Maintaining a feasible balance between free will and government control is a constant and historic ideal that has driven the evolution of society for thousands of years. Law has been self imposed on mankind in order to regulate unwanted behavior and streamline acceptable and appropriate lines of acceptable living. Morals, ethics and personal preferences from all segments of society should be accurately represented to design a comprehensive and ultimately fair and balanced code of conduct. While the struggle to make sense of this seemingly perpetual argument seems to evade modern civilization, Australia's current constitutional debate is worthy of discussion.
The purpose of this essay is to evaluate both the arguments for and against Australia adopting a Bill of Rights to be included in their national constitution. I will present several arguments profiling the possible outcomes of following the status quo or implementing a new federal policy that would affect millions of Australians and future citizens of the country. After examining the finer points of both sides of the argument I will make final conclusions and recommendations regarding the issue.
Supporting An Australian Bill Of Rights
Reason #1: Words are important
Rights are definitely difficult to define and are of a subjective nature. How does one determine what is right and wrong? Where do rights come from and who, or what entitles these rights to those who wish to adopt them? Rights are indeed imaginary and abstract and hold no material value. Gregg (2001) suggested " Once we examine such questions, we immediately find ourselves confronted with a major problem. Put simply, contemporary secular jurisprudence has proved unable to provide any plausible account concerning the origins of rights." It is very important, therefore to reasonably define the term "right" before supporting an type of promotion of such rights within the Australian government.
Some definitions fall short. According to the Victorian Equal Opportunity and Human Rights Commission, " human rights are the basic entitlements that belong to all of us because we are human beings." This circular logic sounds good, however, a more reasonable definition seems appropriate. I therefore prefer to define the term myself: Rights are universal entitlements, recognizable or not. It is impossible to define this term without interjecting subjective and moralistic language, a strong reason for supporting a constitutional bill which would bring an apparent unification, or division on the subject.
Morals need to be dictated and spread across the country for them to take any effect within a populace. Words are important and give meaning to the experiences that humanity endures. Words also provide boundaries and useful markings that allow for growth, learning and understanding. The words we use on a daily basis form and shape our means of communicating with one another. The importance of celebrating words that define and outline what human rights are, give positive attention to the ideals behind the words and gives more general attention towards the topic.
Reason #2: Leadership
Australia is the only western nation not to have adopted a national Bill of Rights. The country is extremely unique in this manner. Remarkably, Australian political leaders encourage other countries to adopt Human Right policies. This is quite hypocritical and denounces the Australian leadership position. How can the Australian government be taken seriously in international rights issues if they themselves cannot boldly promote a national policy?
Adopting a Bill of Rights would bring Australia in line with the rest of the world and it can be respected as a leader in such issues. It is important to back up and validate, for sincere purposes, what a nation is promoting to the rest of the world. The nation's reputation is very important and fragile. International business ethics are becoming more regulated and Australia has much to risk in terms of taking a back seat on progressing human rights.
Reason #3: A Bill of Rights is obviously needed.
Human rights violations within Australia are rampant. There is a vacuum of enforcement within the country. Funnel (2010) pointed out the problem, "The result is that while the discourse of human rights is a useful one, it is usually only deployed in a way that ignores abuses in wealthy, Western countries, while allowing for a "first world" condescension that pathologises and stigmatises poorer nations." Human rights violations occur when any crime or unwanted physical attack is perpetuated. Additionally, " Since 1990 the UNHRC has heard almost fifty complaints against Australia. In seventeen (17) of those cases, the UNHRC found that Australia violated ICCPR rights. While some Australians find it embarrassing or outrageous that a foreign tribunal can sit in judgment of Australia, Australia does not have a Bill of Rights so our own courts cannot hear complaints about human rights violations."
Adopting a national Bill of Rights becomes a pathway to cooperating with the rest of the world on a level basis. Only when the entire world can share the value of human life will cooperation occur and laws and regulations start to work. Until then, it may appear to be one big misunderstanding, lost in translation.
Reason #4: A Bill of Rights would help improve the quality of government.
Universal understanding within the entire nation of Australia would serve a greater purpose than its currently disjointed system. When Victoria took it upon themselves to install a territorial charter of human rights a new beginning of positive, yet unresolved, influences of change occurred. Evans an Evans (2006 p.281) noted how this test has shown progress in what was once thought an ungovernable task. " the Charter requires government to undertake periodic reviews to assess its effectiveness, " and " the Charter opens up possibilities for effective legal redress, either directly through legal remedies for breach of human rights or through its interpretative provisions narrowing the range of authorised government conduct."
While the subjective matter of human rights does place added judicial pressure to attain fair verdicts, it is of primary importance to be explicit in what the judicial system should stand for. The least a federal charter of human rights accomplishes is a reference point for all judicial review. This is a both a starting point and a fixing point to measure the level of unity on the subject of human rights. Nations need to reflect some important points about humanity and the society it creates. Legislative processes and enforcement or secondary in importance to the ideals they are trying to protect and demonstrate. The act itself of pronouncing a unified stand on the subject of human rights, symbolic as it might be, will actually lead to possibly less legislative and bureaucratic hindrances.
Opposing a National Bill of Rights
Reason #1: It is not needed.
The opposite standpoint of the subjective nature of what rights are and aren't come into discussion when supporting the status quo of no charter. If rights are so subjective, they become too abstract and the law becomes immaterial and vague. Australia should take note of their special status in the world to no need a Bill of Rights. The less government the better in many cases. When the enforcement of rights violates human rights what exactly is being solved? Unnecessary guilt trips being promoted by Australian citizenry is damaging to the collective psyche. Australia's unique history demonstrates that human rights are implicit in their way of live. To overly promote such qualities only serves to detract from their greater meaning.
Australia does not suffer from a human rights crisis. It is easy to lump all violations into human rights violations, so a government monopoly on what one may determine a violation is a dangerous practice. Individual responsibility and tolerance serve society more than a false and empty proclamation of protecting human rights. A common sense attitude prevails as long as Australia avoids to formally consecrate a charter or this magnitude.
Reason #2: It places too much power in judge's discretion.
Kilcullen (2000) explained this argument, " One of the chief arguments against a constitutional Bill of Rights is that it gives judges too much power. The courts interpret the constitution, and from the highest court there is no appeal (though the Constitution can be amended -- a difficult process). As Americans sometimes say, "The U.S. Constitution is whatever the Supreme Court says it is." He continued, " To many it seems better to keep the courts free of politics and leave rights issues to the ordinary political process, in which politicians can be held responsible by the electorate -- on this view the best safeguard of basic rights is the political culture of a democratic country."
Human rights are going to be violated regardless of what is written in the constitution, it is important therefore to set reasonable and acceptable levels of tolerance. Rights are subjective and some believe they are entitled to more or less than someone else. Forcing equality upon each other distracts us from discovering our best and most diverse talents. Struggling through human right oppressions, at all levels, has allowed humanity to develop…