Definitions – Rights

Right

A moral or legal entitlement to do something or refrain from doing something.

Human right (or natural, universal)

  • Those rights which are not necessarily legally enforceable, but are universal and should be accessible to all humans.
  • It is often said that right and responsibilities often go hand in hand. Where someone has a right, someone else has a responsibility to respect that right.
  • Rights that belong to all people simply because they are human beings. These rights are inalienable and cannot be legitimately removed by the government.
  • Human rights are those rights that belong to people because they are human – in a free society these rights cannot be taken away, given away or their legitimacy be reduced by government action.¬†Article 1 of the UDHR 1948.

Legal right

Those rights which are legally enforceable – made into law by statute or similar.

Implied rights

Inferred from the Constitution by the High Court, and not explicitly stated.

Express rights

  • Specifically written in law or explicitly stated from the Australian constitution.
  • s 92, s 116, s 177, s 80, s 51 xxxi, sometimes s 100

Political right

  • Rights that give citizens the power to participate directly or indirectly in the political system (the establishment and administration of government) and also in the legal system.
  • Right to assemble, political communication, vote, press.

Civil rights

 

  • Rights that are associated with human liberty and equality. These ensure people’s physical and mental integrity, life and safety.
  • Freedom against discrimination, equality before the law, right not to be subjected to torture etc., right against slavery as well as individual rights right to liberty, freedom of thought, religion.

Economic right

  • Rights that concern the production, development and management of material for the necessities of life.
  • Right to own business and hold assets. Protections against economic discrimination, as well as the rights to have adequate resources to live.

Social right

  • Rights to be able to live a reasonable quality of life. These rights give people security as they live.
  • Social welfare, protection against unfair dismissal, right to adequate standard of living, education, health etc.

Cultural right

  • Rights concerning a (minority) group’s cultural beliefs and traditions. The right to preserve and enjoy one’s own cultural identity and development, as well as protection of their cultural heritage.
  • Right to practice traditions, such as wearing a burqa, right to celebrate holidays, right to associate, religion.

Common law rights

  • Right that is granted by the court as a result of a legal judgement or traditions.
  • Freedom of expression, political communication legal representation,

Statutory rights

Those found expressly in legislation passed by Parliament.

1st gen rights (negative)

  • Essential political and legal freedoms.
  • Free speech, assembly, association

2nd gen rights

(positive)

  • Right to a reasonable quality of life.
  • Education, water, health

3rd gen/ cultural rights

(positive)

See cultural rights.

Negative rights

  • A right not to be subjected to something by someone. They oblige inaction, and limit the Gov’ts power.
  • If A has a negative right to life against B, B is obliged not to kill A.
  • Note that there is usually tension between positive and negative rights, and balance must be struck against them. (cf. Freedom of speech with right against racial discrimination, Racial Discrimination Act 1975, s 18C)

Positive rights

  • A right to be subjected to something. They oblige action, and require Gov’ts to take up action.
  • If A has a positive right to life against B, B is obliged to preserve A’s life.

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