Human Rights in Australia - Essay Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Course : xxxxxxxxxxx Title : Introduction to Australian law Tutor : xxxxxxxxxxx @2010 Introduction to Australian law Human rights can be defined as the basic rights as well as the freedoms to which each and every person is entitled to. Those supporting this concept normally assert that every individual is endowed with some entitlements simply by rationale of being a human. Therefore, human rights are envisaged in a universalist and democratic. Nevertheless, there is no accord as to exact nature of what in particular should or should not be considered as a human right in any preceding senses. Therefore, it would be fair to conclude that each and every person is born free and same in dignity and rights, human being are endowed with reason and conscience and ought to behave towards each other in the spirit of brotherhood irrespective of the position (Chee 2003). Basically, the frame work of a government is the constitution. The constitution defines the institutions of the state, the power that has been granted to such institutions, and the regulations that should be observed by the individuals whom power has been granted in them. However the constitutionalism refers to more than this. Constitutionalism acknowledges that sovereignty is within individuals of the given state and that power should be exercised in their interests and finally issue to their control. There are various ways of accomplishing this but the real meaning of constitutionalism can be described as a government that acts in regard to a constitution (Donnelly 2003). This means that a government that considers the sovereignty of human beings and one that derives its power as well as the authority from the spirit of the people. The government should be responsible and accountable to all human beings by using universal suffrage. The authority of the government should be exercised just when according to the law established pursuant to constitutional procedures and steady with constitutional recommendation and restrictions. Usually, the government is for the people but it is typically restricted by a bill of individual rights. Constitutionalism is normally recommended since it means that the constitution cannot be suspended, dodged or discounted by political arms of the government since it is always very common for the government to do this especially when there are political gains in doing that. As a result, the constitution can only be amended singly by processes suitable to change of constitutional nature that offer effect to the wish of the people acting in a constitutional form (David 2000). An essential result of this is that public authority can lawfully exercised just when in harmony with the constitution.  There should be no extra-constitutional government, no implementation of public authority by any human being or institution not selected pursuant to the constitution.  The government should not at any time tie rights and responsibilities together. To tie human rights together with the responsibilities would disadvantage the people who most require the rights of protection (Finnis 1995). Those in government can make use of the Bills to incorporate some bills in the constitution that favor them and thus may end up disadvantaging and people as well as going against the people’s rights. For instance a Bill that empowered the High Court and other federal courts to make declarations of incongruity or irregularity between a law and the protected rights has a likelihood of being unconstitutional. A Bill that incorporated solid and enforceable “due process” rights would not end up creating the same difficulties. On the contrary, an amendment to the Commonwealth Acts Interpretation Act 1901, necessitating the Courts to construe legislation in the light of particular rights would steer clear of a lot of the negative effects of a Bill (Christian 2007). The government incorporating Bills that are likely to deter the Human rights would result into the misrepresentation that are within the constitutional disjointing of powers, as courts are obligated to rule on issues that are in actual fact political, and not judicial, the possibility of the designated rights turning into being rigid as well as inflexible and as result making it more hard for the new rights to be established and acknowledged in future (Bösl 2000). Furthermore, it would also lead to a change of the value claims into legal claims and hence there would be foreclosing of the legal debate concerning contestable and controversial issues and also it would result into the high expenses linked to ligation, more so for the people who are both disadvantaged and oppressed (Forsythe 2009). Certain body of rights should however be safeguarded from legislative erosion, and that is appropriately enforced by the courts. These are rights that are involved within the legal procedure and enforcement of law: rights that come by when someone gets arrested, in addition to the trial of people. Such rights should only belong to the courts and the judicial arm of the government. Most of these rights are at present protected by common law and thus their safeguarding through the Bill would not, according to me, be disadvantageous. The problems stated above are likely to come by irrespective of if the Bill of Rights is statutory or even constitutional (Chauhan 2004). There is an additional difficulty with the government being at liberty to implement the Bills. If for instance the statutory Bill should take the form which has been advocated by the government which is just on need of exercising power, this model which does not allow judicial invalidation of the laws will merely empower the courts to implement declarations of incompatibility or contradiction between the laws and the Human Rights. The Commonwealth Constitution does not allow the High Court to offer advice or provide their views to the government. A declaration of incompatibility, according to me has a nature of an advisory view. A federal Act of this character, would itself not be constitutional (Barzilai 2003). The government should come up with an Act that necessitates the courts to construe laws constantly with Human Rights set out within the Act. It should prohibit the courts from make a ruling that certain laws are null or unenforceable in case of inconsistency with these rights. According to me, constitutional hardships come by from such a model. An act that forbids the High Court from ruling on the validity or enforceability of any laws has the probability of undermining the High Court’s constitutional authority and thus such an Act would be entirely unconstitutional (Blattberg 2007). The reluctance when it comes to adoption of a Bill of Rights should not be interpreted as disregard or contempt for rights. On the other hand, it implies protection of human rights in other manner, to be exact by using the democratic institutions and culture. The people who always the Bill of Rights motive are hardly ever disapproving the rights or the law, or the reliability of the judiciary or the judicial structure. It means that on the contrary they are concerned regarding the best ways of protecting the rights while maintaining the democracy within Australia. The key subject is if the best means rotates around judicial evaluation.  Judicial evaluation is not itself disagreeable (Ellerman 2005). Constitutionalism implies restrictions on legislative power. Elections as well as electoral responsibility are key to a democracy, but elections are not enough not exhaustive of the procedures a democracy needs. The complicated political-legal structure that signifies any contemporary democracy needs involvement of numerous institutions and procedures in which officers, both elected and unelected make critical decisions that do not have to necessarily possess the popular support in case a poll is taken (Blattberg 2007). A system like Australia’s contains three arms of government. Every arm has its component in balancing diverse and conflicting interest, in sustaining and safeguarding the fundamental institutions, id the development of standards and values and also in the protection of the other arms of government from amassing or monopolization of power. This is the reason it is fundamental to separate the powers. Judges don’t wantonly strike down laws in during judicial review. Legislation is hardly ever ruled as not being constitutional. The relationship between the government and the people being governed is fiduciary. Within equity law, the fiduciary responsibilities of politicians include the duties of both good faith and loyalty and also duties of skill and competence in the management of a state and its citizens. The Courts of equity should prevent the people in powerful positions from abusing the power. The fiduciary association between government and the people it is governing comes by when the government has the capacity of controlling people when exercising its power. In this regard, when the government has the power to abolish any rights, it then should have the responsibility of protecting such an interest since it would be beneficial from exercising of its judgment to extinguish rights which it singly has the power of disposing. Each excellent society should be able to offer the best degrees of health and education and housing, the best prospects for civilized and productive employment, a clean and healthy environment, and many more. But according to which criterion are we to make a decision if these claims have been fulfilled? How should we to know if the resources available have been optimally or rightfully allocated? In fact, the initial problem with the Bills of Rights is their inclination of creating false expectations. These are not inquiries that courts are supposed to answer, and issues for which legal remedies should apply. Such issues are supposed to be the subject of political campaigns. Those who think the government is not delivering ought to be encouraged to crusade for a change within government. There is more to defending rights, nevertheless, than authorized action, whether by government or the courts. People are apprehensive – quite logically at times – of the probability of erosion except if rights are protected from alteration. This very objective, on the other hand, may have obstinate effects, taking the effort for rights out of the political territory, making it uni-dimensional and uni-directional, pushing the disadvantaged to think principally in terms of legal ways for right. These options normally are expensive and uncertain (Forsythe 2005). The judicial and legal procedures rights are solid rights for any person. They cannot be equalized with perceptions like “fair trial or “due procedure”.  Such perceptions are often indefinite and nonfigurative, and can be prejudiced. Their interpretation is liable to differ from case to case, developing indeterminacy or ambiguity in the law generally. Indefinite and abstract perceptions or “rights” have the probability of undermining the rule of equality before the law. On the contrary, precise, solid and clearly-measurable rights would shun these dangers.   Bibliography Chee, S., 2003, Human Rights. Byron Bay, Austria. Bösl, A., 2000, Human Rights in Australia. Legal Perspectives on their protection and promotion, Macmillan, Sydney. Barzilai, G., 2003, Communities and Law: Politics and Cultures of Legal Identities, University of Michigan Press, Ann Arbor. Blattberg, C., 2007, The Ironic Tragedy of Human Rights in Patriotic Elaborations, McGill-Queen's University Press, Montreal. Chauhan, P., 2004, Human Rights: Promotion and Protection. Anmol Publications PVT. LTD, Austria. Christian, D., 2007, State Repression and the Domestic Democratic Peace, Cambridge University Press, New York. Donnelly, J., 2003, Universal Human Rights in Theory & Practice, Cornell University Press, Ithaca. Ellerman, D., 2005, Helping People Help Themselves, University of Michigan Press, Sydney. Finnis, J., 1995, Natural Law and Natural Rights, Clarendon Press, Oxford. David P., 2000, Human Rights in International Relations, International Progress Organization, Cambridge. Forsythe, P., 2005, The Humanitarians: The International Committee of the Red Cross, University Press, Cambridge. Forsythe, P., 2009, Encyclopedia of Human Rights, Oxford University Press, New York.     Read More