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Should Australia Adopt a Bill of Rights? Essay

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Updated: Jun 3rd, 2020

Introduction

When adopting a Bill of Rights (Human Rights Act), it is necessary that Australia should follow the pattern of Victorian Charter on Human Rights and Responsibilities Act 2006. Victorian Charter of Human Rights/Responsibility Act of 2006 is important, because it addresses the following.

“By drawing the nexus between policies and practices with human rights standards, the Charter becomes a powerful tool that changes the way the Victorian Government and public authorities function. CLA has advocated for the inclusion of economic, social and cultural rights in the Charter. Incorporating these rights will go far in achieving protections for children, women, disabled, indigenous and other vulnerable groups and would reposition economic, social and cultural rights within a rights based framework. This would also provide individuals and advocacy groups with more tools to serve their interests, and make public authorities transparent and accountable” (Charter of Human Rights and Responsibilities Act 2006, p.10). Focusing on this statement, it is necessary for Australia to adopt a Human Rights Act. Moreover, this should be done according to the (Victorian) Charter of Human Rights and Responsibilities Act 2006.

Thesis Statement

Even though, Australia has not adopted the Human Rights Act, it is important for the country to adopt a Bill of rights, following Victorian Charter due to several reasons.

Reasons for adopting the Human Rights Act

First, a Bill of Rights will enhance adequate support for human rights/freedom. It is evident that there is inadequate protection given to human rights in Australia, and this can be supported by the following assertions.

“Human rights are not given comprehensive and consistent legal protection in Australia. Many basic rights remain unprotected and others are haphazardly covered by an assortment of laws. There are numerous examples of violations that fall through the gaps in the current regime. The state of human rights for many disadvantaged groups in Australia remains precarious and vulnerable” (A Human Rights Act for All Australians 2009, p.8). In order to salvage this unfortunate situation regarding legal protection of human rights, Australia has to adopt Human Rights Act.

On several occasions, human rights and dignity have been violated in Australia, through unfair legal justice and harsh punishments. Therefore, adoption of the Human Rights Act will enable the Australian government to fairly execute punishments. In executing punishment on offenders, the public interest may be expressed, though in most cases, such interests are unconstitutional. Therefore, the public interest should only be considered to the extent that they adhere to the constitution and common good. In the process of legal proceedings, there are several steps that the government can take to investigate a case, but these procedures can violate the personal/ public interest. For instance, the government can investigate to justify a case (Kokott 1998, p.34). There is a relationship between the degree of government invasion and the objective basis to justify the move. When a government makes a move to invade a case in court, there are several ways in which that steps magnitude can be viewed. For instance, a government may choose to let a suspect free on trial, regardless of the courts standing orders. In addition, the government may choose to pardon several sentences passed on those found guilty (Fisher 2007, p.46).

Second, a Bill of rights may not only boost human rights/fundamental rights consideration, but it will also enhance national security. Objective of argument on the government’s move is normally national security or other individual behavioral considerations. The government is justified to objectively let go a legal under custody for reasons of classified national security interests. This justification could also possibly be made by an individual’s offer to buy his/her freedom in exchange of crucial information to the government. Nonetheless, the government on keen scrutiny of the subject suspect or prisoner may choose to pardon a convicted person. Most probably, individuals are pardoned on basis of their psychological attributes, previous records of misconduct and age (Kokott 1998, p.101).

Third, the Human Rights Act adoption, following Victorian Charter, will thoroughly check the Australian government’s approaches used in preventing criminal activities. In the exercise of law, the government has a different approach that it deems significant for deterring criminal activities. Therefore, under the topic of legal procedure, the variations raise another question on adversity. As described by the free online dictionary, adversity refers to the difference in perspectives while articulating the law. In the courts, an adversarial system is the form of law enactment that is relevant to a national jurisdiction whose results depend on an advocate’s skill in arguing his/her perspective, before an impartial judge (Kokott 1998, p.102).

The basic feature characterizing a government’s approach is seen in the process of jurisdiction. To this end, the government should allow the litigant to be at liberty to choose on whether to employ a skilled advocate to represent him/her in the trial or to do it alone. Moreover, the argument process is through testifying the accused person’s side of the story, questioning the plaintiff, presenting evidence and witness’ testimonials. The term cross-examination is common in this process. It basically insinuates the interviewing process of the witnesses (Aust 2010, p.82). There is more detail into this system.

During the criminal or civil process, discretion and thorough understanding of the societal complexity are very important. It is true that the ability to decide responsibly is appreciated over the world as knowledge and wisdom. Therefore, discretion and societal complexity in the legal process is necessary for fair and just judgment of the accused person (Aust 2010, p.85). Discretion in judgment during the legal process is necessary to satisfy the parties involved in a case. Furthermore, discretion is necessary in promotion of transparency so that the societal complexity is addressed. Transparency is one of the most anticipated institutional values and if well carried out in the legal system, it is attributed to discretion. The discretion is necessary to cultivate accountability. Moreover, among the treasured values of institutionalism, accountability is on top of the list (Fisher 2007, p.88). Accountability in the court is cultivated through discretion and addresses issues on societal complexity.

Fourth, adopting a Bill of Rights, following the Victorian Charter of Human Rights/Responsibility Act of 2006 will enhance a balanced legal system in Australia. Legal systems require a balance of extremes. This is the reason for a law to be considered just, it must always be free and fair. In this regard, there has been a balanced strike between the process and result phases in the legal procedures as well as subsequent punishment. As suggested by the terms, the process precedes the result. In order to successfully underpin the differences in the two, it is worth discussing each phase on its own (Fisher 2007, p.89).

Fifth, a Human Rights Act facilitates proper legal procedures in the Australian judicial system. Moreover, “article 76 of the United Nation’s Charter advocates for respect of human rights and fundamental freedom” and this enhances fair trail procedures (Charter of the United Nations 2012, p.1). Process involved in legal procedures is a product of several steps. The process of legal proceedings is marked by the conviction that an individual has committed a crime, thus he/she has to be arrested. Upon arrest, a person is only considered a suspect, but not guilty (Aust 2010, p.89). After an individual has been arrested, he/she is put under custody in a law enforcement center. While a person is in a law enforcement center, the process moves on by booking of the accused individual. In this step, a person’s view is taken and administrative information from his/her is taken in form of a statement (Fisher 2007, p.87).

After booking, the step that follows is arraignment. Prior to the arraignment, a date is set and the arrested individual is informed in advance so that he/she can prepare to testify in course. On the arraignment date, the arrested is obligated with one task, to plead either “guilty” or “not guilty” After the arraignment, a date for a hearing or trial is set if the legal has pleaded “not guilty” (Kokott 1998, p.98). The litigant at this time may be held by the legal agencies in jail or set free on bail. When the trial date reaches, the proceedings begin with opening statements, witnessing and evidence. Either side of the prosecutor or the litigant is given equal chance to present views before the jury (Starke 1963, p.29). After the trial, then the result phase follows.

Depending on the conclusions made from the trial process, the Jury gives a verdict. At this point, the litigant can be termed either guilty or not. If deemed guilty, the defendant is sentenced, but if not, he/she is set free. Upon sentencing, an accused person may feel unconvinced by the jury’s verdict. Therefore, there is more is chance that the convict, already sentenced at this time, can appeal his or her sentence. An appeal reopens the case to be heard again (Starke 1963, p.121).

During the appeal, either party is not allowed to bring in new evidence or misconduct of the accused. Thus, if an appeal is given, the whole process repeats from the booking procedure to the trial, and the jury again passes a verdict. Therefore, it is true to say that there is a difference between the process and result on a legal procedure. There is need to create harmony in these two processes and through the set rules of the procedure, the two indifferent phases have been able to strike a balance (Aust 2010, p.87).

In the sixth place, a Bill of Rights, following Victorian Charter will facilitate a fair/just legal system for both Christians and Muslims in Australia. Even though, Australia is dominated by Christianity, it is evident that Islamic also plays a role in the legal system. In Islam, the judges use the Holy Quran in delivering sentences. According to Islamic law, an offence such as extramarital sex is only punishable if there are four people who witnessed the act. This process makes the offence very difficult to attract punishment, because it is difficult to produce the four witnesses during the act. Moreover, on the Islamic law, the person found to be guilty of unfaithfulness is convicted to death. Generally, death penalty is accepted as a mode of punishment for hardcore criminals, according to Islamic regulation (Mron 2000, p.76). However, the sentence for single people engaging in sex outside marriage is a corporal punishment and sometimes the convicts can be jailed for a number of years.

Since Australia is also practicing Islam as its religion, the country uses Islamic laws in executing punishment for offenders. In reality, the laws against certain crimes are very strict and have deterred legal activities in the region for a long time. For example, in the country, there is a well-known practice of chopping off the hands of those who are found stealing. Depending on the item that the person steals or the nature of stealing, he/she can get this punishment. Particularly, this punishment targets capital offenders such as robbers (Mron 2000, p.87). For example, the culture of the people in Australia differs from that of the United States, thus making the mode of punishment to vary. As a result of low levels of education among the women in Australia, and strict adherence to the Islamic culture, the rules governing punishment for the convicted persons are not liberal as the case of the United States (Aust 2010, p.92).

Finally, adopting a Bill of Rights following Victorian Charter will boost women’s movement in Australia. In Australia, the freedom of women is absolutely limited to the decisions that emanate from their fathers or husbands, especially for the married people. The Islamic law limits women’s freedom to participate in elections. The limitation of the women’s freedom is similar to incapacitation punishment, which is very common in Australia (Aust 2010, p.94).

Conclusion

In sum, it is important for Australia to adopt the Human Rights Act, and follow the pattern of the (Victorian) Charter of Human Rights and Responsibilities Act 2006. Adopting a Bill of Rights, will make it facilitate the legal protect of human rights in Australia. Moreover, fair administration of justice will be boosted. This implies that the citizens will not be subjected to unfair/harsh punishments. Punishment may vary according to the government’s discretion and cultural attributed of the people. In practice, not all governments employ similar approaches in dealing with crime/offence.

Literally, depending on the offence that the person commits or the nature of the action, he/she should get equal punishment. Predominantly, the punishment should target capital offenders such as robbers, terrorists and rapists. The essay also concluded that a Bill of rights is necessary for legal proceedings in Australia. In this regard, the legal expert must not, at any time violate the value that required him/her to enhance and the standing legislations. In this sense, he/she would make informed decisions before rendering judgment about the kind of punishment that the offenders should receive. In addition, it became clear that the magistrates should allow the defendants to consult appropriately their lawyers so that they articulate their cases in a manner that is convenient to them.

Therefore, the judges will use ethical and professional passion during their duty so that the judgment that they deliver does not incline to one side. Moreover, since there is the possibility that the lawyer or judge might be summoned for the mistake of negligence, it becomes evident that the decision he/she makes on delivering the punishing the offenders may breach the ethical and legal principles, cultural practice, religious belief, and/or the legal provisions of the country. Concerning punishment, there should be a Bill of Rights in Australia, which follows the pattern of the (Victorian) Charter of Human Rights and Responsibilities Act 2006. The Human Rights Act will facilitate punishing of offenders according to the magnitude of crime/offense, without violating the fundamental freedom/rights of human beings.

References

A Human Rights Act for All Australians 2009, Web.

Aust, A 2010, “Handbook of International Law”, Journal of International Law Review vol. 270 no.1, pp. 23-96.

. 2006, Web.

Charter of the United Nations 2012, Web.

Fisher, J 2007, “Targeted Killing, Norms, and International Law”, Colum Journal Transnational, vol. 711 no.7, pp.45-89.

Kokott, J 1998,The Burden of Proof in Comparative and International Human Rights Law,” Journal Review, vol. 184 no.1, pp.23-102.

Mron, T 2000, “The Humanization of Humanitarian Law”, American Journal on International Law, vol. 239 no.94, pp.17-99.

Starke, J 1963, “An Introduction to International Law”, Law Review on Issues under International Law, vol. 53 no.1, pp.22-124.

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