than in times of recession.

Today, with the changing nature of work, more part-time and casual workers and more pressure from international competition, the union movement has seen membership fall, and is currently trying to redefine itself to meet the needs of the workers.  From 1998 to 1999 the growth of profits has been at 18.7% while wages have grown at 1.8%. Workers are working longer hours and often this is in the form of unpaid overtime. With the threat of "downsizing" , high  levels of unemployment, difficulties in getting jobs for younger and older workers, the increasing use of casual labour and unfavourable government legislation for workers, there is more pressure being placed on the union movement and the workers in general to try and maintain their standard of living.  If equity measures are not introduced by management, such as more consultation over changes, there may be an increase in industrial action, as there was in similar times in the past.  

For information on current union issues in Australia you can visit the following sites:-

Common Cause from the CFMEU	Mostly mining issues and examination of Federal government legislation from the union's perspective
Australian Council of Trade Unions	Home page of Australia's main union body
Trades and Labour Council of NSW	Home page of main union body in NSW
Workers OnLine	Official magazine of LaborNet dealing with current issues

Activity (H3.1)

Assess the role the trade union movement has had in Australian society. 
Evaluate the effectiveness of the union movement in today's society.
Analyse the interrelationship between law, justice and society, and the changing nature of law in relation to the development of trade unionism in Australia.
What is the nature and extent of conflict between employer and employees?
Is Australian law effective in resolving conflict and encouraging co-operation between employers and employees?

Universal suffrage and education

Universal Suffrage

The right to vote has been an important right through the ages. Ancient Athens saw the right given to adult male citizens.  The right has been restricted in one form or another up to the present day.

The trend in the 19th and 20th centuries has been towards the elimination of restrictions on voting. The old property qualification has been reduced to a minimum in practically all countries. The residence requirement and the requirement  to cast the vote in person are accepted as necessary by the electoral commissions of the various countries.  The voting age varies around the world, but 18 years is now generally the required age for voting.  The history of women's suffrage is a long one. After many years of struggle in many countries the right for women to vote is now well accepted. For more details on this follow this link to the History of Women's Suffrage .

The right to vote is now considered part of the basic human rights, as covered by the UN Declaration of Human Rights in 1948.

Australians first achieved the right to vote in 1843. Before this, all members of the Government were directly appointed from England. However, only a little over 10 per cent of the male population owned enough land to gain the right to vote. By 1851 this figure had increased to 25 per cent. Women were not allowed to vote at all. All males over 21 received the right to vote in South Australia in 1856, with all other States following suit between 1856 and 1900.

Australia's stand on the right to vote was impressive in that it was one of the first countries to give the right to vote to a broader section of society. Australia did not have a thousand-year-old landholding class system like Britain, and as a result there were less "vested interests"  trying to limit the right to vote. In the nineteenth century almost all Australians were convicts, ex-convicts, descended from convicts, or settlers. None of these people would have had very much money when they came from England. Australia was a far more a working-class country than England or America. Even the factory owner of the 1870s was probably a factory worker in the 1850s. The result was fewer class differences, because of this lack of class distinction and the establishment of the egalitarian "myth", as portrayed in the poems of Lawson.

Australia also has an impressive record when it comes to giving women the vote. South Australia was the second place in the world to do this, in 1894; New Zealand had been the first. All Australian women received the right to vote in 1902. Thus we were one of the first countries in the world to have "universal suffrage", i.e. a system where everyone was entitled to vote, unless they were Aboriginal, in some states. This was not addressed until the 1960s.

Education

Education was once the preserve of the rich. Only those with the means had access to education, unless they were one of the lucky few who could find a patron. This was just one way to ensure that the "right type" of people stayed in positions of power. The Industrial Revolution and the Protestant movements led to rapid changes in the levels of education. Factory owners in England needed workers who could read instructions, and an educated  workforce became a necessity in the new industries. People were taught to read, and with this new power they started to read things for themselves and form their own opinions. This affected other aspects of everyday life as well. People could now be informed more easily and with the growth of writing and newspapers, the inequalities of the system started to become more apparent to more and more people.

This, along with the new Protestant movements, which established for their children schools that taught the new subjects, such as mathematics, commerce and science, gave this group an advantage in the new industrialised world over the "old" rich who tended to be educated in classical Greek, Latin and Theology, which were not much help in running the new industries.

Today, education is seen as a basic human right. The United Nations has, through its various articles and resolutions, attempted to highlight that education is the right of all. For example, the United Nations Declaration on the Rights of Children in 1959, the principle amongst other things specified that parents or guardians have a duty to provide children with care and control, education, and medical treatment. (Link to  UN Rights of Child)

 The nature of education is also changing the speed at which new technologies are being adopted and is improving the standard of living in many areas of the world.  The right of access to education is an important right, but over recent times financial demands have restricted access to education to groups within Australia.  Education is an important right that helps build a cohesive society.

Activity (H4.3)

Explain the rights and responsibilities in relation to suffrage and education.
Evaluate the provisions of domestic and international legal systems in addressing these issues.

Distinguishing between moral, customary and legal rights

Legal rights are those rights that can be enforced by law. Legal rights in the Australian legal system derive from the common law and statute law. People with legal rights usually also need to have legal standing to take an action to court.

Customary rights, are those rights that are deemed to exist as they have been practised for long periods of time and are accepted by a group. This applies not only to traditional societies, but can also apply to modern industrial societies. Customary rights can be enforced under law in some circumstances. For example a particular work practice starts up in the factory, but the employer says or does nothing about it for some time. If after some time the employer then decides to sack a worker for doing what was thought acceptable, the employee would have the right to take action for unfair dismissal. In general, the broad customary rights of a society are reflected in the legal rights of the society. The common law right of quiet enjoyment of property is but one example.

Moral rights are those that a particular group believe to be right and just. Often moral rights are reflected in the laws and customs of the society and derive largely from religious beliefs. Some would be nearly universal, such as the prohibition of murder; others would vary with the culture and religion of an area, such as the prohibition of alcohol.  In a pluralistic society what people see as their moral right might conflict with others in society or the laws of that society. For example an individual who is opposed to war might well hold it is his or her moral right to refuse to fight.

Activity (H3.2)

Distinguish between moral, customary and legal rights. 
Assess how culture and wealth can affect these rights.
Evaluate how equitably they are applied in Australian society today.
Assess how moral and customary rights are reflected in the cultures and values of different groups within society.  

Differences between domestic and international rights

The main organisation that has had a large impact on human rights is the United Nations. In 1948, just after it was formed, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights. Following this historic act, the Assembly called upon all member countries to publicise the text of the Declaration and "to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories."

Domestic rights are those that can be enforced legally within the sovereign territory of a nation. People who have had their rights infringed may use the domestic law to gain legal redress for the problem. In Australia there is a wide range of anti-discrimination legislation a person could use, as well as institutions such as the Ombudsman and the Administrative Appeals Tribunal, which all can be used to redress infringements of legal rights.

International rights are not usually accessible to the public in the same way as domestic rights. The International Court of Justice will recognise the legal standing only of member states.  It is only on rare occasions that the International Court of Justice has recognised the standing of non-government organisations(NGOs).

However individuals are free to take cases that involve infringements of human rights to the United Nations, via the lobbying process. Groups such as Greenpeace have used this forum successfully to put pressure on various governments to conform to internationally accepted practices, such as in the transportation and  disposal of nuclear waste.

Click on the link for a detailed list of sites of the United Nations and other International Human Rights Organisations . This link takes you to a page of many links associated with International Organisations.

Activity (H4.3)

Explain the difference between domestic and international rights and responsibilities and evaluate the provisions of domestic and international legal systems in addressing these rights and responsibilities.
Assess how the cultures and values of different groups within society have impacted on these rights.

Identifying the types of international rights

Civil and political rights

The freedom to make a political comment and the freedom to express this right peacefully is expressed in the Declaration of Human Rights , and as a result accepted in theory by the signature nations. However in reality there are many instances where freedom of expression is not allowed by the authorities.

The acceptance of human rights issues is gaining in many areas. It is a concept that has only really started to take off since the formation of the United Nations , and it was given a powerful boost by the explosion in world-wide communications, which has made it possible for information about abuses to be made much more public than they were before.

Environmental rights

The growth of non-government organisations, such as Greenpeace, has highlighted environmental issues, and brought moral pressure to bear against offending nations. Action to gain environmental rights can even be taken in the International Court of Justice, as Australia did with the French nuclear tests in the Pacific. This option can work only if both nations agree. Australia is one of the few nations that has signed the treaty to use the International Court of Justice. The United States, when taken to court about the mining of Nicaragua waters, simply withdrew from the case. Australia is one of the few countries that has signed an agreement to always take issues to the International Court of Justice, and abide by its decision.

Economic rights

Economic issues are dealt with by organisations such as the World Bank and the Organisation for Economic Cooperation and Development (OECD). There are many treaties such as the International Covenant on Economic, Social and Cultural Rights and the United Nations Commission on International Trade Law . This structure for commercial rights is well established and has facilitated the growth in world trade. The importance of this is appreciated even by countries with poor human rights records, and as a result human rights issues are being linked with trade issues. This is having an effect, even if a slow one, on countries like China and Burma.  Many links to various organisations can be found at United Nations and other International Rights

In recent times there has been a tendency for economic "needs" to take precedence. This is reflected in the Sydney Morning Herald article on the issue of how Human Rights seem to be coming well after perceived economic needs.

Collective rights for self-determination

One of the general principles that is becoming well established is the collective right to self-determination. This was the first article in the International Covenant on Civil and Political Rights

The Indonesian Government, under the threat of being deprived funding from the World Bank, agreed to a free vote in East Timor.  When the vote went against Indonesia, the attempt at using tried and true means failed, as the issue quickly became one which attracted world attention. Financial and moral pressures were put on the Indonesian government to recognise the vote.     

Social & cultural rights

Over the last 20 to 30 years there has been an increased awareness of the rights of groups to their own cultural and social organisation. This has been reflected domestically by the adoption of the concept of multiculturalism in Australia. This recognises the rights of individuals, within a social group, to practise their own culture. For example, recognition is given to Muslim practices in Australia, with the courts upholding freedom of religion, equating mosques and churches in the Land and Environment Court. Also indigenous peoples, not only here in Australia but throughout the world, are having their cultural rights recognised.

This has been greatly aided by the acceptance of the declaration of human rights , and the prominence given to it in various countries. There are, however, still areas where minorities are finding it hard to keep their culture alive. The Kurds in Iraq and Turkey have had a long history of persecution, and the people of Tibet don't have the freedoms that other minorities have elsewhere in the world. Even so, there is gradual change, as these issues are being brought to the attention of the world through vastly improved communications. People are more exposed to other groups and their culture and have a much greater acceptance of others than previous generations have experienced.

Peace rights

In Australia, one of the main elements of common law is the "peaceful and quiet enjoyment of property". Common law has always upheld this principle in Australia. The right to a peaceful environment has more or less been taken for granted. There have been no civil wars in Australia, and even our rebellions have been mild by world standards.

Even in the enforcement of law, the police have as their first objective a duty to maintain the peace. This was reflected in the waterfront dispute in 1998. The law was being broken, but to arrest possibly thousands of people would not have maintained the peace.

The Declaration of Human Rights also has peace as one of its main focuses. By and large, the adoption of this as a basic standard has promoted peace. There are still conflicts, mainly over access to resources, but large-scale wars which plagued the first half of last century are now being replaced by regional disputes, which are well televised, and the people responsible for gross violations are being held acountable for their actions. This is occurring through the International Court of Human Rights in the Hague, the war in Bosnia being one example.

Activity (H1.2 & H2.1)

Assess the role of Australians and major international institutions in enforcing international rights.
Explain the origins of international rights. 

The recognition of human rights under Australian law

Australia does not have a Bill of Rights, as the United States has, to protect the freedom of the individual from interference by the government or anybody else. The Constitution says nothing about human rights and contains very little which can be said to guarantee any sort of rights to individuals. The Commonwealth has a power to acquire property compulsorily but the owner of the property is guaranteed that the acquisition will be "on just terms". There is a provision that trials on indictment for offences against a Federal law shall be before a jury. However, it is open for the Federal Government to say that a trial shall not be on indictment and thus avoid the requirement for a jury. There is no requirement for a jury trial in the States. Constitutional changes to put these into the constitution were rejected in 1988. The High Court has recently upheld an implied right in the constitution for freedom of political expression.
The Federal Government may not legislate to interfere with freedom of religion, but there is no restriction on State legislation in this area, and it may not discriminate against someone on the basis of which State they come from, but there is no prohibition on discrimination on any other grounds.

The clearest guarantee of any sort of right in the Constitution is that which forbids any sort of interference, either by the State or Federal Governments, with " trade, commerce and intercourse between the States".

All this means is that the Commonwealth has no express power in the Constitution to introduce a bill of rights. If the government wanted to introduce a bill of rights, it would have to either:

1. amend the Constitution by referendum (remote possibility), or
2. persuade the States to unanimously give their power over human rights to the Commonwealth (highly improbable).

Individual rights

The Australian Constitution does not give a great deal of attention to individual rights. There are some rights which every citizen has, which are contained within the Constitution, but they are limited in scope.

1. Section 8 of the Constitution qualifies who can be a voter. This section provides that if a person can vote in a State election, then he or she cannot be denied a vote in a Federal election. It also provides that a person can vote only once in a Senate election. State governments could, in theory, remove the right to vote to certain groups, by taking away the right to vote in State elections. This was why in some states Aboriginal people did not get the vote until the 1960s
2. Section 24 of the Constitution provides that members of the House of Representatives must be directly chosen by the people, that is, by democratic election. It does not detail the electoral system to be used. An example of various electoral systems illustrates how they can be used to the benefit of some groups. The preferential system does favour the two major parties, which is why they prosecuted the individual in Melbourne in the 1993 election who, as the Supreme Court later affirmed, rightly pointed out that a vote numbered 1,2,3,3,3 is a valid vote for the first two candidates, but becomes extinguished at candidate number 3. That is the preferences do not flow to the major parties, if the voter so chooses.
3. Section 30 provides that each person on a State electoral roll can vote, but only once, in an election for the House of Representatives. However, an elector can vote only in one Division (this reflects the fact that at the time of Federation, in some States, people were allowed to have two votes if they lived in one electoral district but had a large business interest or other property in another electoral district).
4. Section 51 provides that the Australian Government must provide compensation on just terms if it seeks to requisition (compulsorily acquire) property from people. State governments do not have to meet this requirement. NSW and South Australia compulsorily acquired land without compensation in the 1980s.
5. Section 80 guarantees a right to trial by jury but only for those being tried under Federal laws. No such guarantee applies with the states.
6. Section 116 guarantees freedom of religious belief.
7. Section 92 guarantees freedom of movement for goods and for people across State lines.
8. Section 117 prohibits the States from discriminating against people from other States. However a State government is in theory free to discriminate against people born within the state.

Activity (H5.3 H2.3)

How effective are these legal measures in addressing human rights in Australia? 
Evaluate the effectiveness of non-legal means of addressing human rights  in Australia.
Assess the importance of free media in maintaining these rights.
What arguments can be made for and against the adoption of a Bill of Rights within the Australian constitution?
How are human rights recognised and enforced within Australian society?
How effective is Australian law in responding to the global challenge to recognise human rights?

Contemporary struggles for human rights

There are many areas in the world where there are ongoing human rights issues. The sites below will take you to various organisations that monitor human rights issues. It is important to be familiar with at least a couple of areas so they can be used as examples where needed.  These sites and many others highlight the changing understanding of human rights and the effectiveness of legal measures, both domestically and internationally, in addressing human rights issues. There is an increasing social awareness of issues that used to be remote and hardly reported in the media, even 20 years ago. This means that local leaders are becoming more accountable to the wider international community.

In Australia in the first half of 2000, mandatory sentencing and the "stolen generation" became major issues in Australian politics.  The Sydney Morning Herald site  Mandatory Sentencing Rough Justice   and The Stolen Generations Mr Ten Percent has links to many of the articles at the time, and discusses the issues in some depth.

Some other sites include:-

The Human Rights Council of Australia	The Human Rights Council of Australia is a private non-government organisation which promotes understanding of and respect for human rights for all persons without discrimination through adherence to the International Bill of Rights, and other human rights instruments, internationally and within Australia.
Human Rights Organisation & Resources	This site contains the names of human rights organisations, other organisations doing substantial amounts of human rights work, and resources (such as libraries and internet-based information) of use to human rights activists and researchers. Two categories of resources are listed -- international and regional/national. Within the international group, resources are listed alphabetically.
Human Rights Watch World Report	A site devoted to human rights and issues from all continents.
Social Justice E-Zine	Social Justice encompasses the struggles of people everywhere who work for gender equality, democratic government, economic opportunity, intellectual freedom, environmental protection and human rights. Good for current issues.
Human Rights Issues in Tibet	A site devoted to the issues and problems in Tibet after its annexation by China.
One world , many democracies- Human Rights project	Through a series of focus questions based on the Legal Studies Stage 6 Syllabus, students explain the meaning, history and contemporary issues in Human Rights.
Amnesty International Home Page	This site will take you to reports from every corner of the globe. There is a depressing plethora of issues here on their report pages. The latest news section will deliver the current issues.
Action for Aboriginal Rights	A site that deals with current aspects as well as those from the past, such as Aboriginal deaths in custody.

Activity (H5.2)

Analyse and synthesise information on at least one issue of human rights abuse.
Evaluate the effectiveness of the legal, social and political systems in addressing the human rights issues chosen for investigation.

Revision

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