Australian Law, Bill of Rights - Essay Example

The protection ………….unlikely to be deterred by a Bill of Right and judges who say that they are acting unlawfully’’. Discuss. Bill of rights has its origin in the Bill of Rights of the United States of America. After the United States became independent of the British Colonial Rule, by 1787 American leaders in their attempt to consolidate themselves brought out a draft Constitution authored under the stewardship of James Madison which was to have been ratified by the then thirteen participating States. Unless three fourths of them approved, the Constitution could not come into force. A federal government, a capital for the whole of the country, single currency, common court at the highest level could become a reality only by its adoption (Hmilton John, 2004, p 18). There was provision in it for being amended again with the approval of at least three fourths majority of the States. Three of the delegates to the constitution convention namely Edmund Randolph and George Mason of Virginia and Elbridge Gerry of Massachusetts refused to sign the constitution for the reason that it did not have a bill of rights that could guarantee basic rights of the citizens (Fradin Dennis Brindell, 2008, p 11-15) It was only by June, 1788 New Hampshire became the ninth state to approve the constitution. More states were prepared to sign the constitution only if the bill for the above said rights was added to the constitution. It was only after James Madison was convinced that such a bill was necessary, he proposed 17 amendments in 1789 and by 1791, ten of the amendments were approved by three fourths of the states. These are the ten amendments known as Bill of Rights today. (Hmilton John, 2004, p 18) Australia has no such bill of rights in its Constitution which was enacted in 1900 nearly after 110 years of enactment of the U.S. Constitution. While the U.S. Constitution was enacted after its independence from the U.K., the Australia’s constitution was enacted while it was under the colonial control and U.K.’s name itself finds a place at the outset of the document. Prior to its adoption, attempts were made to insert certain rights in it at the instance of Samuel Clark. Four rights that were proposed were right to a jury trial, right to the state citizenship, right to equal protection and right to freedom and non-establishment of religion. But in 1898 Melbourne Convention, such rights were resisted by the States since they found it to be binding on them as if the States were inherently anti-people. The States felt that it was offensive to be seen in bad faith and remain restrained explicitly. However there were not much resistance on the Commonwealth government being restrained. As these proposals amounted to insult a representative and responsible government and especially it would invalidate colonial laws that restricted employment of Asian workers, they were not pursued. South Australia’s Alexander Cockburn commented on the due process clause as a bad reflection on country’s civilisation. He stated that appeared odd to prevent the states by a provision in the constitution from committing “the grossest injustice”. In fact, the absence of such provisions in the Australian Constitution evidenced its “modernity and democratic character”. In 1942, Chief Justice of Australian High Court Sir Owen Dixon observed that such enactment amounted to doubting the wisdom and safety of legislative powers without restrictions or fetter to the chosen representatives of the people. There is no provocation to include such provisions going by the clean history of no tyrannical practice of the Governments in the past. The 1944 referendum to give powers to the Commonwealth Parliament in respect of fourteen areas also was lost. (Bymes, Charlesworth and McKinnon, 2009, p24-26) Soon after signing of the Human Rights Treaties of the U.N in 1972, Australia tried enacting Human Rights Act but achieved it only in 1981 with the enactment of Human Rights Commission Act 1981 after much resistance by the legislators as it was unnecessary in Australia’s parliamentary democracy. .But it gave only limited rights. Again during 1983, there was attempt to introduce a national bill of rights but it resulted only in the enactment of Human Rights and Equal Opportunity Commission Act 1986 replacing the Human Rights Act 1981 which expired after five years. The 1988 referendum to amend the constitution was rejected by a large 69 percentage. In October 2000, draft Bill of Rights was released by the Australian Democrats and it was redrafted and introduced before the Senate in June 2008 (Bymes, Charlesworth and McKinnon, 2009, p27-33). Pros and cons for introduction of the Bill of rights can be adduced. Arguments against are that such a move would be questioning the parliamentary sovereignty and it would amount to vote of no confidence in legislatures and people. It would put limitations on law even if welcomed or favoured by the people. In a representative democracy, will of the people is supposed to be reflected in the national laws, as such basis rights are in the heart of the people. When the democracy is not a mockery in Australia and it is really working, trust should be placed on the legislatures such that no laws in derogation of human rights will ever be made (Lawfundation, 1997). It is like enacting that a father or mother should not kill their children or torture them. No law is necessary for such prohibitions which are implied. So also in a democracy which is for the people, by the people and of the people (Lincoln), at no stretch of imagination can it be expected that laws will be anti-people against their fundamental rights. And as they are implied in a democracy, the Constitution need not dictate to the legislators. Arguments in favour would be that democracy can have defects. Thus, if in a democracy every thing works well, there is no need for a bill of rights. But in Australia, it is rather a majoritarian autocracy under the garb of democracy (Lawfoundation, 1997). Such a bill of rights is to protect minority from the oppression of majority. In Australia, it is the will of the majority either in voting in the Senate or in referendums. Hence it is all the more the more essential to protect minority and the constitution should serve as a master who ever comes to legislate, sit in the courts or act as an executive. Discussion and conclusion But for the bill of rights as in the U.S.A, this controversy would not have been there in other countries. Unlike in Australia, U.S.A. has a long history of racial hatred and the with severance with the ruler like the Monarch of the U.K., the bill of rights was the bridle at the right time put in place for the newly elected representatives of the people from acting in an unfettered manner. Australia became independent long after the U.S.A became and in the mean time Australia’s people and rulers became more matured. Except for the Aboriginals, there is no oppression of blacks or other immigrants. Recently in 2008, the government of Australia made a public apology to the aboriginals for the wrongs committed them who had been in Australia for more than 40,000 years before Australia became British settlement. Hence the notion of bill of rights strikes at the root of their civility and the very thought of subjugation of basic human rights is an anathema. All said and done, man is basically an animal. All laws are only in an effort to self discipline the men themselves. When they can have laws for all other things except for the human rights, it does not appear to be well intended. Instead of harping on prestige and false pretensions, the legislators should bring in the Bill of Rights into the constitution so that the minority feels safe and secure. Tracing the history of Australia’s attitude towards enactment of bill of rights, it appears even if the Bill of Rights is made part of the constitution, the mindset of the politicians is not going to change. In the name of parliamentary sovereignty, the bill of rights would remain a dead letter in the Constitution with the rulers continuing their antagonism. Politicians in a country come from the same herd and no new breed of politicians will ever come with the changed mindset. Fortunately, the U.S.A. had brought it long before the politicians matured as a group. But for its enactment 220 years ago, it is highly unlikely it would have been brought ever after. After all, the politicians are acting in proxy for the ex-rulers with some cosmetic changes in their attitude. In Australia, people appear to have been brainwashed so as to not favour the enactment of bill of rights in referendums. It is quite ironical that they should feel such rights are unnecessary. Works Cited Bymes Andrew, Charlesworth Hilary and McKinnon Gabrielle, Bill of Rights in Australia: History, Politics and Law. UNSW Press 2009 Fradin Dennis Brindell. The Bill of Rights. Marshall Cavendish. 2008. Hamilton John, The Bill of Rights. ABDO Group, 2004. Lawfoundation.net, A Bill of Rights for Australia-But do we need it? Web.22 March 2010 Read More