The Meaning and Development of Human Rights (VCE SSCE Legal Studies): Revision Notes
The Meaning and Development of Human Rights
What are human rights?
Human rights are basic freedoms or standards that promote and uphold the dignity of all people, and are guaranteed by a moral sense of duty or by the law. They are moral or legal entitlements that belong to all people, regardless of race, nationality, religion, gender identity, age, economic status or any other attribute.
There is no single universally accepted definition of human rights. The meaning can differ between people depending on who they are, what they believe, and where they live. However, most definitions share common themes such as respect, dignity, equality and justice.
Definitions from key organisations
The Australian Human Rights Commission defines human rights as:
- A set of moral and legal guidelines that promote and protect recognition of our values, identity and ability to ensure an adequate standard of living
- The basic standards by which we can identify and measure inequality and fairness
UNICEF (the United Nations humanitarian organisation protecting vulnerable children) defines human rights as standards that recognise and protect the dignity of all human beings. UNICEF emphasises that human rights are universal and inalienable (absolute) - all people everywhere are entitled to them, no one can voluntarily give them up, and others cannot take them away.
The development of human rights
The nature, definition and characteristics of human rights have developed significantly over time. Rights that are now considered universal were not always available to all people. Australian governments have been committed to developing and strengthening human rights, but this has been an ongoing process with a history of significant injustices.
Historical examples of rights denied
Women's rights:
- When Australia was created as a nation at Federation in 1901, women could not vote in federal elections. This changed in 1902 when they gained voting rights
- Women were not allowed to drink in public bars until the 1970s
- Until 1956, women employed as teachers in public schools had to resign once they married, forcing them to choose between their career and marriage. This 'marriage bar' was eventually repealed following a movement in the 1950s
First Nations peoples: First Nations peoples have been denied rights and suffered significant injustices since British colonisation of Australia (described by many as an invasion) in the late 1700s. Key injustices included:
- They were not technically recognised in the Australian population count until 1967
- They were denied basic rights including entitlements such as age and disability support pensions
- Government policies included the forcible removal of First Nations children from their families, creating the 'Stolen Generations'
These injustices have resulted in intergenerational trauma - a psychological response to highly distressing, stressful or oppressive historical events that is passed on to future generations.
The White Australia Policy:
- Implemented in 1901, this policy was designed to limit non-British migration to Australia
- It was an openly racist policy based on the false idea that non-'white' groups were less advanced and would take employment from 'white' people
- Non-British migrants who were accepted were expected to adopt 'Australian' culture and language quickly, with limited access to benefit entitlements
- The policy was ultimately abandoned and formally abolished in 1973, when the government established a policy of multiculturalism - the idea that people with distinct cultures and ethnicity can coexist peacefully and equitably in a single country
LGBTQIA+ rights: The recognition of LGBTQIA+ rights in Australia has been a gradual process:
- Same-sex sexual activity between men was considered a crime until it was decriminalised from the 1970s onwards
- Tasmania refused to repeal its anti-homosexuality laws until 1997, becoming the last Australian jurisdiction to do so
- Marriage equality was not recognised in Australia until 2017, when the law was changed to ensure same-sex couples have the same right to marry as other Australians
Current human rights issues
Despite progress, human rights issues and injustices still need to be addressed in Australia:
Women's rights continue to face challenges:
- Women continue to experience human rights abuses and discrimination, including violence against women (a widespread global human rights abuse)
- Gender pay equality has not been achieved. In 2022, Australian women were paid on average 13.3% less than men for doing the same work
- Globally in 2023, women were paid on average 17% less than men for equal work
The Universal Declaration of Human Rights
Following the end of World War II, Australia has increasingly protected human rights by becoming a signatory to international agreements. As one of the founding members of the United Nations (UN) - a major international organisation established after the Second World War to maintain international peace, security and cooperation among nations - Australia was involved in drafting the Universal Declaration of Human Rights (1948).
On 10 December 1948, 48 countries (including Australia) adopted the Universal Declaration of Human Rights. This international document sets out basic human rights that all nations and governments should strive to promote and uphold. It is considered the basis of international human rights law. Each year on 10 December, many people around the world celebrate International Human Rights Day.
Key rights in the Universal Declaration of Human Rights
Fundamental Rights Established by the UDHR:
The UDHR establishes fundamental rights including:
- All people are born free and equal in dignity and rights
- Everyone is entitled to the same rights and freedoms without discrimination based on race, colour, sex, language, religion, political opinion, nationality or other status
- Everyone has the right to life, liberty and security of person
- No one should be subject to slavery, torture, or cruel or degrading treatment or punishment
- Everyone is equal before the law and entitled to equal protection without discrimination
- No one should be subject to arbitrary arrest, detention or exile
- Everyone is entitled to a fair and public hearing by an independent and impartial body when determining their rights and obligations or facing criminal charges
- Everyone charged with a criminal offence has the right to be presumed innocent until proven guilty in a public trial
Impact of the UDHR
The Universal Declaration of Human Rights has now been adopted by all 192 members of the UN. It has inspired the creation of more than 80 international treaties, declarations and agreements, and numerous international human rights organisations.
International treaties and declarations
Understanding international agreements
International treaty (also called a convention or covenant): A legally binding agreement between countries or intergovernmental organisations, in which they undertake to follow the obligations set out in the agreement and include them in their own local laws. International treaties give rise to legal rights and obligations governed by international law.
International declaration: A non-binding agreement that sets out the aspirations or intentions of the countries or international organisations who are parties to the declaration.
The process of adopting international treaties
Becoming a signatory: When a country becomes a signatory to an international treaty, it demonstrates its intention to adopt the treaty and incorporate it into its domestic law at a later date. However, being a signatory alone does not make Australia bound by the treaty under international law.
Ratification: For Australia to become legally bound by a treaty under international law, Parliament must pass statute law (legislation) to approve and adopt the rights outlined in the treaty. This process is called ratification. When a nation ratifies a treaty, it becomes legally obligated to implement the rights contained in the treaty.
Incorporation into Australian law: For the treaty obligations to be incorporated into Australian law so that Australians can exercise their rights, Commonwealth Parliament must pass statutes to incorporate the rights and principles into domestic law.
International law versus domestic law:
International law is separate from Australian (domestic) law. International law:
- Establishes rules, guidelines and responsibilities of countries and international organisations
- Governs their relationships with each other
- Establishes principles about how countries should treat their citizens
- Generally does not govern the behaviour and conduct of citizens within Australia (this is the responsibility of Australian domestic law)
Major international human rights treaties and declarations
| International treaty or declaration | Purpose |
|---|---|
| Convention relating to the Status of Refugees (1950) | Establishes legal responsibilities for treatment of refugees and asylum seekers. Refugees cannot be sent to places where they will face persecution. They should have the same rights as citizens regarding freedom of religion, basic education, social security and access to the legal system. Refugees have the right to identity and travel documents. |
| International Convention on the Elimination of All Forms of Racial Discrimination (1965) | Aims to abolish laws that discriminate based on race, colour, descent or ethnicity. Promotes laws and policies that encourage racial tolerance and understanding. |
| Convention on the Elimination of All Forms of Discrimination against Women (1979) | Protects human rights of women. Promotes implementation of laws and systems ensuring women are equal under the law and not discriminated against based on sex. |
| Convention on the Rights of the Child (1989) | Protects rights of all children by ensuring protection against discrimination and punishment based on parents' or guardians' status, activities or beliefs. Ensures the best interests of the child are the main consideration in legal system dealings. |
| Convention on the Rights of Persons with Disabilities (2006) | Promotes, protects and ensures full and equal enjoyment of all human rights and fundamental freedoms by all people with disability. Promotes respect for their inherent dignity. |
| Declaration on the Rights of Indigenous Peoples (2007) | Establishes a universal framework of minimum standards for Indigenous peoples worldwide. Australia announced support in 2009 but has not yet formally adopted the Declaration through comprehensive statute law. |
The principles contained in the Universal Declaration of Human Rights have been incorporated into the national (domestic) laws of most countries worldwide. As a UN member, Australia has various federal, state and territory laws that recognise and uphold basic human rights and freedoms, including the Racial Discrimination Act 1975 (Vic) and the Equal Opportunity Act 2010 (Vic).
How are human rights protected in Australia?
In Australia, human rights are protected through three main methods:
1. Statute law
Statute law is law made by parliament, also known as Acts of Parliament or legislation. Commonwealth, state and territory parliaments have passed legislation to protect a wide range of human rights, including:
- Legislation to uphold international treaties and declarations that recognise and promote human rights
- Specific human rights legislation in some jurisdictions
Victoria, the Australian Capital Territory and Queensland have passed specific human rights legislation to ensure protection of basic human rights within their jurisdiction. For example, Victoria has the Charter of Human Rights and Responsibilities Act 2006 (Vic), which sets out the basic rights, freedoms and responsibilities of Victorian people.
2. Common law
Common law is law made by judges through decisions made in cases, also known as case law or judge-made law. Over the years, Australian courts have enforced various human rights in their judgments, including:
- The right to silence (the general right of an accused not to be required to answer police questions or give evidence at their trial)
- The right to a fair trial
3. The Australian Constitution
The Australian Constitution is a set of rules and principles that guide the way Australia is governed. It is set out in the Commonwealth of Australia Constitution Act. The Australian Constitution protects a limited number of human rights, including five express rights that are specifically written in the Constitution.
Key Points to Remember:
- Human rights are basic freedoms or standards that promote dignity for all people, guaranteed by moral duty or law, belonging to everyone regardless of their characteristics
- Human rights have developed significantly over time - groups including women, First Nations peoples, migrants and LGBTQIA+ people have historically been denied rights that are now recognised
- The Universal Declaration of Human Rights (1948) is the foundation of international human rights law, adopted by all 192 UN members and inspiring over 80 international agreements
- International treaties become binding on Australia through ratification - when Parliament passes legislation to adopt the treaty's rights, which must then be incorporated into domestic law
- In Australia, human rights are protected through three main methods: statute law, common law, and the Australian Constitution
- Current human rights issues that still need addressing include gender pay equality and violence against women