Should Australia Have a Bill of Rights?
Back between 1992 and 1994 in Australia, the Human Rights and Equal Opportunity Commission together with the Australian National University (ANU) which was a center for Public Law made a publication that contained volumes of essays explaining the desirability for a Bill of Rights. The survey conducted by ANU reported that over 70% of the Australians where for a Bill of rights. 8% of the citizens were against a Bill of Rights, and 22% could not decide on the issue. On asking whether they wanted a referendum to assist in the determination of the adoption of a Bill of Rights, over 85% of Australians supported necessity for a referendum. Their argument was that integrating a Bill of Rights and implementing it to the latter, could ensure a strong national identity for Australians. The statistics explain how much the citizens of Australia are eager to get a Bill of Rights.
Regardless of its outstanding reputation in human rights recordings, the legal system has not been vigilant enough when providing a remedy to those whose rights have been breached. In the past decade or so, there have been many predicaments linked to human rights. Adults and even minors have been detained by punitive rules (immigration laws), and those with disabilities together with the elderly have been treated without respect and dignity. This is the same case with the mentally ill, who have been neglected because of their health conditions. The liberty of the citizens is minimized by government actions and laws. Just like common law in England, where the remedies where limited, the laws in Australia hardly provide enough or adequate mechanisms to give remedy to the citizens who are subject to breach of human rights (Byrnes, Charlesworth & McKinnon, 2008, p.16).
Different people have diverse reasons for supporting the entrenchment of the Bill of Rights in the constitution. Many people also have reasons to deny the Bill. There is also an argument on the introduction of statutory Bill of Rights in accordance with the international provisions and jurisdiction. Despite the situation in Australia, where there is currently no Bill of rights both in the statutes of law and the constitution, the government of Australia has to appreciate the fact that obligations and rights of the citizens protects the manner in which they relate, and provides a remedy to parties whose rights are infringed in any way. The rights and obligations emphasize on the doctrines of equity and enhance peace and integration of the citizens. By assuming the people’s need for a Bill of rights, the Australian government is, in fact, going against the people’s rights, whose pleas are not attended to (Byrnes, et al., 2008, p.2).
Many theories have repeatedly undertaken attempts that justify the human rights which have to be accepted both in international and also national levels. The basis of the theories includes religious justifications and attributes, rights that have been conceptualized and retrieved from essential natures of humanity (and human basic needs and wants), the utilitarian approaches, whose aim is to define the role of humans in the duty to ensure the welfare of others in the community and society at large. There are also historical provisions that explain how rights and obligations are a counter in case of social wrongs especially in civil cases. The Australian citizens have the right to enjoy a Bill of Rights that is capacitated to provide them with options on how best to flourish human conduct and opportunity. Countries that adopted a Bill of Rights now enjoy social, political and economic freedom and development, due to the rules governing the people in terms of government and citizen relations (Byrnes et al., 2008, p.10).
Evidently, there have also been a number of critiques on the idea of human rights recognition. One of the most appealing critiques focused on the fact that despite many nations have the Bill of human rights, the legal systems and governments of those countries are not consistent with implementing the Bill. The argument is that the rights may be in the constitution or constituted in other written sources of law, but they are not practicable in the society. This could be through corruption in the courts and poor management of the legal system. Therefore, a framework that is well established has to be adopted, which will provide and define how courts should react on issues of human rights. There has also been criticism of human rights, in that the rights are copied from other countries, especially the western cultures, instead of concentrating on community characteristics. This may be the reason why the Australian government has persistently been slow to adopt a Bill of Rights, the fear of diverse cultural implications (Byrnes, et al., p.12).
Rights were one of the main agendas when drafting the Australian constitution especially in the 19th century. Formal discussions concerning federation took place in Melbourne around 1890. After the federation conference, a drafted constitution was underway, and it was guided by the U.S. constitution. The rights included in the constitution were of American heritage. They included the right to trial, the right to immunities of state citizenship and privileges and the right to equal protection under the provided law. There was also the freedom to express one self and also to choose a religion. Ironically, commentators and other critics regarded the lack of individual rights in the Australian constitution as being modern and democratic (Byrnes et al., 2008, p.25).
Human Rights issues are a heated ground of debate, severally in the government history of Australia. In the 1960’s, during Fraser’s government, the issue or a Bill of Rights emerged. More resilient forces came up demanding the adoption of a Bill of Rights. The government’s argument was that there was no need for a comprehensive and detailed Bill of Rights, because there was enough to be given in the form of remedy, due to the existence of procedural remedies, common law and also statutory remedies, which were already in action. There has been a struggle for a Bill of Rights, through referendums, treaties and proposals. Examples include the 1988 referendum, which aimed at realizing how many citizens were for a Bill of Rights and those against it. One of the fundamental aspects that were addressed was whether or not the constitution of Australia protected the democratic rights of citizens. The referendum focused on the amendment of the constitution, which was expected to provide a diversified range of political and civil rights (Byrnes et al., 2008, p. 32).
In the year 2000,-month of October, Democrats in Australia drafted a Bill of Rights Bill that was to be open for comments. The draft was more intense with issues such as state laws being addressed intensively. A campaign sponsored by an online magazine known as New Matilda was initialized and drawn from different sources such as instruments of international human rights, which included the ICESCR and the ICCPR. When debating on the Bill of Rights for Australia, there are two striking issues; one is the fact of encroachment on legislative powers and undermine of the federal system. Constitutional drafters, such as those of the 19th century, were anxious to implement equality and protection of rights, and ensure some state laws were denied and replaced, such as those that fully restricted the employment of Asian workers. The other concern was on whether or not the provisions of a Bill of Rights could be compatible and in accordance with the Parliamentary Democracy in Australia (Byrnes et al., 2008, p.36).
Despite the unavailability of the Bill of Rights in the Australian constitution, there are other revenues to seeking redress. This is through the national human rights organs that provide a remedy in cases where there is hardly any remedy in the legal systems of Australia. Australians who might in any way feel that their rights are not recognized in the treaties and constitutional provisions can forward their cases of action to the UN human rights body. However, this is only possible when the Australian legal system provides inadequate remedies (Byrnes et al., 2008, p.38).
There has been heated debate of whether the Australian government should adapt an appropriate charter or bill of rights, depending with the advantages. Proposals have been given to determine the right models to be adopted. An evaluation will substantially depend on the necessity for a bill of rights that will form part of an instrument, be it the constitution or statutory provisions. The differences arise when there is a proposal that the Bill of Rights will be entrenched in the Australian constitution, hence giving mandate to the courts to treat legislative provisions as being invalid or offer additional remedies. The model should, therefore, be in a position to ensure the Bill guarantees both social and economic rights, not forgetting the political and civil rights of both the state and the citizens (Byrnes et al., 2008, p.57). The model to be adapted should appreciate the issues on international human rights…