The Bill of Rights: Why Australia Shouldn't Adopt One.

Bill of Rights for Australia: - Is It Necessary? Ricky Gordon Edith Cowan University POL2127 – Australian Politics When it comes to the issue of Bill of rights in Australia perhaps the question is not on why there is none, but rather on whether there is a need for one. A mention of the bill of rights out rightly leads most people to think of the first, second and fifth amendments that gave people the freedom of speech, protection on gun ownership and the right to remain silent for suspects as outlined in the American Constitution. The truth, however, is that Australia just like America, has a constitution that goes way back to the founders and which are extremely hard to amend. Australia is one of the oldest democracies which up to date has not adopted the bill of rights. As such, policy makers are at crossroads when it comes to enacting the bill of rights. Some legislatures think that the bill of rights will be effective in promoting the liberties of people, religious tolerance and offer equal opportunities to every group. Further, they argue that Australians need the bill of rights due to the inadequacies evident in the constitutional provisions and several constitutional clauses have a narrow scope, exhibiting difficulties in interpretation. However, concerns arise as the bill of rights contains uncertainties that are unavoidable and fails to take into account the countervailing aspects such as racial vilification and defamation. The bill of rights is not effective in guaranteeing i di iduals full protection of freedom and liberty rights. The freedoms in the bill of rights denote to be illusionary, and it oppresses the citizens. The judges enforce the laws enacted by the parliament, and hence the citizens are able to enjoy the freedom of liberties. The parliament is where the will of people can be expressed using the ballot box. The bill of rights is only grounded on the idea that the people's rights are conferred upon by the judiciary system. The principles and values of Australians are reflected in the parliamentary elect, and thus democracy is entrenched in the constitutional rights. The bill of rights is unnecessary. The Australian Human Rights Centre (AHRC) defines human rights as the interdependence of civil, economic, political and social rights (Williams, 2017). In a system of government created by the founders of Australia, what proceeds, is a constitution and legal system that incorporates all of these factors regarding the rights of its citizenship already. Some of the human rights provisions that can be found in the constitution include: Section 41, gives the right to vote, section 51, protection against acquisition of property illegally and section 116, freedom of worship (Nadim, 2015). An effective way of addressing political power is through dividing it (checks and balances principle) and the use of the federal constitution ensures that there is the correct division of power in all practices. Muhlenberg (2005) views Australia as already a nation with strong foundations and safeguards of human rights through the maintained checks and balances system which provides security to the citizens more effectively than the Bill of rights could. With the bill placing emphasis on the justice system, its effectiveness could be limited especially in Australia where a dynamic social-political context exists. It is critical to note that the performance of the judiciary is entangled in the debate of what is true in the political setting. The bill of rights can reduce the Individual rights of citizens. Religious, economic and political freedoms exist in cases where freedom and liberty of individuals prevail (Kant, 1929). Traditionally, the purpose behind the doctrine of human rights has been to protect individuals from dominance by groups (Chandra, 2017). A bill of rights poses a threat to individual human rights because the interests of the group are given primacy over the rights of the individual (Newton, Thannhauser, & Jackman, 1998). This is clearly seen in the case of cults in the US, due to the broad definition of the right to freedom of religion. To specify, the right to freedo of religio , does t prote t people agai st u ethi al oer io pro esses that are applied i religious ults (Pretorius, 2018, p. 220). The Schuppin v. Unification Church case exemplifies this, where the plaintiff was forced to work in compulsory service. The lawsuit fell short due to the plaintiff proving that the use of mental restraint to retain the member in the cult was used but not physical force, demonstrating that the rights of the individual were overshadowed by the legal requirements of the bill at the hands of the group (Lucksted & Martell, 1982). Pretorius goes on to highlight that what can be discerned from these rulings is that protection of the right to freedom of religion does not cover every act that may result on the grou ds of a e er s i terpretatio of his or her parti ular elief s ste . (2018, p. 227). Furthermore, In society there is often a divergence between interests and wants of individuals and what is desirable for the welfare and safety of the group (Pecorino, 2001). If a bill were to be enacted, the judiciary, rather than the government is faced with what Huscroft, Miller, and Webber (2014) all opti isi g o eptio s of proportio alit ; here the gai i pu li i terest is weighed against the restriction placed on the right using the principal of proportionality. When addressing the balance of competing interests, the problem (as clarified in the next paragraph) becomes that the judiciary is not able to provide objectively justifiable conclusions compared to the democratically justifiable conclusions of the legislature (Huscroft, Miller, & Webber, 2014). Therefore, the principal behind the doctrine of human rights is challenged under a bill of rights and the enactment of the bill perverts its original intention. The bill of rights will weaken the democracy of the nation. The bill of the rights will profoundly weaken the democracy of Australia due to the cost of judi ial di tatorship. Charles orth, a propo e t of e a ti g the ill of rights argues that a ri her understanding of democracy, involves acknowledging that there are some rights that are so basic to human dignity, that they should be taken out of the political arena and given special prote tio (2002, p. 39). The halle ge ith Charles orth s ie is the fa t it ig ores hat Waldron (1999) would consider to be the judiciary cost imposed on democracy. This cost is a result of the judiciary review process, which is incurred on democratic society following judges decisions regarding human rights matters. This occurs because judges can be driven by various political and ideological affiliations, et are t e posed to the sa e de o rati for es that elected representatives are. In other words, politicians are elected and it is in their interest to adhere to majority sentiment if they wish to maintain power. Judges do not have this framework to consider when making decisions. Furthermore, according to Waldron, considerations regardi g hat rights people should ha e is si pl o s ie tious i i dis ussio ithout a deadli e (1993, p. 35), inferring that rights are not simply cost-benefit calculations but are evolving philosophical debates amongst society concerning morality. Thus, elected members are voted in by society which invalidates the power of the judiciary to promote democracy (Hitchens, 2003). The enactment of the bill can lead to judicial dictatorship that would affect the rule of law, eroding democracy in Australia. judicial review always incurs some kind of democratic cost because the decision has been made by non-democratic means. If a court makes a good decision about a democratic right, there is some substantive gain for democracy to set off against that loss. Where a court makes a bad decision, however, then there is both a substantive and a procedural cost for democracy (Stone, 2002, p. 487). Excessive power and politicisation of the judiciary. The bill of rights diminishes parliamentary supremacy which politicises and emboldens the judiciary with excessive power. People have argued that the dynamics between security and rights is rather one-sided under the current system, and with the enactment of a bill of rights, ethical judicial decision-making would be substituted for political negotiation (Mason, 2006). On the other side, others argue that advocates of the bill of rights neglect the flaws of a courtcentered charter (Tham & Ewing, 2007). When a bill of rights is implemented, the judiciary is seen as the only custodians of human rights, as seen in the US. Tham and Ewing highlight that there are grave consequences which follow from this assumption which are that legal de isio s become the key material in interpreting and articulating human rights, and legal expertise will be seen as necessary for human rights literacy and that such a trajectory threatens to impair the protection of human rights (2007, p. 465). The committee on Law and Justice of the NSW Legislative Council shared this sentiment when, in response to Attorney-General the Hon Jeff Shaw in 1999, argued that a bill of rights would undermine the role of parliament and the courts, and diminish parliamentary supremacy. The committee further rejected the idea of a bill of rights on the basis that it would politicise the judiciary as parliamentarians are directly elected by and a ou ta le to the people, i a a that u ele ted judges are t (Dyer, 2018). Hence, a bill of rights would provide the judiciary with excessive power which leads to the politicization of the judiciary. Furthermore, the rights in a bill at times can conflict with one another and require judicial interpretation. Zimmerman notes that rights do u e ts are al a s ague, aspiratio al creatures and give no guidance on what interests rank the highest. This leaves plenty of scope for o k judi ial i terpretatio (2008, p. 2). The ways in which the judges interpret the right is vitally influenced by the political environment as well as judicial ethical values which creates potentiality of biases and inconsistencies. In principle, the enactment of a bill of rights would allow the courts to have the power to change the existing legislation in a way that will conform to the judicial rulings (Carrick, 2010). The enactment of the bill of rights would only o fer o judges a power to veto legislation retrospectively, on the basis of judgements of political oralit (Goldsworthy, 2010, p. 74). The judicial power will only work to diminish the rule of law rather than enhancing it. Thus, the shift in power to the judges from the elected officials could be dangerous as the court fails to offer an effective interpretation of the entrenched rights. Undermines Australia’s federalism The bill of rights will under i e Australia s federalis promoting the power of centrally-appointed judges, imposing extensive restrictions on the ability of the state to exercise its power (James, 2004). One of the main benefits of federalism in Australia is that power is distributed in a democratic fashion between states, which means that legislation can be more responsive to regional requirements. Given that rights are moral and ethical quandaries, it is fair to say that they are not self-evident and when looking at history, cases brought before judges regarding rights have often not been black and white. The discrepancy behind the notion of a io s regardi g hu a rights is i porta t he o sideri g the e te t to hi h su h guarantees can co-exist with the pluralistic, different sizes for different States approach that u derlies a d justifies federalis . (Allan, 2006, p. 186). Allan (2006) refers to this as the centralising effect that court judgements make under a bill of rights like in the US; a one size fits all approach. Having a bill of rights seriously curtails the system of balances and checks (Gibbs, 1986) by ignoring the intended benefits of federalism and the necessary distinction required for individual state requirements. Promotes a litigious society The enactment of the bill of rights would allow the present laws and policies to be challenged and thus encourage frivolous, costly and timely legal actions (Muhlenberg, 2005). Drawing on from the Canadian case, where a charter of rights was enacted in 1982, it is possible to see hat a lie ahead for Australia s future as the Australia Co issio 's proposals are earl ide ti al to pro isio s i the Ca adia Charter (Ferguson, 1990, p. 219). Ferguson states that the charter has not only increased the number of charter cases by five hundred to a thousand each year (p. 219), but also: increased lawyers trial preparation time due to the provision of a s orgas ord of e argu e ts, raisi g osts of litigatio p. 219) and created a huge backlog of cases as a result of introduced complexity, stating that the time the supreme court takes to issue a judgement doubled in the first three years of the charter being enacted (p. 218). Furthermore, Furedi & Bristow make the claim that a culture of litigation, as found in the UK, only benefits greedy lawyers as it imposes huge financial and social costs in the way that fear of litigatio urtails professio al auto o , stifles i o atio a d leads to defe si e pra ti es (2010, p. 1). The excessively litigious society that a bill of rights would impose on Australia is not only complex but also very costly to judges, lawyers and society as a whole. Conclusion The bill of rights is unnecessary in Australia as it operates well under the current constitutional democratic system. As it is now, the Australian Constitution captures the rights of the people despite not being consolidated. Introduction of the law will upset the balance of power between the judiciary and the legislature. It will give the judiciary more power which will da age the atio s de o ra . The ill of rights requires effective interpretation, but the judiciary has little guidance that could help in the process. The outcome of the bill of rights depends hugely on the ethical view of the judges. The emphasis on groups of rights which the bill of rights promotes, discriminates against some people and diminishes the individuals rights. It will also culminate in the increased litigation process that is damaging to the society. Therefore, the argument presented vividly showcases that there is no reason why Australia needs to adopt the ill of rights as it ill se erel da age the atio s de o rati ourse a d affe t the constitutional mechanisms as well as promote the concentration of power in the judicial hands. References Bill Muhle erg. . What is ro g ith a ill of rights? , Ne s Weekl Mel our e , Retrieved on August 27, 2018 from http://www.newsweekly.com.au/articles/2005aug13_c.html Gi s “ir Harr , . A o stitutio al ill of rights . 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