Pros and Cons of a Human Rights Bill, Act, or Charter for Australia - Coursework Example

Pros and cons of a Human Rights Bill/Act/ Charter for Australia Name University Pros and cons of a Human Rights Bill/Act/ Charter for Australia Human right bill legally establishes the principle of respect for individuals. The rights are universal and protect people, groups, minorities and races from any oppressive rule or government. Countries that are signatory to Universal Declaration of Human Rights that resulted in the wake of World War II enshrine the Bill of Rights as a document that assure modern rights to its citizens. Australia is a signatory to all five international treaties which make up International Bill of Human Rights. Additionally, Australia takes Western democracy. However, despite the fact that it has signed all these treaties, none is legally binding and does not have the Bill of Rights. Repeated attempts by politicians to get the Bill through Parliament have failed. In turn, the need for or against having such a Bill in Australia is a controversial topic and this essay critically looks at the pros and cons of having or not having such a Bill enshrined in law. The essay will specifically highlight the range of options for countries towards implementation of human rights, the current situation in Australia and alternative legislative options available for Australia.  Individual countries/states are required by the UN Convention to establish framework with a single or multiple mechanisms that promote, protect and monitor the implementation of the Convention. A national human rights institution act as the likely form that promote compliance and national monitoring in line with the Convention. While national human rights institution may cover a wide range of institution such as religious, trade unions, NGOs and mass media, total protection is assured when the government departments, the legislature and the courts act as specific institution that promote and protect such rights. Most States establish these rights in the constitution. However, Australia law comes from the three areas including the Constitution, common law and legislation and most of rights are provided from common law and legislation (Davies, 2014). Countries can chose to implement the Convention as it is or consider the most important parts as required. The UN Convention does not impact on individuals in various countries without the support and the goodwill of each government. Though the Convention is legally binding for each country that is a signatory, the Stats make it real through the intentions of its actors. The process is done through ratification and compliance with the obligations. The Convention offer some margins of discretion whereby a country can choose measures to implement. The UN in general cannot sanction any state for non-compliance (Carver, 2010). Other options for implementation of human rights though less common are variety of specialized national institutions. These specialized entities protect the rights of various groups of persons like individuals with disabilities, linguistic and ethnic minorities, refugees, women, children and indigenous populations. For instance, India has a National Policy for Persons with Disabilities (NPPD) with Central Coordination and State Coordination Committee. These committees oversee various agencies such as National Rehabilitation Council and that which deal with the welfare of people with Autism, Mental retardation, cerebral palsy and multiple disabilities (General Assembly resolution 48/134, 1993). Most national institutions that exist are classified according to two broad categories including ombudsmen and human rights commissions. Overall, when a country establishes a mechanism to meet the Convention’s requirements, it has to take into account the principles of a national institution to protect and promote such rights. Currently, Australia does not have a Bill of Human Rights in its constitution. Some delegates were in favor of having a section similar to that in United States Constitution in 1998. However, majority felt that the existing Parliamentary system as well as independent judiciary would sufficiently guarantee the traditional rights and freedoms (Fitzgerald, 2009). However, some express rights were included in the constitution among them the right to trial by jury in Section 80, right to just compensation in section 51 (xxxi) and right against discrimination of out-of-State residency in section 117. Currently, tow Australians states including Victoria and ACT has a Charter of Rights where students who formed the national delegates voted in favor of the Bill. However, and overall, young Australians were in support of 1988 referendum upholding the initially held position by the founding fathers (Davies, 2014). According to Sawer, Abjorensen & Larkin (2009), the decision not to have a Bill of Human Rights was reached in the federation debates of 1890s. In addition to some of the rights protected in the Constitution mentioned above, Australia human rights rely heavily on democratic process. Lack of Commonwealth Bill of Rights like other common law countries does not mean that Australia does not have some legislation protecting human freedoms. There are specific legation that prohibit discrimination for instance Racial Discrimination Act of 1975, protection of privacy, directions on criminal trial procedures, fair administration of and exercise of power and employment rights (IPA Factsheet, 2012). In turn, the choice not to have the Bill of Rights may show Australia preference to protect human rights through the use of patchwork of legislation which are not proactive but reactive as they are created only when required by the community. It may also show that the courts usurp more powers to determine the protection of individual rights rather than having them in the Bill of Rights. The Bill of Rights confers authority to the citizens as the government can only change them through a referendum proposal. Though Australians enjoy the rights and freedoms of speech and quality health care, the government can stop them anytime as the law does not specify that the citizens have those rights. Anything that is not formally listed can be taken away and Australians may do nothing about such a government action (French, 2009). The situation leaves Australia to consider an alternative way to assure its citizens the relevant and universal rights and freedoms. To compare with other countries, it appears that Australia should have a Bill of Rights. However, there are a number of issues to consider on pros and cons of a Bill of Rights. In argument for the Bill of Rights, it is possible to argue that Australian law does not offer protection of fundamental freedoms (Davies, 2014). The Bill would give power of action to those who are powerless. For instance, the rights of Aboriginal people and migrants who have been disadvantaged compared to other Australians. These people will allude to specific right to force the government to promote their welfare. In Canada where there is a Bill of Rights, Indigenous populations have been living standards and self-governance compared to Australia (Nettelbeck & Smandych, 2010). The Bill of Rights would promote Australia to compare with the rest of the world. In fact, as a developed economy, Australia can lead as an example to many other countries who fail to promote human rights and dignity. As it has represented the popular Western standards of democracy, it can further lead the other Asian countries like China to adopt a more democratic and people-centered freedoms. The Bill of Rights is a means through which Australian democracy can be enhanced and further the protection of the rights of minority. In contemporary society, minority groups like homosexuals and prostitutes may not have their rights upheld without a Bill of Rights (Taylor, 2013). The media will also access a good environment to contact such minority groups and advance their rights. Having a Bill of rights would ensure that the rights are put above politics and allow arbitrary governmental action. The people of Australia must have powers to determine any subjective government action that may threaten their current or future rights. Australians can object to any action or inaction of the government that may be elected and fail to respect the rights or legislation that furthers some specific rights. Other core advantages of having a Bill of Rights is to improve government policy and administrative decision making, serve a vital educative function and promotion of tolerance and understanding among different people in the community (Izzard, 2009). There are reasons against the Bill of Rights that has led most people to prefer the outcomes of 1988 referendum. It is obvious that rights and freedoms are well protected in the country despite the absence of the Bill of Human Rights. The High Court protects rights through continuous interpretation of the common law and the Constitution. It is also arguable that having rights listed in Acts make little or no difference in actual protection of rights (Goidel & Freeman, 2015). Stone, Goldsworthy & Campbell (2013) further observes that, there are so many countries with whose Constitution having the Bills of Rights and the stated freedoms are never upheld. According to Chappell, Chesterman, & Hill (2009), Australia’s political system has the capacity to protect the rights of its citizens as it is a representative and democratic. A Bill of Rights will restrict rights since by defining a right, it will actually limit it. The court will only interpret the phrases without referring to the contexts, changes in the society and national or local considerations. For instance, the Bill of Rights may not account for specific circumstances like the way Racial Discrimination Act of 1975 consider the inherent nature of Aboriginal people and Torres Islanders in coming up with universal rules. The Bill would also be undemocratic as unelected judges will override the parliament judgment. It would politicize the judiciary and open a floodgate of cases making it expensive due to increased amount of litigation. People with various interests would become obsessive and try to define their interests according to little understanding of the Bill of Rights and massive comparison with various jurisdictions (Weitzer, 2009). For instance, people may use the Bill of Rights to protect some rights such as right to bear arms. Such rights may not be conducive with future generations. Ultimately, Australia has for long operated without the Bill of Rights and enacting one would be alien to the common and well known parliamentary sovereignty (Stone, Goldsworthy & Campbell, 2013). In conclusion, Australia, though matching with other Western countries in term of democratic process has undermined the role of Bill of Rights in the Constitution. However, its independent judiciary has continually built and enforced true human rights leading to general public acceptance of the condition as it is now. Though the Bill of Rights may expressly imply equality, common good to all citizens and sharing in the community, Australia has managed to come up with legislations that focus on areas which matters most. There are also stark challenges that may arise with enactment of a Bill of Rights making their administration complicated and over-empowerment which may lead to expensive pursuit of various interests and proliferation in courts. A bill of rights may only exist as an agreement and without the political goodwill; the rights of Australian may remain undermined. References Davies, G. (2014) Bill of rights a ‘foreign concept’? Independent Australia. Accessed 4 September 2015 from independentaustralia.net/life/life-display/bill-of-rights-a-foreign-concept,6423. Chappell, L., Chesterman, J., & Hill, L. (2009). The Politics of human rights in Australia. Cambridge University Press. Weitzer, R. (2009). Legalizing Prostitution Morality Politics in Western Australia. British Journal of Criminology, 49(1), 88-105. Nettelbeck, A., & Smandych, R. (2010). Policing indigenous peoples on two colonial Frontiers: Australia's mounted police and Canada's North-West Mounted Police. Australian & New Zealand Journal of Criminology, 43(2), 356-375. French, R. (2009). Protecting Human Rights Without a Bill of Rights. J. Marshall L. Rev., 43, 769. Stone, A., Goldsworthy, J., & Campbell, T. D. (Eds.). (2013). Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia. Ashgate Publishing, Ltd.. Sawer, M., Abjorensen, N., & Larkin, P. (2009). Australia: The state of democracy. Federation Press. Carver, R. (2010). A new answer to an old question: national human rights institutions and the domestication of international law. Human Rights Law Review, 10(1), 1-32. Taylor, L. (2013). Getting Over It? The Future of Same Sex Marriage in Australia. AUSTL. J. FAM. L., 27, 26. Fitzgerald, E. (2009). Bill of Rights in Australia: History, Politics and Law.Melbourne Journal of Politics, 34, 135. Goidel, K.,& Freeman, C. M. (2015). Misreading the Bill of Rights: Top Ten Myths Concerning Your Rights and Liberties. ABC-CLIO. Izzard, J. (2009). A Bill of Wrongs. Quadrant, 53(5), 24. IPA FACTSHEET. (2012). The Human Rights and Anti-Discrimination Bill 2012. General Assembly resolution 48/134. (20 December 1993). Chapter Seven: Creating national institutions to implement and monitor the Convention. Read More