Australia must implement the bill of rights since the existing system is ill-equipped to meet the needs and demands of a modern democratic society
The constitution of a country dictates the manner in which the executive powers operate within the legal framework of that country. It provides a guideline for effective governance and also lays down the framework on which successive governments base their policies and decisions. It is therefore very important that the constitution serve as a reference point for drafting new rules and regulations that affect the country from time to time.
Often there are instances when the short-term interests or the passing trends of the changing society come into conflict with the constitution and its laws. It is often seen that radical elements within the society, without prejudice to the propriety of their cause, often demand reworking the constitution to suit their immediate requirements.
Similarly, long standing requests to change the constitution may also surface, which is in fact, driven by a genuine need to modify laws that can make healthy contributions to the society for a long time to come. In such cases, some of the laws or even the guiding principles of the constitution may be altered to suit a wider spectrum of changes that would immensely benefit the society in the long run.
Often the regulations that are defined in the constitution may also come under fire for its obsolete content that could be in conflict with the modern trends of the society. Similarly age old practices and beliefs, which could be unsympathetic to a particular social group or people, also may be required to change in the new age of liberalism and equality.
The constitution of Australia has long been under severe criticism for its provisions that are partial to certain social groups. Many constitutional experts believe that the system in place in Australia is fragile and that it requires constant nurturing and attention in order to adequately protect the rights of every citizen in the country [Author not known, 2004]. This, many argue, is because Australia is a relatively younger country and needs to modify its rules and regulatory framework from time to time.
Many believe that Australia is still in a stage of learning where past mistakes committed by it, as well as other nations can provide the necessary impetus for it to improve its own constitutional system. The demand for a bill of rights in Australia could have been in fact prompted by the American experience. The bill of rights in the UK and the U.S.A. provided the necessary protection that is due to every citizen of the country.
In essence it prevents the over assertion of the state power and ideally makes the law transparent and unambiguous. Many experts believe that it is high time that Australia had its own version of the American bill of rights because many feel that the constitutional system in the country, which was significantly based on the colonial English administrative model, is too limited and confusing. A system that would list the basic rights of an individual and one that would force the government to treat the individual within the limits set by this system is overdue in Australia.
It is interesting to note that the founding fathers of the constitution of Australia openly rejected the proposal for a bill of rights. Since the Australian constitution was based on the British and the American system, it was only natural that a proposal for inducting a bill of rights was made. However, the proposal was rejected outright because the people who drafted the constitution of Australia felt that such a move would put the government into a great disadvantage.
They felt that the provisions of the bill of rights would prevent them from invoking laws against the aboriginals and the Chinese who were discriminated against in this country [Kirby, 1997]. Hence, it is quite evident that the bill of rights was rejected as a legal option out of the fear of the loss of influence of the government. That the bill of rights was prevented from gaining entry into the executive branches of the constitution proves that the white dominated majority wanted to maintain their dominance over the natives as well as people of foreign origin. This is an unfortunate example of the total lack of commitment by a legal framework that should have ideally considered all citizens equally.
Further events in the history of the development of the constitution in Australia prove that the mistakes that were committed by the founding fathers were not revoked even when the subsequent governments had a chance to do so. Many attempts to include a bill of rights was repeatedly defeated at the house by people who were more concerned about their interests than the interests of the ordinary citizens of the country.
Subsequent enactments of laws were not encouraging either. People believe that the controversial provisions like the jury trial, freedom of religion etc. are very one sided, and does not consider all Australians equally. These provisions prove that the commitment of Australia towards a free and fair system that considers all Australians equally is highly suspect and falters due to many inherent weaknesses.
Many of those who oppose the enactment of a bill of rights in Australia have vociferously asserted that the Federal parliament has the power to enact laws that would in effect, amount to provisions envisaged in a formal bill of rights charter. However, this argument is not justified because past instances have shown that the commitment of the law makers in Australia is not fully sympathetic to the cause of the underprivileged in the country [Kirby, 1997].
A look into history and an assessment of the ground realities in the legal setup in Australia would prove that the bill of rights is an immediate requirement in the country to safeguard the interests of those who are not in favor with the majority of the society. For example, it may be seen that both the people of Australia as well as the successive governments of Australia have repeatedly denied or rejected any proposal that would extend equality and freedom to all sections of the society [Chappell, 2002]
Often desperate politicians, in a bid to implement some statutes that are similar to the bill of rights, would come up with formal bills, which however would get drowned in the politically motivated hue and cry in the parliament. Many suggestions that would extend basic rights to the citizens were either turned down or objected to vociferously, ultimately resulting in its shelving. Even the judiciary cannot be spared for its one sided legal judgments that often saw the rights of the citizens curtailed to a great extent.
Often, the judgments passed by the courts have proved that the country needs to improve its laws, in order to assimilate changes that are rapidly happening around the world. Time and again the courts reminded people that the colonial 'legal baggage' had to be dumped in order to qualify the judiciary in this country as a free and fair executive power. For example, through the course of the Dugan case, it became clear that a prisoner sentenced to death in Australia, lost his civil and legal rights automatically.
He could not appeal for his case in the courts. This is a gross violation of human rights because all over the world, it is being accepted that the convict must have equal rights to prove his innocence or to prove that he was falsely implicated. The denial of this basic right speaks volumes of the utter disregard to human values, which ideally, the courts must protect. Similarly in the McInnes case, a convict was compelled to represent himself in the court rather than being allowed to seek the help of an attorney.
It must be noted that the issue at hand is not about the seriousness of the crime that one does. In fact it could be possible that some criminals deserve the punishments for the crimes that they do. However, the handing down of the punishments must happen transparently so that the average citizen's belief in the law is left intact. Punishments, however appropriate, cannot be accepted as just, if the convict is not given the minimum facilities that modern humanitarian gestures would allow.
There are many other arguments for the bill of rights. Since a perfect democracy exists only in ideals, it would be only proper to have a system that protects the citizen from the high handedness of the state. Similarly a formal bill of rights would lighten the load on the judiciary and give it a framework on which important cases that relate to human rights could be decided. It must also be accepted that the courts are not always in a position to protect basic rights, because they themselves operate under many restrictions.
Past instances have shown that the courts have often failed to protect the rights…