Discuss about the Regional Protection of Human Rights.
I have come across the definition and core principles of Human Rights in this chapter. We all know that the problem regarding the human right is a universal matter and through this chapter, I came to know when the right can be recognises universally[1]. The main point I have made out is that human dignity is base of the human rights. To establish the facts of the human dignity, certain things are necessary such as justice, equality, freedom and respect. In my view, equality is the main point to engrave the idea of human rights in the society management. Many scholars that if there is no equality, presence of human rights are impossible have mentioned it. It helps to provide fair chances to all in the society[2].
In my opinion, it is very important to understand the purpose of international human rights and the role of the same on the national legal system. There are certain institutions that engaged to promotes the concept of human rights such as United Nation, regional non-governmental organisations. United Nations had taken several steps for the protection of human rights and from my view, the related covenants are more important to enact necessary rules in this behalf. It is a recognised fact that any kind of torture will harm the human dignity and the concept of human rights are affected by that[3]. It is the right of every person to express their view promptly and without any restriction. It has been mentioned by Nelson Mandela that respect and freedom of others will enhance the scope of human rights. I support the concept of Nelson Mandela when he said that if the rights of a human being are denied, that affects the humanity of the society. Certain new things have attracted by vision such as the generation and categories of the human rights. Successful attempt has been made against genocide, discrimination, torture and rights of the child abuse. It is our duty to establish the rights in the society. However, in the words of the Martin Luther King, a right delayed is right denied[4].
The chapter of information, freedom of expression and Censorship are the main discussed topic for this week. I have been observed that in Australia, the citizens have certain opportunities to look into the government documents management with certain limitations. The rules regarding the same have been engraved under the provisions of Freedom of Information Act 1982 (Cth.). Documents accessible under the FOI Act include paper records, plans and drawings, photographs, tape recordings, films, videotapes or information stored in a computerised form. After reviewing the facts of the principles, the objective of the Act in my view is to promote Australia’s representative democracy by contributing to increasing public participation in Government processes and thereby promoting better-informed decision-making, increasing scrutiny, discussion, comment and review of government activities.
However, the system has been criticised a lot and it has been mentioned that the accountability of the government is not ensured by the Act and the amendment of the personal information is misleading in nature. Releasing information from the government means weighing the public’s right to know against the need for national security and individual privacy. It is important to make available timely and accurate information to public. Communications should be open, honest, accurate, and based on sound science. Information not to be withheld to protect Government from criticism or embarrassment. Information will be released according to FOI Act. It must balance between the social needs of the community and the liberty of the individual.
In this week, I have learned the protocols of the war on terror. The advantage and the disadvantages of the same have been discussed regarding the trial of the terrorism related cases in the civil court. The advantage is there are certain increment regarding the human rights and the rights to get justice can be established[5]. On the other hand, the disadvantage is that the human security can be hampered if the terrorists bring before the civil court. In my opinion, the disadvantage of the same is stronger and it should be tried in military court or other special courts.
The case on Burqa banning is related to the emotion of religion and segregates the woman in public. It snatches their rights to communicate with the people freely. Therefore, from my point, to secure the right to equality, burqa should be banned. However, there are two types of concept present regarding the topic. As per the radicals, use of Burqa has been mentioned in Quran and therefore, it should not be banned. Australia has to face many problems regarding the terrorism and become a threat for the humankind. However, I have observed that media is playing an important role by publicizing the acts of the terrorists. The government has to adopt strict rule to combat these terror attacks and cancellation of citizenship can be proved as a solution. The main reason is that their acts are opposed to the principle of civic society and they should be marked as the destroyer of humankind. If their citizenship can be cancelled, it can be presumed that to certain extent, they will limit their acts and may be prevented from spreading terrorism management.
After go through the chapter, I have learnt that this week discussed about the form of terrorism. There is a growing mentality observed among the young Australians about the terrorism and they are leaning over the terrorist groups. The most common form of terrorism is transnational terrorism. In my view, government has to play an important role to curb the curse of terrorism and therefore, certain effective measures should have to take by them. It has been observed that the terrorists are spreading their messages through media and internet. Therefore, censorship should be imposed on certain channel or sites. If the media does not follow the necessary rules, they should be banned. In my opinion, the journalists need not get information from the agencies because as per the Freedom of Expression Act, anyone can get informed about certain limited edition of the government documents[6].
Another problem faced by the teenager is the effect of pornography that prove epidemic among them. The system of metadata helps to identify the other data that can later be discovered. It is of three kinds- descriptive, structural and administrative. The activities of a person can be traced by way of telecommunications or web satellite. These are the parts of the metadata.
Among many topics, one of it is the provision on statutory cause of action. It includes the interference in the life of the others and the individuals have to reveal certain things that he wants not to be disclosed. Cyber crime is also become a part of the terrorism. It has been observed that the terrorists are engaging them to obtain information from internet. Therefore, it is required to secure the system so that it could not possible to hack the same. Firewalls should be installed in the system.
I have learned about the aboriginal genocide in this week and it has been observed that in nineteenth century, the government assimilates many aboriginals and they have been removed forcibly from their family. The policy of the government made the generation almost extinct. Therefore, that can be treated as genocide to certain extent[7]. The main reason behind the same was to train the aboriginals so that they can habituate in the modern Australian society. However, in my opinion, for the betterment of any community, their motherland or mother language plays an important role. Therefore, from my point of view, practice of removal of the child from his or her native land was not for the best interest of the children[8]. The indigenous Australians are renowned as the stolen generation, they have to face trauma regarding the acts of the government, and it has been observed that they have to face serious injustice and most of them have been victimised by the governments.
It has been observed by me that there is a spree among the young aboriginals to commit crime. The main reason is the social attitude towards them that forced the young member get involved in the crimes and it has been observed that the criminal justice system of Australia is also not supported the social price of the individuals. In many cases, it has been observed by me that the police detained them in jail without providing an opportunity to be tried before court. This is the main reason that the aboriginals overlap the prisons[9]. I also support the equality system and in my opinion, the aboriginals need to be treated well as they are from the minority community. Indigenous are facing serious misbehaviour from the states. It is required to prevent them from being violated. In my opinion, any kind of discrimination is bad and the main essence of positive discrimination is to treat the backward classes so that they may able to adapt the trendy culture. I think everyone has the right to maintain his or her own culture and it is not necessary to follow the trendy culture. Lyn Austin had expressed her view regarding compensation to the aboriginals for the crime committed against them.
The Mabo case has opened a historical phase regarding the land law of Australia. The doctrine of no man’s land for the aboriginals has been abolished by this. It protects the interest of the aboriginals and therefore the relationship with the non-aboriginals is to be changed a bit but I do not think that the status has been developed through this case. The unequal treatment of the aboriginals is still a problem for the society of Australia and I think government should give the rights on land and water to the aboriginals as they are enjoying the rights as per their law since long time. If the rights are being taken from them, government has to compensate the aboriginals for the same[10]. This case is important, as it is the first case that promised to pay compensation to the aboriginals regarding their land, if acquired by the government. Compensations are given for the extinguishment of the rights and title of natives. However, it has been observed that there are many Acts enacted for the betterment of the indigenous people so they can develop their status. One of such Act is the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth). There are certain differences can be observed in between the above named Act and the other enactments. The main difference is that the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) has been in force only for two years and the other Acts will be prevailed until any amendment made regarding the application of the same[11]. It has been observed that certain referendum have been taken by the people for securing various rights to the aboriginals. Those rights include the right to vote, right to be treated equally etc. As per David Hume, people power is the most important referendum and the rights can be given to the aboriginals if most of the votes are casted for the change.
I have observed that marriage and divorce are the social wings and there is a difference in between the divorce and matrimonial causes. Due to this reason, they are written separately in the Act. Under the matrimonial causes, the provision regarding the malicious jactitation, nullity of marriage and the restitution of conjugal rights have been mentioned. On the other hand, divorce can be of mutual settlement and the ground of the same could not based on the cruelty or adultery[12]. In every community, there are separate laws applicable and aboriginals are the ancient community of Australia and therefore, they are following own customary law but that is not recognised under any law. In my opinion, the marriage should have to be recognised so that they can get the social establishment too.
The inner society of Australia is suffered from many problems and domestic violence are one of them. Gender problem is the main reason regarding the domestic violence in the provinces of Australia. In Australia, the Family Law Act 1975 applied on the person who tries to coerce or controls the other member of the family and acts violently[13]. I have seen that the de-facto relationship is excluding the common law parlance and if any or both the partners are engaged in monogamous life, then it is up to the other partners whether they wanted to continue the relationship or not. I support that if a person has to marry or give consent for marriage under duress, he or she has the right to annul the marriage.
Two types of justice system have been observed in this week such as retributive and restorative. In retributive justice, it is presumed that the whole state is the victim. In this system, punishment is necessary and it has been shown that the offender owes certain duties to the society, whereas, in restorative justice, victim denotes an individual or the community. This justice system defines the nature of the crime and impact of the same on the community. Punishment is not the only primary solution in this case. Good behaviour to the offender may, in certain times change their offensive mentalities. Victims are central pivotal in this system.
The main disadvantages of both the system are victims are not the main thing; they play certain peripheral role in retributive justice system. This system looks at the past incidents of the perpetrator. The only preventive method adopted in this process is punishment or inflicted pain on the offenders. In restorative justice negotiation is considered as a recognised process and therefore it allows the offender to compensate the victim. In serious events, this principle is not appropriate[14].
The Australian judicial system was affected from the wrongful conviction and DNA based exoneration can be a solution regarding the same as pointed out by Weathered Lynne. Problems can be resolved by DNA identification[15].
The case of John Batton is based on the justification of ex gartia that is given by state for wrong conviction. However, in my opinion, money should not be used as a medicine regarding the trauma and therefore these payments are unable to consider as sufficient to give justice to the innocent person as against wrongful conviction[16]. Same incident occurred with Darryl Beamish and in my view; these should have to be stopped as to secure the interest of the innocent person. It is truly wrong if this payment is taken by the state as excuse. Otherwise, justice will be denied if the process will go on.
Australia is an epicentre for the refugee rehabilitation and enacted several laws to promote the human rights. One of such Act is Human Rights (Parliamentary Scrutiny) Act 2011 (Cth.). The purpose of the Act is to promote the human rights through international covenants and meetings. I think the human rights can be established through equality. The principle of rule of law is appropriate for that. A society where the government is depending on the rule of law is being known as nomocracy. The base of the matter is promoted the idea of civil society[17].
Ill-treatment in Nauru has become a serious threat regarding the human rights. It has been observed that the refugees of the island had to face severe abuse and suicidal mentality has been grown up among them. I support the view of the Director of Amnesty International that the refugees who have arrived in Australia by boat, have to face grievous torture and they have been detained in jail for no reason. Therefore, I opposed the policy of the government regarding the refugees in Nauru as it has breached the right to safety and freedom[18].
Toonen v Australia is based on sexual orientation and the plaintiff of the case is a residual of Tasmania. It has been alleged by him that the sodomy laws of Australia regarding consensual sex is against the right to privacy and therefore, section 122 and 123 is differentiating gay men from the side of law. It has also been observed that the plaintiff was fired from his job due to the complaint and the government had enacted certain rules to criminalise the gay sex. The Human Rights Committee has asserted their views by stating that government should not differentiated the gay men and they should be treated equally[19].
As a part of the legal system, I think that the professional ethics should have to maintain by all the legal professionals. It has been proved in many cases that the students and the professionals should keep in mind that they are the part of the noble profession and they have to act for the interest of justice. Misconduct includes plagiarism, collusion and misrepresentation[20].
It is well known to me that the practical situation that has been faced by the lawyers and the law students. The main reason in my view is the heavy workload and competitive nature of the legal outsources. Lack of connection and strong backgrounds are also included under these problems.
The law schools should have to design programs regarding the promotion of the mental health and proper counselling is needed to deal with the problem. Proper training should be given to the junior lawyers and mental counselling is important to proactive the lawyers. The lawyers should not adopt any fraudulent way and should not delay the legal process. They should follow the rule of law for securing the interest of justice.
The ethical obligation is quite specific in my opinion and it has been stated that every lawyer should have to follow the rules for the interest of justice. I has lo been mentioned that if any lawyer has failed to perform the duties, he or she has to face civil proceeding regarding the same. The observation of John Britton has been concentrated on the professional rules and ethical obligations and it has been rightly observed by him that modern regulatory system is no longer remains proactive. As a law student, I will apply my presence of mind and will not attempt to steal or copy anything. I have to follow the professional ethics and should act within the purview of law.
Reference
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Booth, Sue, and Jillian Whelan. “Hungry for change: the food banking industry in Australia.” British Food Journal 116.9 (2014): 1392-1404.
Bouma, Gary D. “Religion and Other Ideologies in Political Life.” Religion after Secularization in Australia (2015): 211.
Burke, Paul. “Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? edited by Sean Brennan, Megan Davis, Brendan Edgeworth and Leon Terrill.” Anthropological Forum. Vol. 27. No. 2. Routledge, 2017.
Cherney, Adrian, and Kristina Murphy. “Being a ‘suspect community’in a post 9/11 world–The impact of the war on terror on Muslim communities in Australia.” Australian & New Zealand Journal of Criminology 49.4 (2016): 480-496.
Donnelly, Jack. Universal human rights in theory and practice. Cornell University Press, 2013.
Drew, Sharon, and Gareth Jones. “Costly ethical issues in legal practice.” Precedent (Sydney, NSW) 123 (2014): 44.
Forsythe, David P. Human rights in international relations. Cambridge University Press, 2017.
Gerstmann, Evan. Same-sex Marriage and the Constitution. Cambridge University Press, 2017.
Heupel, Monika, Gisela Hirschmann, and Michael Zürn. “International organizations and the protection of human rights.” POLITISCHE VIERTELJAHRESSCHRIFT (2014): 423-+.
Humphrey, Carla, and Mary Chiarella. “Legal frameworks for practice in Australia and New Zealand.” Midwifery-E-Book: Preparation for Practice (2015): 304.
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Muzio, Daniel, et al. “Bad barrels and bad cellars: a ‘boundaries’ perspective on professional misconduct.” (2016): 141-175.
Pearson, Mark, and Joseph M. Fernandez. “Censorship in Australia: Intrusions into media freedom flying beneath the international free expression radar.” Pacific Journalism Review21.1 (2015): 40.
Polya, Gideon. “Ongoing Aboriginal Genocide And Aboriginal Ethnocide By Politically Correct Racist Apartheid Australia.” (2014).
Reavley, Nicola J., and Anthony F. Jorm. “Experiences of discrimination and positive treatment in people with mental health problems: Findings from an Australian national survey.” Australian & New Zealand Journal of Psychiatry 49.10 (2015): 906-913.
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