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Your rights and responsibilities
Part II: The individual and the law
the nature of individual rights and responsibilities
Rights
are entitlements or permissions that can be either legal or moral in nature
legal rights are enforceable by law through the courts – for the right to exist it must be contained in and protected by the law
moral rights derive from one’s own morals, values or ethics and are not enforceable by law
values in australia
respect for the equal worth, dignity and freedom of the individual
freedom of speech
freedom of religion and secular government
freedom of association
support for parliamentary democracy and the rule of law
equality under the law
equality of men and women
equality of opportunity
Responsibilities
are legal or moral obligations or duties that a person may have to another person
legal responsibilities are enforceable by law
where there is a right, there will often be a corresponding responsibility
Rights are either protected by common or statute law
Statute LawStatute Law Common LawCommon Law
Defined
protected by statute is the right not to be
excluded or restricted on the basis of race,
colour or ethnic origin
rights are protected by common law, particularly in contract law and tort law
Example
Racial Discrimination Act 1975 (Cth)
Donoghue v Stevenson
1932
the main distinction between moral and legal rights is that legal rights are enforceable by law, but moral rights are not
people can debate moral rights from different ethical viewpoints and may disagree on their existence or scope
a legal right is embodied in law and its existence cannot be disputed, although it can be amended through law reform
legal and moral rights
one example of a controversial moral right claimed by some is the right to euthanasia, or the right to choose the manner and place of one’s own death
this is not a right recognised under Australian law
Euthanasia
A bill of rights is a formal document that officially enshrines the minimum human rights that every citizen is entitled to, and binds the government to comply with those rights.
Bill of rights
Australia does not have a bill of rights, but most other developed countries do
Victoria and the ACT have adopted their own state charters of rights, but the Commonwealth has refused
a recent Commonwealth inquiry into a bill of rights found 87 per cent of the public would support its introduction
rights in australia
Bill of Rights in Australia
Children in detention centres
Individual’s rights and responsibilities in relation to the state
At times individual rights and their responsibilities come into conflict with the state
Smoking bans on Sydney beaches
1960/70s conscription in Vietnam War
Many individual rights have been challenged since Sept 11 2001, in order to protect citizens from terrorism
Saggin Trousers legislation, usa
freedom of expression
The Australian Constitution protects certain individual rights:
s 80: the right to a trial by jury
s 116: freedom of religion
s 117: the right not to be discriminated against on the basis of one’s state of residence
s 51: the right to compensation if one’s property is compulsorily acquired for any purpose in respect of which the Commonwealth government has the power to make laws.
In the 1990s, the High Court begun interpreting the constitution to include implied rights rather than just expressed rights
Defamationthe act of making statements or suggestions that harm someone’s reputation in the community.
Example Case: Mercedes Corby v Jodie Power
defamation Chaser’s War on Everything take on Mercedes Corby
International protection of rights
Treaties become binding on the citizens of an individual nation either automatically upon ratification, if the treaty is self-executing, or once the nation has passed domestic legislation(Australia)
Declarations are different to treaties because they simply state to parties intentions e.g UDHR 1948
UDHR 1948 animation
Un in australiaUN official questions the legality of Detention Centres
Limitations of international law protecting rights
Nation-states sign international law not individuals
Nation States may ignore or refuse to sign international law (due to State Sovereignty) which may impede on human rights with their country
Self Determination
the right to determine one’s own acts without external influence; the freedom of the people of a given territory to determine their own political status or independence from their current state
Example: East Timor Intervention of the UN 1999
rights of indigenous people
The United Nations declared a decade for World Indigenous Rights from 1995 to 2004
One way in which self-determination is demonstrated in Australian Indigenous communities is through the use of tribal law e.g circle sentencing