Law

Public Law and Statutory Interpretation

LAW1112
Semester 2, 2024

Topic 7:
Public Law in Practice:
Human Rights
8.1 What are human rights, and how do
they relate to public law?

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 What are human rights?
▪ What are human rights?
▪ Where do they come from?
▪ How are human rights relevant to the concepts of public law
we have discussed so far?
▪ How do we know whether something is a ‘human right’?
▪ Does a right need to be protected by law in order for it to be
a human right?
▪ Should rights be subject to limits? In what circumstances is
it ok to limit rights?

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What rights are important to you?

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Universal Declaration of Human Rights 1948
Article 1:
All human beings are
born free and equal in
dignity and rights…

Eleanor Roosevelt holding the English language version of the UDHR

Source: FDR Presidential Library & Museum

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Group activity
▪ Your group is starting a new country.

▪ You have been tasked with drawing up a list of rights that should be
protected in this new country.

▪ In your groups –
1. decide how your country will make decisions
2. draft your ‘bill of rights’ - it should contain between 6-10 rights
in order of importance and priority.

You have 15 minutes

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8.2 Which branch of government should be
responsible for protecting our human
rights?

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Group Activity

▪ Which is the better method of human rights protection?

– Legislative Bill of Rights? (Parliament)

– Administrative practices, directions, Ministerial Directions
(Executive)
– Common law protections? (Judiciary)
– Constitutional Bill of Rights? (People)

▪ What are the advantages and disadvantages of each?

Post your answers to the group padlet:

https://padlet.com/aishaismail/PLSI_EDE

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8.3 Protection of Human Rights at the
Constitutional Level?

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What rights are constitutionally protected?

S 51(xxxi) S 75(v) S 80

S 116 S 117 Implied (ss 7, 24)

To what extent does the structure of the Constitution

protect human rights?
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8.4 Protection of human rights under the
common law

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 Common law protections
The legal principles articulated and developed by judges over time, rather
than those found in statutes enacted by Parliament or a written
Constitution.

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8.5 Protection of human rights at the
Commonwealth and State level?

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The Commonwealth Approach
▪ Legislative protections
– Racial Discrimination Act 1975 (Cth)
– Sex Discrimination Act 1984 (Cth)
– Disability Discrimination Act 1992 (Cth)
– Age Discrimination Act 2004 (Cth)
▪ But what Parliament gives, Parliament can take away!
▪ Federal Parliament has previously suspended the RDA to allow
passage of legislation that would arguably contravene its protections.

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 Northern Territory Intervention
▪ What was the Northern Territory Intervention? When
did it occur?
▪ What were the background circumstances leading to
the Northern Territory Intervention?
▪ How did the Northern Territory Intervention affect the
rights of Indigenous peoples in the targeted
communities?
▪ In order to enact the package of legislation that gave
effect to the intervention, several existing laws were
affected or partially suspended, including the RDA.
Which provisions were affected or partially suspended
and what was the effect of this?
NT supreme court judge says antiracism is becoming ‘a religion or a cult’

Claims of an antiracism ‘cult’ are an excuse for the settler justice system to
ignore its failures

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Northern Territory Intervention
▪ Northern Territory Emergency Response Act 2007 (Cth) – wide range of
complex and controversial measures enacted that affected Indigenous
Australians in the Northern Territory
▪ The justification given for introducing the measures was the Little Children
are Sacred report published in June 2007, which were the findings of an
inquiry into child sexual abuse in the NT commissioned by the NT
Government.
▪ Measures included restrictions on alcohol, changes to welfare payments,
acquisition of parcels of land, education, employment and health initiatives,
restrictions on pornography.
▪ In order to enact the package of legislation, several existing laws were
affected or partially suspended, including the RDA
▪ In 2010, James Anaya, a United Nations Special Rapporteur, found the
Emergency Response to be racially discriminating and infringe on the human
rights of Aboriginal people in the Northern Territory.
▪ See the Castan Centre website for further details about the intervention

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 Commonwealth Approach
▪ In 2009, the Brennan Report was released, >35000 submissions, 87% in favour of Bill
of Rights
▪ Instead… Human Rights (Parliamentary Scrutiny) Act 2011

Key features Key criticisms

Incorporates the rights Does not require executive

contained in seven human actors to act in conformity
rights treaties to which with human rights – only
Australia is a party applies to the legislature

Requires that bills be Courts have no role – they

accompanied by a are not even empowered
Statement of Compatibility to issue a declaration of
with human rights incompatibility

Establishes a No timeframe for

Parliamentary Joint submitting a Statement of
Committee on Human Compatibility and a failure
Flowchart for assessing Rights to establish to do so does not affect
human rights compatibility compatibility of legislation the validity of legislation
with human rights

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The Victorian Approach
Charter of Human Rights and Responsibilities Act 2006 (Vic)

Section 7(2)
A human right may be subject under law only to such reasonable limits
as can be demonstrably justified in a free and democratic society based
on human dignity, equality and freedom, and taking into account all
relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve
the purpose that the limitation seeks to achieve.

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 What rights are protected in the Victorian Charter?
10. Protection from 11. Freedom
8. Recognition torture and cruel, from 12. Freedom of
9. Right to movement
and equality inhuman or forced
life
before the law degrading work
treatment

14. Freedom of 16. Peaceful 17. Protection

13. Privacy thought, assembly of families and
and conscience, 15. Freedom and freedom children
reputation religion and of of
belief expression association
22. Humane
treatment
18. Taking 21. Right to when
part in public 19. Cultural 20. Property liberty and deprived of
life rights rights security of liberty
person

23. Children in 24. Fair hearing 25. Rights in 26. Right not to 27. No
the criminal criminal be tried or retrospective
process proceedings punished criminal laws
more than
once
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 Victorian Charter: The ‘Dialogue’ Model
Legislature Executive Judiciary
S 28 – Statement of S 38 – it is unlawful for a public S 32 – laws must be interpreted in
Compatibility (SoC) must be authority to act in a way that is a way that is compatible with
tabled incompatible with a human right rights, insofar as is possible
or, in making a decision, to fail to consistently with their purpose
S 29 – SoC doesn’t affect give proper consideration to a
validity, operation or relevant human right. S 36 – if a compatible
enforcement of law interpretation is not possible, the
S 37 – where a Court has made a courts can make a declaration of
declaration of inconsistent inconsistent interpretation. This
interpretation, the responsible has no effect on validity of the Act.
minister must table a response in
Parliament. S 39 – if a person seeks relief or
remedy in respect of an act or
decision of a public authority on
the ground the act or decision
was unlawful, that person also
may seek that relief or remedy on
a ground of unlawfulness arising
because of this Charter.”

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Discussion Question
Which model of parliamentary (legislative) rights protection do
you think is better for protecting individual rights:

▪ the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth); or

▪ the Charter of Human Rights and Responsibilities Act 2006

(Vic)?

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What should happen if rights come into conflict?
▪ Case Study: Andrew Bolt
– S 18C of the RDA
– Eatock v Bolt (2011) 197 FCR 261

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Cartoon by Nicholson from “The Australian” newspaper: www.nicholsoncartoons.com.au
What should happen if rights come into conflict?
▪ Case Study: Israel Folau

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At the end of this topic you should be able to
explain …
▪ the concept of human rights

▪ the pros and cons of different branches of government protecting our human
rights

▪ whether legislative power should be subject to constitutional limitations in

order to protect human rights?

▪ the extent to which and the manner with which human rights are protected at
the federal and state levels

▪ the appropriateness of these different systems and the overall current level
of protection

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