Human Rights Lesson 9
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Apr 30, 2024
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Human Rights Lesson 9: The Incorporation of Human Rights into Domestic Law
Video Notes:
Domestic laws: make international rights more enforceable
Process of incorporating rights:
Step 1 = international treaty (Difficult to enforce as an individual)
Step 2 = State signing treaty (Not enforceable in domestic law)
Step 3 = Ratifying a treaty (Enforceable in the high court)
Step 4 = Legislation (enforceable in domestic law)
Ratifying = where the gov commits to putting right in law
Activity 2:
1. Research: What is the difference between a monist and dualist legal system? Identify
which of these Australia is.
A dualist system treats the international and domestic systems of law as separate and
independent.
Monist systems = when the country’s government ratifies a treaty, the treaty automatically
becomes law in the country as if it were an act of parliament.
2. Describe the sources from where Australia derives its protection of Human Rights
International treaties
Australian constitution
Common law
Statute law of the commonwealth, states and territories
Activity 3: Complete the following Case Study demonstrating this in action: Toonen vs
Australia
Activity Questions:
Identify the complainant, the date of the original submission and the date of the
Committee’s meeting.
Summarise the facts of the complaint. What was the issue, who was the complaint against
and what were the circumstances of the complaint?
Explain why the complainant took the complaint to the Human Rights Committee. Under
what international treaty and by what process was the complaint brought?
Briefly explain the main arguments of the complainant against the state party.
The compliant maintained that Tasmanian law discriminated against men based on their
sexual activity and orientation and that they were unequal before the law.
Briefly explain the arguments of the state party in defence.
Domestic laws are reasonable for interfering with the right to privacy. The laws help protect
against the spread of HIV and therefore are justified on public health grounds. Also, the laws
help uphold the moral fabric of society.
Explain the outcome and briefly explain the reasoning of the Committee in reaching its
decision.
The human rights committee found that Tasmanian laws interfered with the human right to
privacy and ordered Australia to repeal the incompatible rule. The law violated article 17 of
the ICCPR without any reasonable justification for that violation
Using the information in Cambridge Legal Studies — Year 12, explain the consequences of
the decision and the events that followed.
Tasmanian government refused to repeal the law. The Australian government enacted the
Human rights (sexual conduct) Act 1994 (Cth). However, Tasmania still refused to repeal
their law. Therefore, Tasmania was taken to high court and the high court deemed the law
illegal.
In light of the processes and the outcome that you have analysed above, critically evaluate
the effectiveness of international human rights instruments and the international legal
system in influencing change in human rights around the world.
International human rights instruments such as treaties and declarations are effective at
defining a benchmark for human rights and having an educative effective on the human
rights all people are entitled to.
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