Law Assignment: Exploring the Need for a National Charter in Australia

This law assignment explores the critical need for a National Charter in Australia, arguing for its implementation to safeguard human rights and promote social justice. The assignment begins with an introduction to the Australian legal framework, highlighting the absence of a Bill of Rights and the existing human rights protections. It then presents arguments in favor of the National Charter, focusing on the rights protected by the Constitution, national and state legislation, and the current gaps in human rights protection. The assignment emphasizes how a charter would improve governmental accountability, intensify human rights protections for all Australians, and address social justice issues, particularly for vulnerable groups such as indigenous communities and asylum seekers. It discusses the limitations of existing legislation and the need for a comprehensive framework to ensure fairness and equality. The assignment concludes by reiterating the importance of the National Charter for aligning Australia with other democratic countries and fulfilling its international obligations, ultimately promoting a society where human rights are prioritized and protected from government overreach.

Running head: LAW ASSIGNMENT
Law Assignment
Name of the Student
Name of the University
Author Note

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Table of Contents
Introduction......................................................................................................................................2
Arguments in favor of introducing a National Charter in Australia................................................3
Rights protected by the Constitution...............................................................................................3
National Legislation.........................................................................................................................3
State Legislation..............................................................................................................................3
Need for introducing the National Charter......................................................................................4
A charter would improve the accountability and quality of the of the Australian government......4
Intensification of the Human rights protections for all Australians................................................5
Social Justice...................................................................................................................................5
Gaps in the existing Australian human rights legislation................................................................5
Conclusion.......................................................................................................................................7
Reference list...................................................................................................................................8

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Introduction
Australia is a signatory to the Universal Declaration of Human Rights Convention and
has ratified to the other conventions associated with the UDHR. The Declaration and the
associated conventions aim at safeguarding the rights and freedoms of the individuals. Australia
is a democratic country that does not have Bill of Rights and the question whether the country
should introduce a Bill of rights has been subject to several controversies. Although there have
been arguments against and in favor of the introduction of a National Charter of Rights, but there
are instances that makes it evident that the Government of the country have been engaged in
human right violations and such human rights are not effectively safeguarded by the prevailing
human rights legislations of the country.
The arguments against the introduction of the National Charter are based on the
contention that the elected governments and politicians have enacted legislations with a view to
safeguard the rights and freedoms of the citizens and such laws adequately safeguarded. Such
individuals who strongly express their voices are the politicians and those individuals whose
rights have not been infringed and hence they consider the prevailing human rights framework to
be efficient. However, the arguments in favor of the introduction of the national Charter of
Rights are substantially more convincing. This is because Australia is the only western
democratic country that does not have National Charter, and for reinstating its position as a
country that respects and shields the freedoms and rights of the people and renders social justice,
it is imperative for the country to adopt a National Charter.

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Arguments in favor of introducing a National Charter in Australia
Rights protected by the Constitution
The Australian Constitution safeguards five individual rights including the right to vote
(s.41), right to trial by jury (s. 80), right to protection against acquisition of property (S. 51),
freedom of religion (s. 116) and prohibition of discrimination (s. 117). Further, with the
implementation of the Common Law, the judges often safeguard several rights that are
recognized as human rights by applying the principles of Common Law. There is no human
rights legislation in any state or territory except the ACT and Victoria.
National Legislation
In order to enforce the international legislation, it must be implemented through domestic
legislation such the Racial Discrimination Act 1975 (cth) which implements the International
Convention on the Elimination of all Forms of Racial Discrimination) and the Sex
Discrimination Act 1984 (Cth) which implements the Convention on the Elimination of all
Forms of Discrimination Against Women. The Australian Human rights Commission has been
set up by the Human Rights and Equal Opportunity Act 1986 (Cth) plays a significant role in
safeguarding the human rights.
State Legislation
The states and territories have anti-discrimination legislation and human rights agencies
to safeguard the human rights of the citizens. In case of violations of human rights, the aggrieved
are entitled to lodge a complaint before the Commission provided such complaint relate to the
any misconduct on part of the Commonwealth. Even under circumstances, where the

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Commonwealth violates the human rights, the Australian Court is not empowered to award a
remedy against such violations. The Commission can report such complaints to the Parliament
and suggest recommendations. However, the Australian Government is not obligated to adopt the
recommendations made by the Commissioner before the Parliament.
Need for introducing the National Charter
One of the fundamental purposes of introducing a National Charter is to safeguard the
human rights of the community from the abuse or misuse of power by the government. Several
people in the community are debarred from the human right protection and the individuals, in
particular, the vulnerable and the disadvantaged such as the indigenous, children, elderly,
homosexuals and other minorities. It is imperative that the country adopts a national charter to
ensure protection is granted to the disadvantaged and vulnerable. The significance of introducing
a National Charter in Australia is discussed below:
A charter would improve the accountability and quality of the of the Australian government
The introduction of the Charter would set out the responsibilities of the Governments,
Ministers and other governmental departments. The courts would enable these authorities and
bodies to respect and value the rights of the Australian citizens. The benefits of introducing a
national Charter is evident from the experience of other countries such as the UK Human Rights
act 1998, New Zealand Bill of Rights Act 1990, USA Bill of Rights 1971, which states that it
focuses more on the experience of the individual ensuring protection of their human rights.

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Intensification of the Human rights protections for all Australians
Several critics have stated that the country is a signatory to several important,
international human rights agreements. However, in practice, such international human rights
cannot be enforced through the domestic legal system as they are often not incorporated intp
Australian Law. The enforcement of such international law has been restricted and the
individuals mainly rely on the fair treatment practice executed by the Common law principles
and the executive. These legislative provisions may be fragile and inconsistent at times owing to
the incline in the power of the executive, which makes remedying human rights violations
difficult and intricate.
Social Justice
According to critics, the politician o the country should be trusted and if necessary , vote
them out as the democratic system of the country provides best protection of human rights.
However, there are several policies that have been formulated without having due consideration
about the human rights standards, such as detention laws, NT emergency response, immigration
laws etc. The need for human rights in the social inclusion policies is pertinent as it emphasizes
on ‘fairness’ and the Charter shall lay the foundation for resolving issues related to fairness, in
particular under those circumstances where the prevailing the legislations fail to provide
effective remedy against the unfair treatment. The Charter shall aim at rendering social,
economic and cultural justice for all the citizens of the country.
Gaps in the existing Australian human rights legislation
In regards to the aboriginals or the indigenous communities, there have been alarming
instances in the past, which is evident to establish that the aboriginal have been subject to

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discrimination. The recent laws passed by the Australian government with respect to the
indigenous community such as, the Native Title Act or the Northern Territory Emergency
Response (NT intervention) legislation failed to secure protection for the aboriginals. In the NT
intervention, the Federal Government suspended the stipulated provisions of the Racial
Discrimination Act for applying the certain rules, which is non-applicable for the non-
indigenous people.
In regards to the asylum seekers, the High Court was compelled to rule in the Behrooz’s
case that the imprisonment of the asylum seekers for a long time irrespective of the conditions of
their detention was legal. Further, in Woolley’s case, the court was unable to pass an order for
releasing the detained children because the domestic law of the country did not recognize the
children human rights. it is also evident in the case Minister for Immigration and Ethnic Affairs
v Teoh, where the High Court accepted Australia’s statutory obligations under the UN treaty of
the Rights of the Child even though such Treaty has been ratified but has not been implemented.
A federal Human Rights Act would ensure that the issues related to human rights are
taken into careful considerations while formulating the policies. The Parliament shall take into
consideration how the enacted legislations would affect the human rights of the citizens. The
parliament should set up agencies and Committees that would act as watch dogs to ensure en
effective implementation of the human rights. This would provide the indigenous people a means
of drawing the attention of the government towards the discriminatory treatment that the
indigenous are subjected to before the enactment of the legislations.

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Conclusion
If the Country adopts a National Charter, it would provide the citizens of the citizens of
the country with an opportunity to have a say about the violation of their human rights and
expect that their violations shall be remedied. The National Charter would enable the
Commission to make significant contribution to the national consultation and ensure that such
consultations made comply with the human rights obligation of the country. The introduction of
the Bill of Rights shall be beneficial to the country and it is imperative for the country to put it in
line with the other democratic countries and the meet the obligations of the countries with
respect to the several treaties that it has ratified. Further, the enactment of a National Charter
would also establish that fact that every individual is entitled to enjoy their human rights
irrespective of their ages, caste, race, sex,, nationality and the human rights should be placed
above politics and ensured that such human rights are safeguarded form being exploited and
misused by the government.
The introduction of the Bill of Rights would ensure that policies are formulated with an
objective to the promote social justice and to focus on the fairness of the treatments to which the
individuals are entitled. The bill shall promote acceptance and respect for the fundamental
liberties and rights and encourage awareness and tolerance within the community. It would
ensure that the vulnerable and the disadvantaged are guaranteed equality in all aspect without
being subject to discrimination.
From the arguments discussed above, the country must introduce a National Charter, as it
would be in the interest of the public. Although, it is still acknowledgeable that the National
Charter is not the only way to safeguard the human rights and there is a need for the protections
provided by the States and territories, prevailing legislations and the common law system. Given

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the gaps in the existing legislation, the country should consider introducing a National Charter to
reinforce the human rights legislations with a view to safeguard the citizens from violations, thus
promoting social justice.
Reference list
Australian Human rights Commission [1986] (Cth)
Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous affairs
[2004] HCA 36
Convention on the Elimination of all Forms of Discrimination against Women
Human Rights and Equal Opportunity Act 1986 (Cth)
Minister for Immigration and Ethnic Affairs v Teoh [1995] 183 CLR 273
Native Title Act [1993] (Cth)
New Zealand Bill of Rights Act 1990,
Northern Territory Emergency Response (NT intervention) legislation2007
Racial Discrimination Act 1975 (Cth)
Re Woolley [2004] HCA 49
The International Convention on the Elimination of all Forms of Racial Discrimination)

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The Sex Discrimination Act 1984 (Cth)
UK Human Rights act 1998,
USA Bill of Rights 1971