REMEMBERING THE PAST TO SHARE A FUTURE - Recognition, Reflection and Reconciliation of Australias Indigenous History
REMEMBERING THE PAST TO SHARE A FUTURE - Recognition, Reflection and Reconciliation of Australia's Indigenous History 'Those who cannot remember the past are condemned to repeat it' 1 . INTRODUCTION Australian society portrays itself as a shining light in the western world that embraces the principles of individual freedom, equality and justice, through the rule of law and democratic state.2 But examination of this nation's Indigenous history reflects two very conflicting stories of adherence to these principles.3 Now termed the 'history wars', the debate has become a political tool to avoid acceptance of the wrongs of the past.4 The euro-centric view presents an almost utopian recollection of history detached from the bloody realities of the past and enshrined in the image of the ANZAC.5 The alternative, termed the 'dark-armband' view of history, describes the reality; inclusive of the harm, injustice, violence, abduction and dispossession inflicted on Indigenous people since the 'invasion'.6 This paper will examine the role of history in recognition of Indigenous rights and how the barriers of the past, and present, can be overcome to ensure past crimes are not repeated.7 2. THE HISTORY WARS - FICTION AND FACT. 2.1 The Myth of Terra Nullius.8 Prior to 'colonisation' Indigenous Australians had developed a highly stable society that had existed for tens of
Have the courts helped the Human Rights Act achieve its objectives?
The courts are central to the success of the Human Rights Act's 1(HRA) objectives: "Parliament has entrusted to the courts the duty to stand guard over the irreducible and universal human rights contained in the ECHR. It is therefore the duty of the courts to define the contours of our rights-based democracy." 2 Judges are required to make their judgements amidst political controversy, whilst keeping in mind that the democratically elected Parliament is supreme. This renders the task of helping the Human Rights Act achieve its objectives illuminating. There have been many criticisms of the courts approach to the HRA,3 as Bradley has found.4 Within this controversial area, I shall critically consider whether the courts have helped the HRA achieve its objectives. The HRA makes most of the rights in the European Convention on Human Rights5 (ECHR) enforceable at a domestic level. The objectives of the HRA were to "bring rights home"6 by giving further effect to convention rights, making them more accessible7 to UK citizens, and increasing their enforceability.8 These objectives are achieved in two main ways: Firstly, by creating a new rule of statutory interpretation (section 3)9 and secondly, ensuring that public bodies act compatibly with the convention rights (section 6).10 These two sections are fundamental to the success of the HRA, therefore, they will be the basis for
CRITICALLY CONSIDER WHETHER THE COURTS HAVE HELPED THE HUMAN RIGHTS ACT 1998 ACHIEVE ITS OBJECTIVES
CRITICALLY CONSIDER WHETHER THE COURTS HAVE HELPED THE HUMAN RIGHTS ACT 1998 ACHIEVE ITS OBJECTIVES The Human Rights Act 1998 (HRA)1 is one of the most ground-breaking pieces of legislation to have been passed by parliament in recent times. The act, which came into force on October 2nd 20002, gives further effect to the European Convention on Human Rights (ECHR) within domestic British law. This essay will evaluate the role the courts have played in attempting to facilitate the act in achieving its objectives and the obstacles they have faced in doing so. Firstly, in order to critically evaluate whether the objectives have been achieved, it may be beneficial to familiarise oneself with what the intended objectives actually were. One of the most fundamental objectives of the HRA is to develop domestic common law and statutes so that they reflect convention rights. Prior to the enactment of the HRA, UK courts had the option (if necessary) to look at cases from the Strasbourg Jurisprudence3 (judgements of the European Court of Human Rights (ECtHR4)) but "were legally not obliged to do so"5. However, now under Section 26 of the act, courts are required to "take into account"7 relevant ECtHR case law whilst making their judgements. Nonetheless it should be noted that the provision does not legally bind domestic courts to follow the Strasbourg Jurisprudence and hence gives them
The application of common standards necessarily treats people differently, privileging some and penalising others. Thus it becomes an imposition of homogeneity, not an acceptance of difference. Discuss
Introduction Common standards are applied, not just within the United Kingdom, but across the world in the form of human rights. Both of these sets of standards, however, necessarily treat people differently. The law and rights centre on the idea of equality for everyone, without realising that this in an impossible goal, and, most importantly, without recognising that our differences should be celebrated, not condemned. True equality cannot exist unless our differences are understood and embraced; without it we are all compared and likened to the western, wealthy male. Common Standards: International Human Rights Internationally, regarding so called human rights as a common standard across the world, the western world could be said to receive fulfilment of these rights, although not because of these rights but in spite of them. However, those in Africa and the rest of the developing world do not receive any rights, not just because they are poor but because they were born into those countries and into those conditions. A South African during the apartheid regime or a political dissident in China today could correctly claim that they have 'the right not to be discriminated against'. However, no such right exists: 'right' refers to a claim about what morality demands, not what is legally enforceable.1 Human rights claim to create common standards that unify everyone;
Selecting and discussing up to five cases decided in the UK since 2 October 2000, explain the impact Human Rights Act 1998 has had on the law in England and Wales.
Selecting and discussing up to five cases decided in the UK since 2 October 2000, explain the impact Human Rights Act 1998 has had on the law in England and Wales. In order to answer this question it is first necessary to establish what is the Human Rights Act and how it came about In the UK. It is also important to establish what the law was in England before the act came in to force and how it has changed since, analysing this by reference to Case Law. Prior to the Human Rights Act coming into force protection for Human Rights was minimal. Since the UK does not have a Bill of Rights or a written Constitution in which fundamental basic Human Rights are outlined and protected, the only protection that was available was Parliament, acting as a watchdog against the Government and passing legislation to secure citizen freedoms, i.e. The Data Protection Act 1984 and 1998, protecting the right to privacy with respect to personal information. However the problem with such protection was that Parliament could take away or interfere with rights without challenge from the courts on Human Rights grounds i.e. The Public Order Act 1986 contained restrictions on the right t peaceful protest. The Common law protection was based on the principle that we are free to do whatever is not specifically forbidden by the law. Common Law protection can be seen in Entick v Carrington1 where the
ECHR Article 8: Where does margin of appreciation lie regarding the respect for private and family life under Article 8 ECHR in cases of deportation
European Human Rights Law/EU Law Assignment One Question 1 ‘Where does margin of appreciation lie regarding the respect for private and family life under Article 8 ECHR in cases of deportation’. Discuss. ________________ Question 1: Article 8 of the European Convention on Human Rights aims to protect the individual against arbitrary interference in his or her private or family life. It is a qualified right, so that there is the possibility for state interference and states certainly have some discretion when applying the Article, thus, there is a certain ‘margin of appreciation’ given to member states. The following essay will explore the extent of the margin of appreciation in relation to Article 8 in deportation cases. The first part of the essay will give consideration to the margin of appreciation doctrine in general, as this plays a crucial role in the interpretation of all of the Convention rights. The second part of the essay will then explore the evolution of Article 8 case law in the field of deportation. Here, a particular focus will be on deportation cases of long-term immigrants, so called ‘virtual nationals’. Lastly, the current position of case law on this issue will be examined and propositions for reform, which would narrow the margin or appreciation, will be put forward. The margin of appreciation is a doctrine that plays a crucial role in
What kind of responsibility do some states have for the rights of the subjects of other states?
What kind of responsibility do some states have for the rights of the subjects of other states? Human rights are “non- derivative and fundamental elements of morality. They embody a form of recognition of the value of each individual that supplements and differs in kind from that which leads us to value the overall increase of human happiness and the eradication of misery”.[1] Due to the tragic events in Rwanda and the Balkans in 1990s, there was emergence for the international community to engage in serious discussions on taking effective measures in cases where citizens' rights are grossly and systematically violated. The essence of this question is, whether states have absolute sovereignty in charge of their internal affairs, and whether the right of the international community to intervene in the internal affairs of any other state is right for the purposes of humanitarian help. Any warnings of danger require shared responsibility and cooperation among the States concerned and the international community. Duty to prevent and stop genocide and mass atrocities lies primarily with the concerned State; the international community plays a role that cannot block calls for sovereignty. Sovereignty protects not only the state from the foreign interference, but it also imposes the responsibility of States for the welfare of its people. This principle is enshrined in
Human Rights Act 1998 is a constitutional act
The enactment of the Human Rights Act 1998 (HRA) and the incorporation of European Convention on Human Rights (ECHR) in United Kingdom law marked a turning point in United Kingdom's legal and constitutional history. This new epoch has brought about greater domestic respect for human rights under the rule of law, resulting in significant changes in public law, both in substance and in the conduct of judicial review proceedings. This essay question is concerned about the consequent impacts of this statute upon British constitution. In order to approach this question, I shall basically focus on three areas; the constitution of United Kingdom in relation with the unwritten constitution, the Human Rights Act 1998 and the consequences of this Act on the English legal system. In modern democratic nations the constitution is often to be found in a written and codified form. The United Kingdom is very unusual among those countries in not having such constitution. The British constitution is neither written nor codified in any single document; which is regarded as unwritten constitution1. However, when a nation-state possessed a written constitution, the constitutional law of such countries should be obvious and equitably clear. The law making and enforcing bodies of such countries 'must' have to behave in accordance with their constitution. There is no chance whatsoever, to override
international armed conflict
Introduction The laws of war, also known as the law of armed conflict or international humanitarian law, are codified in multilateral treaties. They reflect ancient traditions of humanity, military chivalry, and internationally agreed-upon customary norms of behavior for belligerents. Current and former military leaders, federal judges, government officials, scholars, international lawyers, journalists, human rights advocates, and others are struggling to understand, adapt, and articulate the appropriate legal framework for fighting the war on Terrorism. Laws of war should not and cannot be applied equally towards terrorists because they do not comply, acknowledge or respect the spirit of these laws. There will be three main domains of critical analysis conducted on the topics. First, should captured individuals who participate in terrorist activities be considered prisoners of war? Next, how can laws of war be legally and formally applicable towards anti-terrorist military operations? Finally, should standard and agreed upon international laws always be respected even if unforeseen anti-military measures are needed in specific situations? These questions are ones that bring about great global controversy and should be explored further in order to acquire adequate insight on the topic. History The laws of war are a complex and difficult set of laws to grasp, in order
Privacy and Public Figures
'NAOMI: I AM A DRUG ADDICT', 'MINISTER CONFESSES GAY FLING TO BLAIR', or more enticing 'TV JAMIE BONDAGE BROTHEL SHAME' While tabloid news is never free from headlines of this genre, is it unfair to fulfil the reader's curiosity and satisfy prurient taste by the commercial exploitation of public figures private lives? Or is there a greater public benefit in revealing such information? There is no universal answer to these questions which fuelled the debate, particularly following the Human Rights Act 1998, on the merits of free speech weighted against the right to personal privacy. While a law of privacy is long overdue in the UK, judges have actively construed common law principles of confidence, trust and contract to decide privacy claims. Long over a century ago, Prince Albert was successful in preventing a publisher from reproducing etchings made for the Queen's pleasure on the basis of an implied relationship of confidence. 1 Since the coming into effect of the Human Rights Act 1998, the United Kingdom is under a positive obligation to ensure the comprehensive protection of privacy under Article 8. At the same time, Article 10 entitles the media to probe and publish without restraint. Both these rights are qualified and neither has precedence over the other.2 Privacy protects individuals' dignity and preserves their personality and well-being. Privacy is a key to