Does Australia Need a Bill of Rights? Essay Example
Does Australia Need a Bill of Rights? Essay Example

Does Australia Need a Bill of Rights? Essay Example

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  • Pages: 9 (2450 words)
  • Published: November 23, 2017
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Individual Rights and Freedoms, and the Constitution. For over 100 years now, Australia has operated under its rather prized constitution that is in hindsight evidently lacklustre in respect to individual rights and freedoms. The Australian constitution was thought to be sufficient in regards to rights and freedoms despite the lack of an entrenched bill of rights.However, when one dissects the constitution, it becomes increasingly evident that constitutional implications are not an effective way of protecting individual rights and freedoms, and the only way to achieve this is through a bill of rights. This is not to say that our constitution bears completely no recognition of rights , as there are some provisions that do in fact recognize certain rights and freedoms for individuals.

This includes s116, s80 and s41 .The Australian constitution amongst its express rights al

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so contains implied rights, and the adequacy of these implied rights is rather debatable, as it becomes increasingly apparent that the extraction of our individual rights and freedoms from constitutional implications is an inconsistent and primitive way of dealing with rights, as the essence is lost somewhere down the track, and we find our freedoms being questioned and removed at the hands of the judicial system.Express rights in the constitution Under s116 , “the commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion” . This section is very direct and assertive, and could easily lead one to believe that the commonwealth, under no circumstance, will prohibit the free exercise of any religion.

However, even this clear-cut statement in the constitution has not held up

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in court, as it is overridden in Krygger v Williams , where one man is forced to undergo military training, despite its contradiction to his religious beliefs, allowing conscription laws to overpower an express right in the constitution. Off course, it’s not as clear cut as this, as the courts may have their reasons for rejecting the argument; however it gives us insight into how the constitution itself can be ambiguous at times and rights can in fact be taken away.Furthermore, s80 of the constitution basically requires that an ‘indictable offence’ must proceed with a trial by jury. Again, we see a direct statement in the constitution that clearly illustrates a right that is given to us. However, if we look at the judicial system in Australia, relatively few cases receive a trial by jury, due to the fact that the definition of an “indictable offence” is left for the government to decide.

Nonetheless, another question is raised in respect to the limitations of a trial by jury.Our constitution leaves room for ambiguity, which in turn can lead to the loss of certain rights. Under New Zealand’s constitution, the bill of rights grants the right to a trial by jury to those whose penalty includes imprisonment of more than three months. This is a great example of why Australia needs a Bill of rights, as the New Zealand bill of rights is direct and clear, the loss of certain individual rights in these circumstances is rare.Similarly, according to R v Pearson; ex parte sipka the right to vote, under s41 is only given to those who were entitled to vote at state level before the

enactment of the Commonwealth Franchise act 1902, thus indicating that “s.

41 has no practical effect today. ” Implied Rights The express rights stated in the constitution do not stand alone, as the constitution also contains implied rights which have been identified by the high court as; ‘the rights implied from representative and responsible government, and the rights implied from the separation of judicial power. Implied Rights – Text and Structure The issue of implied rights can be rather contentious at times. Some may even argue that the courts ability to extract implications from the Constitution and turn them into rights is in fact contradictory to the constitution itself, because these rights are not expressly stated, and their interpretation by the courts proves conflicting at times.

The separation of powers held two main objectives according to ‘Wilson v Minister for Aboriginal and Torres Strait Islander Affairs . The first objective is, “that the judicial power of the commonwealth be exercised only by the courts identified in s71 of the constitution ” and secondly “that courts established by or under the constitution only exercise the judicial power referred to in chapter III of the constitution. ” These objectives embedded in the constitution try to protect individual rights by dividing the government’s power, in the hope that it cannot be abused. This can be said to ensure equality before the law for all citizens, as the judicial process remains independent of the parliament.

In “Leeth v Commonwealth” however, the high court stated that there was nothing in the constitution that stated “Commonwealth laws should have a uniform operation throughout the Commonwealth . ” This statement almost completely rejects

the notion of implied equality before the law, once again raising doubts in regards to constitutional implications, and giving rise to the need for a bill of rights. The rights implied from the representative and responsible government are somewhat debatable.One of these rights is the right to freedom of political communication, and was highlighted in Nationwide News Pty Ltd v Wills. ‘The freedom of political communication found within the Australian Constitution is not however the equivalent of the First Amendment to the United states constitution” This “limited kind of free speech ” is embedded in s7 and s24 of the constitution, and is said to be limited because of its technical limitations to political matters only, leaving a mountain of ambiguity for the courts to decide on.

However, in the case of Australian Capital Television v Commonwealth this implied right was taken away, when media restrictions were imposed on certain political matters during a federal election, asking the question, where are our constitutional rights, and why can they be taken away so easily? The fact of the matter is quite simple, yet complicated on many different levels.Constitutional implications are a difficult source to extract our individual rights and freedoms from, because interpretations will differ as time passes and as different judges commentate, our system is in dire need of a Bill of Rights, to ensure certainty and consistency in respect to individual rights and freedoms. Constitutional Interpretation Constitutional implications are rather complex and require stringent interpretation at common law.In this sense, different judges may interpret the constitutional implications in different ways, causing confusion and at times controversy in the judicial system. As discussed above, the issue

of constitutional interpretation is somewhat controversial, in the sense that it is giving the courts the power to decide what the constitution did or didn’t intend.

This, although somewhat in breach of separation of power, could possibly work in some cases, but the integrity of constitutional interpretation is questioned when it becomes inconsistent or debatable.The most controversial interpretation of the constitution would have to be in the case of “Theophanous v The Herald and Weekly Times” , where implied rights of limitations of free speech shone through on the case, causing immediate doubt into constitutional interpretation in Australia. It is blatantly obvious that constitutional interpretation is a controversial and sometimes inconsistent method of protecting rights and freedoms. Terrorism Laws Perhaps the most controversial attack on individual rights and freedoms would be the recent anti-terrorism laws introduced in Australia.

The measures introduced have sparked considerable debate as regards the balance to be struck between the protection of national security and the protection of individual liberties. ” These laws are primitive in nature, and restrict the right of individuals to a fair trial in many cases. ‘To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison'. However, these anti-terror laws are in fact in blatant breach of this concept.They allow suspects of terror to be detained without charge for extended periods of time, in direct breach of basic human rights.

This was the case with Dr Haneef, who was imprisoned for a period of 12 days, without any charges being laid on him. The lack of a bill of

rights in Australia has led to the development of rather primitive laws, that at times fully contradict notions of basic human rights, and our government is left free to do so, because there is no Bill of Rights to stop them. What effect will a Bill of Rights have on Australia? The question remains, will a Bill of Rights lead the way for protection of ur individual rights and freedoms? Simply put, ‘a Bill of Rights in itself does not guarantee respect for human rights. ” Australia cannot expect to draw up a Bill of Rights and simply sit back comfortably, knowing that we are now protected under the law.

But a Bill of Rights would ensure a clearer approach to the law in regards to our fundamental rights as humans in this society, and perhaps allow greater consistency in matters regarding individual rights and freedoms. Advantages of a Bill of Rights First of all, it would be fair to say that a Bill of Rights would guarantee our basic fundamental freedoms and rights.That is, our right to a fair trial, our freedom of speech, our voting rights, and our rights to freedom of religion. Although it can be argued that these rights already exist in our constitution, it has been apparent that the courts have been able to override them in certain cases.

One important advantage of a Bill of Rights would be the enhanced protection of the “vulnerable and weak, such as the poor with little or no economic power, or people living in rural areas with little political clout and dwindling access to basic services. These people are discriminated against by our

current system, as they are not receiving full access to the law in many respects, putting them in a position of disadvantage, contradicting the notion of equality and fairness that our judicial system apparently strives so hard to achieve. Australia is a strong promoter of human rights across the world, however if one looks at our own system, it is vague and ambiguous at best, which is somewhat hypocritical of our nation. So it would be fair to say that a Bill of Rights gives us the chance to improve our democracy by “promoting a stronger culture of respect for human rights. Disadvantages of a Bill of Rights Every argument has two sides to it, and the Bill of Rights argument is no exception. Although it has been proven that a Bill of Rights has its many advantages, it would be unfair to say that there is no downside to all of this.

One argument against the introduction of a Bill of Rights is that it would contradict the principle of parliamentary sovereignty “because it would transfer power from elected parliamentarians to unelected judges. ”This means that the introduction of a Bill of Rights could lead to a ‘politicizing of the courts,’ which would diminish from the main purpose of the courts – achieving justice. Another strong argument against a Bill of Rights would be the practical limitations associated with one. This argument suggests that a Bill of Rights will in fact “restrict rights by freezing them.

” This argument suggests that the introduction of a Bill of Rights will define each and every right that we are entitled to, creating no leeway for exceptions

and exigent circumstances.This argument supports the idea that the current judicial system is best suited for this, as each case is treated on its own merit. Conclusion In order to sum up the argument, one must simply look at the current effects that our constitution has had in recent cases. The Australian constitution, in absence of a Bill of Rights, is very dull in regards to our basic individual rights and freedoms. Basic rights such as the right to a fair trial are taken away from us as the government creates new laws that cannot be challenged by the court without great opposition.

A basic right to freedom of speech is not even given to us under the constitution, but rather it is implied somewhere in the fine print. We are a modern nation, recognized for our beliefs in human rights worldwide, yet we lack a fundamental document that is given to most nations around the world, a Bill of Rights. In order to move forward, Australia must slowly and cautiously implement a Bill of Rights in a manner that will allow the Australian society to reap the full benefits that this document was intended to give to us all.Education must be given to our judges, as there is a cautious view ‘that judges are out of tune with the lives of ordinary Australians’ .

This education can be achieved through educatory functions and seminars, where judges are enlightened on the day to day lives of our society. Whatever the case may be, it is absolutely crucial for our constitution to introduce a Bill of Rights in order for us to move forward and begin recognizing

the rights that should be given to all human beings, and also recognizing other rights, that will allow our nation to lead the world in recognition of rights for all.Word Count: 2245 Bibliography Articles, books and Reports: Charlesworth, H and McKinnon G. Australia’s first bill of rights: the Australian Capital Territory’s Human Rights Act, Sydney, Federation Press (2006). Coper, M.

Encounters with the Australian Constitution, Sydney, CCH Australia Limited (1988). Detmold, M. ‘The New Constitutional Law’ (1994) Sydney Law Review, 16 (2) Lacey, W. ‘Restoring the Rule of Law through a National Bill of Rights’ (2008) Precedent, 84. Malcolm, Hon Mr Justice David.

“Does Australia Need a Bill of Rights” (1998) Murdoch University Electronic Journal of Law 5(3) lt; http://www. austlii. edu. au/cgi-bin/sinodisp/au/journals/MurUEJL/1998/23. html? query=does%20australia%20need%20a%20bill%20of%20rights; at 1 September 2008.

McClelland, R. “How is a Bill of Rights relevant today? ” (2003) Australian Journal of Human Rights 9(1) ; http://www. austlii. edu. au/au/journals/AJHR/2003/2.

html; at 1 September 2008. Case Law Australian Capital Television Pty Ltd v Commonwealth (No2) (1992) 177 CLR 106. Al Kateb v Godwin(2004) 219 CLR 562. Commonwealth v Bank of NSW (1949) 79 CLR 497.

Dietrich v The Queen(1992) 177 CLR 292.Kruger v Commonwealth; Bray v Commonwealth of Australia (1997) 190 CLR 1 (‘Stolen Generation Case’). Leeth v Commonwealth (1992) 107 ALR 672. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

Krygger v Williams (1912) 15 CLR 366. Theophanous v The Herald and Weekly Times (1994) 182 CLR 104. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 Legislation Australian Security Intelligence Organization Legislative Amendment (Terrorism) Bill 2002 (Clth) Commonwealth Franchise Act 1902 Commonwealth of Australia Constitution

Act 1900 ss 7, 24, 41, 51 (xix), 72, 80, 92, 116.

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