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"Australian Positivism and Infringement on Human Rights"

Abstract

This brief jurisprudential note concerns the nature of legal positivism in the context of developments in Australian statutory and common law, and specifically in connection with the New South Wales state government's response to the "Covid19 pandemic" through the then Health Minister, Brad Hazzard MLA. The author critically analyses the government's approach which is demonstrated to encroach upon principled of human rights law as settled in various instruments of international law. The author concludes that the problems identified during this period could partly be resoled through the legislation of statutory guarantees for religious liberties.

Biographical Note

Richard Kouchoo is a Sydney based legal practitioner admitted at the Supreme Court of New South Wales, who has also been involved in various local Catholic initiatives.

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Bibliography - Law

Athavle v State of New South Wales [2021] FCA 1075


Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299


Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320


Kassam & Ors v Hazzard & Ors [2022] HCATrans 131


Korte v. Sebelius 735 F.3d 654 (7th Cir. 2013)

Bibliography - International Law

International Covenant on Civil and Political Rights (Office of the High Commissioner, United Nations Human Rights, 16 December 1966), Article 18


International Covenant on Economic, Social and Cultural Rights (Office of the High Commissioner, United Nations Human Rights, 16 December 1966), Article 2


Universal Declaration of Human Rights (United Nations General Assembly, 10 December 1948), Article 18

Bibliography - Papers, Reports and Commentary

Australian Human Rights Commission, International Covenant on Civil and Political Rights – Human Rights at Your Fingertips (n.d.) <humanrights.gov.au> (accessed: 2 June 2023)


Andrew Chung, “US Supreme Court deals blow to LGBT rights in web designer case”, Reuters (online) (1 July 2023, updated) <reuters.com> (accessed: 1 July 2023)


Neil Foster, “Ruddock Report summary and responses (Part 2)”, Law and Religion Australia (blog) (14 December 2018) <lawandreligionaustralia.blog> (accessed: 2 June 2023)


William A. Galston, “Religion and the Limits of Liberal Democracy”, Recognizing Religion in a Secular Society; Essays in Pluralism, Religion and Public Policy, Douglas Farrow (ed) (Montreal: McGill-Queen`s Press, 2004)


Institute for Judaism and Civilization, Submission No. 1227 to the Inquiry Into Same Sex Marriage Law in NSW (1 March 2013)


International Commission of Jurists, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (American International Commission of Jurists, 1985)


Menno T. Kamminga, Final Report on the Impact of International Human Rights Law on General International Law (Social Science Research Network, 1 June 2008 [revised: 21 November 2011])


Michael Quinlan, “The great divide where religious beliefs and the law meet”, The Conversation (online) (n.d.) <theconversation.com> (accessed: 25 August 2017)


Philip Ruddock (Chair), Religious Freedom Review: Report of the Expert Panel (Commonwealth Attorney General’s Department, 18 May 2018)


Nina Sun, “Applying Siracusa: A Call for a General Comment on Public Health Emergencies”, Health and Human Rights Journal (23 April 2020) <hhrjournal.org> (accessed: 2 June 2023)


Michael Taggart, “‘Australian Exceptionalism’ in Judicial Review”, Address to the 10th Annual Geoffrey Shaw Lecture at the Australian National University (9 November 2007)

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