Should Australia Have a Bill of Rights Essay

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Australia Have a Bill of Rights?

Australia is the last remaining Common Law country without a Bill or Rights or Human Rights Bill. It is important to note that the Australian variant of liberalism differs from the Anglo-American model in two important ways. First, the establishment of Australia as a series of British colonies under authoritarian governors and the absence of any political revolution has meant a lesser stress on the idea of individual rights vs. The state. There has been no one in Australian history to shout 'Give me liberty or give me death', no real pressure to incorporate a Bill of Rights into our Constitution (Rowse, 1978).

Second, these factors combined with the problems of economic development in Australia and the generally inhospitable nature of the land, a staple theme of Australian literature, has meant an absence of any real laissez-faire tradition. 'Socialism' may be abhorred in the vacuum, but there is a general consensus on the need for a strong interventionist state to guarantee basic economic welfare and promote development. Liberal governments accept, albeit reluctantly in some cases (e.g. Medibank), social welfare measures, and Labor governments enthusiastically seek economic growth (and even foreign investment in the case of the state governments). Thus the seeming contradictions of Henry Albinski's remark that Australians are more ambivalent than Americans to authority: 'there is more rubbishing of authority figures and on the other hand more reliance on government than here' (i.e. The U.S.A.).

The Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter of Rights') is a milestone in Australia's constitutional and political record. Despite the fact that it is not the nation's first bill of rights, that one is the Human Rights Act 2004 (ACT) ('ACT Human Rights Act'), (Campbell, 2006) it is the primary apparatus in an Australian state. Like the Australian Capital Territory law, it is a ground-breaking, if humble, change to the Australian system of government in the type of an unentrenched Act of Parliament that defends a range of civil and political rights.

The Victorian Charter of Rights symbolizes a decisive removal, at least in Victoria, from the long-held conception that the best defense for human rights is the first-class sense of our parliamentary legislature as forced by the doctrine of responsible government and the common law as useful by the judiciary. This view was promoted at the conventions brought up in the 1890s that created the Australian Constitution (Campbell, 2006) and in writings for example those of 19th century English legal theorist, AV Dicey (Patapan, 1997). The view has integrated supporters such as past Prime Minister Sir Robert Menzies, who considered the doctrine of accountable government as being the definitive guarantee of justice and personal rights' in Australia. (Campbell, 2006) He disputed that the doctrine preordained that Australia had no necessity of the 'formality and definition' of rights in a tool like a bill of rights. (Patapan, 1997) In current years this outlook has come under dispute as people have inquired whether the conventions concerning to responsible government, for example ministerial answerability, hang on to the same force.

The ratification of the ACT Human Rights Act and Victorian Charter of Rights also disputes the analysis that Australia has a tough record of protecting human rights which does not require enhancement through improved legal protection for such rights. In 1967, Sir Robert Menzies, just withdrawn as Prime Minister, commented that 'the human rights of individuals in Australia are as sufficiently cosseted as they are in any other country on the earth.' (Debeljak, 2007) In the same way, current Prime Minister John Howard held in 2000 that 'Australia's human rights standing in comparison with the rest of the world is fairly magnificent' (Conway, 1978).

While Australia unquestionably has an improved human rights testimony than a lot of other nations, the vision that our record could not be considerably enhanced is no longer as willingly accepted. Both the historic and modern weaknesses of the Australian evidence have been uncovered, counting the federal government's own Human Rights and Equal Opportunity Commission in regard to the compulsory elimination of Aboriginal children from their families (the 'stolen generations'), and the imprisonment of children looking for asylum and refuge and their significant growth of a range of mental health problems (Conway, 1978). Expansion after September 11, 2001 has also lead public to inquire how well human rights are sheltered in Australia, mainly since the acting out of new laws on sedition; the arrest of non-suspects by the Australian Security Intelligence Organization; control orders that facilitate house arrest; and anticipatory detention whereby an important person can be held without charge or trial.

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As Brian Burdekin, a previous Australian Human Rights Commissioner, said in 1994: 'It is away from question that our present legal system is gravely insufficient in shielding many of the rights of the most susceptible and underprivileged groups in our community.' (Debeljak, 2007)

The Victorian Charter of Rights is significant not only for the reason that it is an important change to the text of law. It is also vital for the reason that it needs a re-evaluation of these and other conventional views about Australian politics and regulation as they communicate the defense of human rights. The Victorian Charter of Rights demonstrates that it is probable to look again at a number of the most basic suppositions and beliefs that lie beneath our system of government, and consequently, to bring about legal transformation. This challenges the view that bills of rights are not politically attainable in Australia. While this illustrated strong support from the litany of letdowns to attain transformation around Australia, (Allan, 2008) it has now been removed away by the achievements in the ACT and Victoria, in addition to by new countrywide initiatives like that by New Matilda for a national bill of rights. (Campbell, 2006)

Why Is There No Australian Bill Of Rights?

Australia is at present the only democratic country in the world with no a national bill of rights (Debeljak, 2007). Some wide-ranging form of legal defense for basic rights is otherwise observed as an indispensable check and balance in democratic domination around the world. Without a doubt, I can find no illustration of a democratic nation that has increased a new Constitution or legal system in current decades that has not incorporated some form of a bill of rights, nor am I conscious of any such country that has done away with a bill of rights once it has been established.

Why then is Australia the exclusion? The response lies in our past. Even though many think of Australia as a young country, constitutionally speaking, it is one of the oldest on the planet. The Australian Constitution is still almost totally as it was when ratified in 1901, while the Constitutions of the Australian states can go back to the extent of the 1850s. The legal systems and Constitutions of the state and the Australian colonies (and then states) were envisioned at a time when human rights, with the well-known exception of the 1791 United States Bill of Rights, happened not to be protected through a solitary legal instrument. Without doubt, there was then no such commandment in the United Kingdom, upon whose legal organization ours is considerably based. This has altered, particularly after World War II and the opening of the Universal Declaration of Human Rights, (Allan, 2008) but by then Australia's system of administration had been in service for decades.

Not only is the Australian legal system old by world provisos, but it has opposed change. Ever since 1967 Australia was depicted by Geoffrey Sawer as '[c]onstitutionally speaking ... The frozen continent.' (Allan, 2008) This is yet more relevant today, with the last unbeaten vote to modify the Australian Constitution in 1977 when it was altered, in the middle of other things, to set a retreat age of 70 years for High Court judges. An additional eight unproductive proposals have been put to the people from that time. The period from the time of 1977 is now the longest without any transformations to the Australian Constitution (the next longest stage was from 1946 and 1967). The political party most repeatedly linked with constitutional improvement, the Australian Labor Party, has itself not thrived in having the people hold up a referendum from the time of 1946, with Labor governments putting 13 botched proposals in votes held in 1948, 1973, 1974, 1984 and 1988. By comparison, over 56 per cent of the member states of the United Nations made foremost changes to their Constitutions just among 1989 and 1999. Of the states constructing such alterations, over 70 per cent took on a totally new Constitution.

Liberalism in Australia and Human Rights

Liberalism in Australia implies support for parliamentary government, state-supported free enterprise and a certain amount of welfare measures; it does not contain the stress on individual rights and freedoms associated with liberal theory (though it may, as Albinski suggests, include considerable suspicion of authority). Thus Australian governments have traditionally….....

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