There is a widespread perception that Australia has a candid bill of rights. In the words of Dixon (2016), Australia is the only country possessing primary democratic constitution on the globe with justiciable human rights. The framers of the law found that the state saw no need for the charter of human rights because there was a robust British Commonwealth tradition of the protection of human rights and they feared that racial factory and mining laws could fragment the support of the constitution (Commonwealth of Australia, 2009). The debate surrounding the issue has some critics argue that the bill of rights in the country is narrow and in democracy and comparative terms.
Human rights are fundamental to all. Zifcak and King (2013) reiterate the Universal Declaration of Human Rights that all people are born with dignity, have freedom, and rights endowing them with reason and conscience to act towards one another with the spirit of goodwill. The trajectory of human rights traces back to the prehistoric period where human beings realised that they ought to consider one another with dignity (Ife, 2012). Throughout the historical era, many organs and activism principles have laid the foundation for the future of human rights protection. However, the 21st century presents the most comprehensive period when stronger organs arose to safeguard the rights of all such as the United Nations (UN) (Baylis, Smith & Owens, 2017). Formed after the WWII, the UN followed the collapse of the League of Nations, and it owed the members the mandate to ensure continued tranquility. Therefore, the United Nations Human Rights Charter was introduced as a measure to guarantee that the freedom and rights of all people would prevail at all times. Australia has made significant steps in the implementation of human rights but the 2006 Charter of Humans Rights and Responsibilities Act famously known as The Victorian Charter of Rights was the landmark political and constitutional history in the country (Dixon, 2016). The Victorian letter of rights based its premises on the 1998 the United Kingdom Human Rights Act and the 1990 New Zealand Bill of Rights Act. The enactment of the law lay in the idea that Australia had a good history of human rights protection making her require enhancement through improved protection for these rights.
Notably, Australia is the only democratic country in the world without a bill of rights. According to Dizon (2016), a comprehensive framework for the protection of human rights is the critical check of democratic governance in the contemporary political world. Therefore, Australia requires enacting laws and reforms in their country to align with other nations in the area of safeguarding the rights and freedom of their citizens. The propounded legal framework will ensure that the nation stands firm on the law to guarantee every citizen their rights without favouritism or double standards because of proper legislative frameworks to address the situation. For instance, the forced removal of the children of aborigines from their families and their detention raised the question of the preparedness of the country to resolve human rights crisis in the nation (Harris, 2017). Australia remains behind in enacting a human rights bill and it applies some traditionally founded mechanisms to deal with issues surrounding infringement of people’s rights that have negative and positive implications requiring the enactment of human rights charter in the country.
Australia has no bill of rights to lay the foundation for resolving human right disputes. In the words of Dixon (2016), Australia lacks a constitutional law of rights or a charter for individual’s freedom. The Australian attorney-general George Brandis in 2014 agreed that unlike the United States, the country does not have a platform enshrined in the constitution where they can articulate the rights and freedom of their citizens (Dixon, 2016). However, the absence of a bill of rights does not imply that the country does not have a foundation for the observance of people freedom. Indeed, there are a set of entrenched constitutional rights commonly known as the partial bill of rights (Commonwealth of Australia, 2009). For instance, the Section 80, 116, 117, and 51 (xxxi) of the constitution provides for the application of Commonwealth human rights provisions on determining issues related to the infringement of the same. These four sections of the law place the parliament at a focal point regarding the observance of the human rights in the country as the house has the power to enact legislation in line with the Commonwealth standards. Furthermore, the nation places significance on the international bodies such as the UN acts on human rights while determining contentious issues of individual rights. The country obliges to consider the rights of its people as per the provision of the global agencies. For instance, the high court in the nation in the case of the ministry of immigration and ethnic affairs granted Australia obligation under the treaty of the UN on the children rights (Human Rights Law Centre, 2017). The situation in the country regarding human rights places her at the forefront of the observance of human rights.
The argument in favour of a bill of rights in Australia continues to gather momentum as days pass. The contemplation for a bill of rights in the country should increase the pace to guarantee individuals their rights in a constitutional framework. Notably, Dixon (2016) says that a bill of rights ensures that the perpetrators of injustice will face the law regardless of their ranks in the society. Therefore, several legislations from within and outside the country can salvage the situation and make Australia a hub for the observance of human rights and dignity. For example, the South African bill of rights would be imperative in protecting Australians and guaranteeing them their freedom (Currie & De Waal, 2013). There have been several instances in the country where the state has infringed the rights of individuals. The case of Bakhtiyari vs. Australia saw the children of the first respondent suffer mental trauma while under incarceration (Douglas & Walsh, 2013). The present partial charter was ineffective leading the UN to conclude that there was a violation of human rights in the case (spencer & Allison, 2013). Therefore, the South African bill of rights would have protected the children from violation of their rights and other matters such as the detention of Shayan Badraie. The advantage with the South African legislation is that it guarantees the constitutional protection of human rights making it an obligation of the state. However, the bill could engender anarchy where crime offenders would be ready to commit a crime as the constitution safeguards them from punishment even after being found guilty of committing a crime.
The Victorian charter of rights is another document from Australia that can help improve the human rights situation in the country. The charter would be imperative if made into a human rights bill in the country as it recognises the dignity and freedom of all people (Dixon, 2016). Like the Victorian act, the United Kingdom Human Rights Act is also a possible framework for the implementation of a bill of rights in the country. Notably, the UK Bill Of Rights or the Victorian charter or rights would be a success in the country because they do not create instances of litigation difficulties (Spencer &Allison, 2013). For example, the application of the UK human rights activists in the courts has enabled the UK in balancing the need to fight terror with the principles imperative for a free society (Marken, 2013). Notably, the government in Australia introduced 40 laws some that are brutal in the efforts to counter terrorism. Therefore, the UK law would ensure that the country fights terrorism without infringing on the obligations of human rights. Unfortunately, the UK law could occasion increased instances of terror in the country because it would undermine the state war against extremism owing to litigation processes and provisions.
Another essential law concerning human rights imperative for Australia is the United Nations Declaration of Indigenous People (UNDIP). According to Phillips (2015), the aborigines suffer discrimination to the extent of declaring their land terra nullius. Indeed, several efforts have been made to avert the situation, but the natives are yet to live their dreams. The fragmented laws operating in the country have failed in guaranteeing the natives their freedom to own property in their ancestral land (Morgan, 2016). However, under the (UNDIP) the aborigines would have the right to their land without application of force to confiscate their land unless they willingly and reasonably give their property at a compensation. The inclusion and enactment of this critical bill of the right would help mend the historical injustices in Australia surrounding land possession. However, the legislation would subject the country into more problems because the process of repatriation of land grabbers would prove costly to the economy and national cohesion.
Conclusion and Recommendations
The idea that Australia current legal system is the strong defendant of human rights and freedom has been proven wrong through gross violation of human rights. Therefore, there is a need for a charter of rights to improve the welfare of the Australians and salvage them from rules that are inconsistent in their execution. The implementation of acts such as the South African Bill of Rights, United Kingdom Human Rights Act, United Nations Declaration of Indigenous People, and The Victorian Charter of Rights would ensure that the country cherishes a flamboyant and fare legal system where people will face the law according to the crimes they have committed. Indeed, the current system of human rights protection in the country possesses several backlashes requiring a constitutional framework to guarantee individuals freedom. The process to enact a bill of ought to be deliberative because there may be people with interest who may affect the adoption process to ensure that Australians do not realise justice. Therefore, the improvement of the current system would be significant in helping accomplish the attainment of a bill of rights coupled with the adoption of other legislation around the world and inside the country.
References:
Baylis, J., Smith, S., & Owens, P. (Eds.). (2017). The globalization of world politics: an introduction to international relations. Oxford University Press.
Commonwealth of Australia (2009). National Human Rights Consultation. The National Human Rights Consultation.
Currie, I., & De Waal, J. (2013). The bill of rights handbook. Juta and Company Ltd.
Dixon, R. (2016). An Australian (partial) bill of rights. International Journal of Constitutional Law, 14(1), 80-98.
Douglas, H., & Walsh, T. (2013). Continuing the stolen generations: Child protection interventions and indigenous people. The International Journal of Children’s Rights, 21(1), 59-87.
Harris, M. (2017). Waters v Commonwealth: The Lingering Traces of Historical Legislation That Is Ill-Advised or Mistaken, Particularly by Contemporary Standards. law&history, 4, 1.
Human rights Law Centre. (2017). On the Right Side of History. Melbourne City: Human rights Law Centre.
Ife, J. (2012). Human rights and social work: Towards rights-based practice. Cambridge University Press.
Morgan, R. (2016). Transforming law and institution: Indigenous peoples, the United Nations and human rights. Routledge.
Phillips, J. S. (2015). The rights of indigenous peoples under international law. Global Bioethics, 26(2), 120-127.
Spencer, Z. and Allison, k. (2018). Human Rights For and Against. [epdf] Victoria: The Australian Collaboration. Available at: https://www.australiancollaboration.com.au/pdf/Essays/Human-Rights-For-Against.pdf [Accessed 6 Aug. 2018].
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