The Human Rights Bill

The Human Rights Bill is a comprehensive legislation that recognizes and protects the inherent dignity and value of every human being. It incorporates 23 human rights, including those from international treaties, and gives special importance to the rights of Indigenous people. This bill aligns with Bentham's Utilitarian Theory and Dworkin's Liberal Theory, but also raises concerns from the perspective of Critical Legal Studies. It is a significant development in Australia's commitment to human rights.

Running Head: The Human Rights Bill
The Human Rights Bill

The Human Rights Bill
Table of Contents
Human Rights Act 2019.............................................................................................................2
Bentham’s Utilitarian Theory....................................................................................................3
Dworkins Liberal Theory...........................................................................................................4
Critical Legal Studies.................................................................................................................6
Bibliography...............................................................................................................................8
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The Human Rights Bill
Human Rights Act 2019
The current concept of human right is based on Universal Declaration of Human Rights that
is adopted by UN General Assembly. The main aspect of UDHR was to invest the faith of the
people back into human rights after world war. After UDHR, Australia has ratified following
treaties on human rights-
 Convention on the Rights of the Child1
 International Covenant on Civil and Political Rights2
 Convention on the Rights of Persons with Disabilities3
 Convention against Torture and other Cruel, Inhumane or Degrading Treatment4
 International Convention on Economic, Social and Cultural Rights5
 International Convention on the Elimination of All Forms of Racial Discrimination6
 Convention on the Elimination of all Forms of Discrimination Against Women7
Australia is not a party to the United Nations Declaration on the Rights of Indigenous People
but the government supports it. Through ratification, Australian government has welcomed
the legal obligations under international law. If a country wants to incorporate the laws of the
treaty then they have to implement those laws into their domestic laws and regulatory
framework. The Human Rights Bill 2018 that was introduced by Attorney General of
Queensland and Minister of Justice Yvette D’Ath consist of the laws which recognise
“inherent dignity and value of human being and it recognises the equal and inalienable human
rights for every citizen and non-citizen”. This bill became act on 27 February 2019. This act
consists of 23 human rights. Most of these rights are taken from International Covenant on
Civil and Political Right, two Rights are drawn from International Covenant on Economic,
1 Convention on the Rights of the Child, United Nations Human Rights, (1989) <
https://www.ohchr.org/en/professionalinterest/pages/crc.aspx>
2 International Covenant on Civil and Political Rights, United Nations Human Rights, (1966) <
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>
3 Convention on the Rights of Persons with Disabilities (CRPD), United Nations- Disability, (2006)<
https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-
disabilities.html>
4 Hans Danelius, The Torture Convention, Audiovisual Library of International Law, (10 December 1984) <
http://legal.un.org/avl/ha/catcidtp/catcidtp.html>
5 International Covenant on Economic, Social and Cultural Rights, United Nations Human Rights, (1966) <
https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx>
6 International Convention on the Elimination of All Forms of Racial Discrimination, United Nations Human
Rights, (1965) < https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx>
7 Convention on the Elimination of All Forms of Discrimination against Women, UN Women, (2009) <
https://www.un.org/womenwatch/daw/cedaw/cedaw.htm>
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Social and Cultural and one right from Universal Declaration of Human Rights. This bill
gives special importance to human rights of Indigenous people and their self-determination.
Bentham’s Utilitarian Theory
In the idea of results the utilitarian incorporates the majority of the great and terrible created
by the demonstration, in the case of emerging after the demonstration has been performed or
during its exhibition.8 The main idea of Bentham’s theory can identified as sovereignty,
command and sanction. The utilitarian test focuses that the action is right or wrong. The bill
presented by the Attorney General, have the 23 human rights which covers almost every right
and duties related to human and their rights. Utilitarian theory suggests that there should be
greater good for greater number of people.9 The new bill will be covering vast number of
people whose rights have been violated such as rights of indigenous people in Australia. This
bill have taken rights from so many international instruments that automatically it is covering
large number of areas of human rights. This bill complies with the principles of Utilitarianism
theory since it focuses on achieving greater good for a greater number of people. Through
this bill, people in Australia will be able to recognise their rights to make sure that those
rights are not violated by third parties. However, one of the key issues with this bill is the
lack of availability of any specific remedies for people whose rights are violated since
provisions of remedies are not included in this bill.
In the Minister’s statement, the sovereignty of this bill is highlighted; however, it can be
argued that it could be useless when it comes to actually protecting the rights of people in
Australia since the provisions of remedies are not given as in Victoria. This limits the
application of this bill and it also makes it difficult for parties to make sure that their rights
are protected through the provisions of this bill. This also contradicts with the principles
given by Ronald Dworkin who argued the importance of equality. Dworkin provided that
equality of should maintained among all individuals; however, this bill provided that the
human rights recognised in this bill are not absolute and they must be balanced against the
rights of other public policies as given under section 13 of the Human Rights Act 2019.
However, these principles complies with the provisions given under Critical legal studies
(CLS) since it claims that laws are used to maintain status quo in the society and they also
lead to biases. By maintaining the application of human rights with other public policies, the
principles of CLS is maintained; however, the elements of Utilitarianism theory is not
8 Michael Freeman, Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell, 2007).
9 Andrew Heard, The Challenges of Utilitarianism and Relativism (1997)
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fulfilled which shows that certain changes must be made in the bill for increasing
enforcement of these principles to comply with Utilitarianism approach.
Dworkins Liberal Theory
Dworkin's origination of radicalism is included in two standards
(a) that governments
"treat every one of those in its charge as equivalents, that is qualified for equivalent concern
and regard" [2] and
(b) derived along these lines
“that the administration treat each one of those in its charge similarly in the dissemination of
some asset of chance or possibly work to verify the situation in which they all are equivalent
or all the more about equivalent in that regard”.
Obviously these standards probably won't be only the right of a liberal government. It may be
contended, Dworkin says, that before the substance of equivalent treatment can be explained
an administration must have before it a hypothesis of what may comprise the great life for
natives. Natives can't be treated as equivalent individuals except if it is comprehended what
exactly people are about. It would as needs be reason that the substance of equity it owes its
natives based on these standards must be found as far as the great life for its residents that has
been politically supported. A liberal political structure would reject such a methodology. A
liberal methodology isn't to make due with one origination of the great life in the political
structure. Or maybe, natives in a liberal society have accessible to them the same number of
originations of the great life as they wish.
The critique of the bill of human rights can be conducted after understanding the principles of
which Ronald Dworkin and his understanding about the ethical principles. Ronald Dworkin -
one of the best contemporary political and legitimate savants - began building up his
complete liberal hypothesis of a focal position of the idea of uniformity right off the bat in a
field of reasoning of law, at that point pursued liberal political hypothesis of equity/political
ethical quality. Lastly he endeavoured to explain philosophical establishments of this
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hypothesis of political profound quality10. Dworkin has built up his hypothesis of equity in a
referential system of liberal hypothetical endeavours – started by John Rawls during the 70s
of the twentieth century – to reclaim political way of thinking and hypothesis of equity, all
together that political authenticity of liberal political and financial request be rethought and
rearticulated as dependent on equity, for example only redistribution of assets11. Fairness of
asset record of equity speaks to an essential issue of Dworkin's endeavour to display populist
face of radicalism, to guard solidarity of estimations of equity and freedom, and to certify
estimation of balance as the focal estimation of progressivism12.
As per this theory, the application of the bill of human rights is considered as valid as per
certain provisions which are given in this theory. This theory argues based on two tramlines
one of which focuses on positive whereas another focuses on the negative aspects. The
recognition of the 23 rights given in Part 2, division 2 and 3 of the Act are considered as
ethical as per the positive tramlines of this theory which argues that the rights of individuals
should not be eroded. This also complies with the provisions of Utilitarianism theory which
provisions similar views regarding protection of rights of greater number of individuals.
Since this act resulted in setting out specific legal rules for recognition of human rights, it is
considered as ethical and this section also complies with the provisions of the Utilitarianism
ethical approach.13 However, the negative tramlines of this theory argues that judges are not
the ones that made the law, but, they are the once who make decision on the grounds of
principles. This element is not presented in this bill since the provisions regarding
enforcement of these rights are not included and they are also not absolute as per section 13
of the Act.
Dworkin's hypothesis of equity, considered uniformity of assets that is record of equity, on
the grounds that,
• firstly, it is a focal point of Dworkin's as yet being created and profitable
hypothetical heritage;
• secondly, it speaks to an exceptionally mind boggling hypothetical undertaking
which should be especially broke down; and, thirdly, Dworkin's origination of (law as
10 Michel Rosenfeld, Dworkin and the One Law Principle: A Pluralist Critique, p. 363-392
11 ibid
12 ibid
13 Dragica Vujadinovic, Ronald Dworkin- Theory of Justice, European Scientific Journal
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trustworthiness) and of profound quality (philosophical establishments of his
hypothesis of equity), just as his particular origination of progressivism can't be
completely comprehended without understanding his uniformity of assets record of
equity.
All together that like cases be chosen in a like style, it is fundamental for legal officers to
character the points of reference relevant to a case, yet in addition the standards behind those
points of reference. The standards must be connected to the present issue for mediation14. In
taking shape the standards behind past cases, the "point" of the basic leadership with respect
to those cases must be considered. The foundation of the "point" behind a case will help the
adjudicator in understanding it.
In the bill presented, the Dworkins theory is specifically followed as the theory specifies that
there should be equality among the society. There are some rights presented in the act which
cannot be alienated. Some of the rights cannot be transferred to other person. According to
the theory of Dworkin, there should be equality which is to be preferred over liberty.
Minorities should be treated as normal citizen just like any other person living in the country.
They too have same civil and political rights. The bill provides the basic civil, political and
cultural rights to every person including the people who belong to minority community and
indigenous people. When there is violation of rights of the people who belongs to minority
then it is the duty of judges and the courts to give justice to the victims. Special protection is
given to the minority people under various international instruments.
Critical Legal Studies (CLS)
A scholarly development whose individuals contend that law is neither unbiased nor esteem
free yet is in truth indivisible from legislative issues. CLS tries to essentially adjust statute,
uncovering it as not a sane arrangement of aggregated knowledge but rather a belief system
that supports and makes conceivable an out of line political framework15. CLS researchers
endeavour to expose the law's claims to determinacy, impartiality, and objectivity. The law,
in CLS grant, is an apparatus utilized by the foundation to keep up its capacity and mastery
over an unequal the norm. Straightforwardly a development of radical governmental issues,
CLS looks to subvert the philosophical and political specialist of what it sees as a low social
14 ibid
15 Critical Legal Theory, Legal Information Institute, (1992) <
https://www.law.cornell.edu/wex/critical_legal_theory>
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framework16. The scholars of Critical Legal Studies have claimed that the political character
of the legal field provides the lawyers with the help of fellow workers and client to change
the structure of and thinking of people towards the current social order. The Human Rights
Bill provides the right to every citizen of the country and especially to those who were
neglected from long period of time like indigenous people and aboriginal people.17 The
lawyers can provide the better implementation of the Human Right Acts of they are dealing
with case in which there is violation any right mentioned in the Human Right Act. The
provisions of the Human Right Act are applicable on every citizen and if there is any other
law which is inconsistent with the provisions of the act will be null and void.18
However, contradictory views given under section 13 of Human Rights Act provide an
opposing view than compared to the CLS because the human rights can be overlooked by the
court in order to uphold other public policies.19 The provisions regarding enforcement of
these policies are also missing which also contradicts with the CLS as with Utilitarianism
theory.20 Since these policies are not fulfilled, the elements of Dworkin theory did not meet as
well which shows that although effective measures are taken by the government by
introducing this bill to recognise human rights; however, provisions regarding enforcement of
these principles should be made to ensure that the human rights are not violated in Australia.
16 ibid
17 ibid
18 Critical Legal Studies, West’s Encyclopedia of American Law, (2005) <
https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/critical-legal-studies>
19 Critical Legal Studies Movement, The Bridge, (2019) <
https://cyber.harvard.edu/bridge/CriticalTheory/critical2.htm>
20 ibid
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Bibliography
A. Articles/Books/Reports
Andrew Heard, The Challenges of Utilitarianism and Relativism (1997)
Michel Rosenfeld, Dworkin and the One Law Principle: A Pluralist Critique
Dragica Vujadinovic, Ronald Dworkin- Theory of Justice, European Scientific Journal
Michael Freeman, Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell, 2007)
B. Legislations
Convention on the Rights of the Child
International Covenant on Civil and Political Rights
Convention on the Rights of Persons with Disabilities
Convention against Torture and other Cruel, Inhumane or Degrading Treatment
International Convention on Economic, Social and Cultural Rights
International Convention on the Elimination of All Forms of Racial Discrimination
Convention on the Elimination of all Forms of Discrimination Against Women
C. Others
Convention on the Rights of the Child, United Nations Human Rights, (1989) <
https://www.ohchr.org/en/professionalinterest/pages/crc.aspx>
International Covenant on Civil and Political Rights, United Nations Human Rights, (1966)
< https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>
Convention on the Rights of Persons with Disabilities (CRPD), United Nations- Disability,
(2006)< https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-
persons-with-disabilities.html>
Hans Danelius, The Torture Convention, Audiovisual Library of International Law, (10
December 1984) < http://legal.un.org/avl/ha/catcidtp/catcidtp.html>
International Covenant on Economic, Social and Cultural Rights, United Nations Human
Rights, (1966) < https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx>
International Convention on the Elimination of All Forms of Racial Discrimination, United
Nations Human Rights, (1965) <
https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx>
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Convention on the Elimination of All Forms of Discrimination against Women, UN Women,
(2009) < https://www.un.org/womenwatch/daw/cedaw/cedaw.htm>
Critical Legal Studies, West’s Encyclopedia of American Law, (2005) <
https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/critical-
legal-studies>
Critical Legal Studies Movement, The Bridge, (2019) <
https://cyber.harvard.edu/bridge/CriticalTheory/critical2.htm>
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