The Need for a Constitutional Bill of Rights in Australia

This essay argues for the need of a Constitutional Bill of Rights in Australia to protect vulnerable individuals in society. It discusses the limits of judicial power and defects in democracy, and addresses counter arguments related to technology and politicization of courts.

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15 Mar 2019
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Table of Contents
Introduction................................................................................................................................3
Body of the Essay.......................................................................................................................3
First defence of the proposition.........................................................................................................3
Second defence of the proposition.....................................................................................................4
Counter argument for the proposition........................................................................................6
Conclusion..................................................................................................................................7
References..................................................................................................................................8
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Introduction
This essay will content that Australia needs a Constitutional Bill of Rights to protect
vulnerable individuals in society. This proposition will be defended in the body of the essay
by arguing that there exist limits of the judicial power and that there exist defects in
democracy. This will also address the most common objection, namely, it will overlook the
new problems related to technology and advancement and that it would politicize the courts,
for example, similar to that in US, that a constitutional bill of rights is not necessary to
protect individuals.
Body of the Essay
First defence of the proposition
A constitutional Bill of Rights is necessary to protect individuals because there exist limits of
judicial power. In Australia, the judge has the power to develop the common law, however,
they are limited in this concern (Stephenson, 2017). For example, in most of the cases, the
decision made by judges are based on similar issues that were brought to the court.
Furthermore, in most of these cases, the majority of judges were unwilling or not capable of
invoking any legal principles, in conjunction to protect the basic human rights. Additionally,
the argument can also be justified with other examples such as the high courts in Australia
have declared that there exists no lay in conjunction with rights to privacy, prisoners’ rights
were often denied, fundaments rights of Aboriginal Australian were rejected; and women
rights were often overlooked (Rudge, 2015). As a result of which, the squeezing problems for
limited categories cannot be justified properly. Likewise, the limits to judicial power can also
be considered for cases, until now, when the homosexuals were considered to be involved in
illegal activities and were punished. In all these cases, the decisions made in court are
majorly against the fundamental rights of the individual (Baharestanfar & Hashemi, 2018).
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The most common cause of this negotiation is that there exists no constitutional bill of rights.
The rules and regulations imposed over the community members were adopted from the
framework that was either established by or under the Parliament (Galligan & Morton, 2017).
Also, note that the earlier constitution and common laws were framed, keeping in mind, the
rights in the criminal process and rights related to the property. Thus, there were many
aspects of the fundamental rights which cannot be expressed or enforced by the court. With
the Federation, these experimentations, permitted legislations and its protective perspectives
were succeeded and were then copied to the different region of Australia (National Human
Rights Consultation). Due to this, the judges may not have the appropriate tool or evidence to
determine the severity of the issue and to protect the fundamental rights. Hence, it would not
be incorrect to state that the common laws framed in the past were enough to protect the
fundamental rights in the present form of society. Importantly, here in this context, it can be
argued that judges have to do so if the existing laws are clear and applicable. While
negligence is adopted irrespective of the fact that it may breach the fundamental rights of
individuals in many situational contexts. Based on these facts and considerations, the
argument of creating a constitutional bill of rights is appropriate, as because, it will support
the context of extending the judicial power (Stephenson, 2017). The judges thus not only
remain adhered to the pieces of evidence or existing laws but can modify them for the benefit
of the society. More importantly, such provision will take care of the individual’s and
community wellbeing by preserving their fundamental rights. This is the actual objective of
creating and implementing a constitutional Bill of Rights to protect the individual.
Second defence of the proposition
Another reason why a constitutional Bill of Rights is necessary to protect individuals is that
there exist defect in the present democracy of Australia. It is noteworthy to mention that the
proponents regarding bills of right, illustrate the power of making the argument for the
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requirement of the constitutional bill (Craven, 1999). In this consideration, democracy works
ineffectively, as because in Australia this means a matter of practical reality. On the contrary,
it would be appropriate to state that autocracy is the mainframe of the election, during the
period of the Australian Parliament. This can be clearly illustrated by taking the example of
Aboriginal and Torres Strait Islanders, where the rights of minorities are grievously
overlooked (Patrick, 2016). However, often after the election, the governing party may effect
for preserving the rights of minorities, but is remaining inconsistent in accordance with the
change of government (van Ham & Chappell, 2017). As a result of this, it affects the
fundamental principles including the basic rules of laws as well as the independence of the
judiciary system. Note that there exist many clauses in the enact framed by the Australian
Parliament. This enact are referred in conjunction to several statutes and authorization which
is affiliated to the delegated nature of the legislation (Baharestanfar & Hashemi, 2018). The
ultimate consequence of such enacted and spelt-out constitution framework is that the basic
fundamental rights were overlooked. The fact that existing provision supports the
requirements of urban people, majorities, and dominated groups of the society. On the
contrary, there requires a constitutional statement that should have the potential to put the
matters in safe hands including the policymakers and judges, who can make use of the power
beyond the power of transient opinionated majority population in the parliament (Galligan &
Morton, 2017). Also to note that the jurisprudence related to fundamental human rights is
introduced by the judges, with reference to the existing common laws (Dixon, 2016).
However, the legislators in this context are enacting laws by taking the reference of
international human rights and associated principles. Not that, the common laws also
provides no empowering rights to the disadvantaged people. For example, this is applicable
to the handicapped, partial population of women, ethnic minorities, mentally challenged
population, and homosexually oriented people (Rudge, 2015). Also, minorities from
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Aboriginal states are involved in the scope of lacking empowerment rights (Holcombe,
2015). This clearly shows that the introduction of fundamental human rights lacks the
legitimacy of democracy in Australia. Hence, if the issues of human rights are accepted and
endorsed by the common people, then the legitimacy will be governed by people's decision.
This will then endorse the consciousness for rights among the individuals in Australia, by
declining the fact that the legal system is not a mechanism of oppression. In this way, the
fundamental rights of community members cannot be neglected and are in accordance with
the “will” and “benefits” of the Australian people (Craven, 1999). With these intentions, the
constitutional bill is necessary and the purpose of this newer constitutional bill will be to
create a framework for the protection of Australians.
Counter argument for the proposition
The most common counter-argument that infers that individuals, cannot be protected with a
constitutional Bill of Rights, should be rejected because, with the emergence of technology
and advancement, there are many arguments and problems which were overlooked. Likewise,
because of the absence of a constitutional Bill of Rights, it would politicize the functionality
of courts (National Human Rights Consultation). The constitutional framework came into
force since the beginning of the Australian community, however, the present society is
changing and adopting new strategies for its development. For example, the racial
composition has been altered significantly, multiculturalism and cultural diversity becomes
an integral part of the majority of business sectors and also in federal parliament (Carter,
2016). Newer cases such as cyberbullying, financial fraud in online transaction, homosexual
rights, hitherto existence in ethnicity of the Aboriginal population also exist in the present
community command which is difficult to be handled by the traditional common law (Dixon,
2016). Obviously, the existing common law structure requires evidence to give judgement for
any case which is related to newer community structure and with the lack of such evidence,
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the judgement cannot protect basic rights of individuals. Furthermore, it cannot be assumed
that these features will exist for the next few decades rather, they can be considered as
disruptive community trends that will accommodate several variations with time (Triggs,
2017). This indicates that the present circumstance requires an urgent and immediate
mechanism in conjunction with the basic constitutional form (Posner, 2014). The objective
here is to express newer constitutional bills which include basic principles related to
fundamental rights of community member and thus can represent the integrity of Australia.
To add into further details, the basic principles must include subject related to civil,
technological innovation, politics, and other right irrespective of minority or majority, which
should be noted separately and could be incorporated as a new constitutional bill.
Conclusion
In summary, the present report the requirement of Bill of Rights in conjunction to protect the
fundamental human rights of the Australian community. The report argues that there is an
essential requirement of forming a new bill, which can accommodate the minorities,
disadvantaged population, and can handle the issues which are evolved on the basis of
technology and diverse cultural issues. The arguments made in this report suggest that the
common law are incapable of maintaining democracy and there are many factors which were
overlooked by the court. Hence, a new bill is required to empower the society which can
respect the democratic opinion.
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References
Baharestanfar, M., & Hashemi, S. M. (2018). Protecting Human Rights and Constitutional
Law in Bicameral Systems. J. Pol. & L., 11, 17.
Carter, A. (2016). Proportionality in Australian constitutional law: towards
transnationalism?. Heidelberg Journal of International Law, 76(4), 951-66.
Craven, G. (1999). Australian constitutional battlegrounds of the twenty-first century.
University of Queensland Law Journal. 8 (21). Retrieved 18 Mar, 2019, from
http://classic.austlii.edu.au/au/journals/UQLawJl/1999/8.pdf
Dixon, R. (2016). An Australian (partial) bill of rights. International Journal of
Constitutional Law, 14(1), 80-98.
Galligan, B., & Morton, F. T. (2017). Australian exceptionalism: Rights protection without a
bill of rights. In Protecting Rights Without a Bill of Rights (pp. 27-50). Routledge.
Holcombe, S. (2015). The contingency of ‘rights’: Locating a global discourse in Aboriginal
Central Australia. The Australian Journal of Anthropology, 26(2), 211-232.
National Human Rights Consultation. Retrieved 16 Mar, 2019, from
https://www.humanrights.gov.au/national-human-rights-consultation
Patrick, J. (2016). A survey of arguments against the constitutional recognition of Indigenous
Australian peoples. Constitutional Recognition of First Peoples in Australia: Theories
and Comparative Perspectives (Federation Press, 2016) pp, 143-157. Retrieved 19
Mar, 2019, from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561143
Posner, E. (2014). The case against Human Rights. The Guardian. Retrieved 18 Mar, 2019,
from https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights
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Rudge, J. (2015). Australians' Right to be Bigoted: Protecting Minorities' Rights from the
Tyranny of the Majority. Brook. J. Int'l L., 41, 825.
Stephenson, S. (2017). Should Australia Have a Bill of Rights? Legal Affairs. Retrieved 16
Mar, 2019, from https://pursuit.unimelb.edu.au/articles/should-australia-have-a-bill-
of-rights
Triggs, G. (2017). The protection of human rights and the idea of a'fair go'in Australia
today. Redress, 26(1), 8.
van Ham, C., & Chappell, L. (2017). Democracy and human rights: A tripartite conceptual
framework. Australian Journal of Human Rights, 23(2), 143-167.
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