Essay The Australian Constitution

After looking at other example of Bills of Rights around the world, with America having theirs for 224 years, Canada having implemented theirs for 30 years and the UK for 17 years, Australia needs to consider each nation’s Bill of Rights’ respective strengths and weaknesses when considering our own Bill of Rights in order for it to best suit the current and future society. Canada adopts something of the middle ground between the strongly entrenched rights in the United State’s constitution and the United Kingdom where the British parliament remains supreme with a weak level of right entrenchment, making it perfect for the situation in Australia.

A Bill of Rights is a document containing a formal list of individual rights and freedoms in a society which the society deems to be fundamentally important to all citizens. The purpose of a Bill of Rights is to provide protection of the rights which have been set out. Unlike most democratic countries, Australia does not have a Bill of rights to assist in the protection of fundamental

I don’t believe that the Australian constitution stacks up against the US constitution. It is extremely wordy and not as well planned out in my opinion, but it’s working and they’re aren’t too many complaints

This has come from the Australian community and international human rights monitors who have stated that “There are still areas in which the domestic legal system does not provide an effective remedy to persons whose rights under the [International Covenant on Civil and Political Rights] have been violated … [Australia] should take measures to give effect to all Covenant rights and freedoms.” There hasn’t only been a recent push for a Bill of Rights, Former Chief Justice Sir Anthony Mason wrote in 1997 that “Australia's adoption of a Bill of Rights would bring Australia in from the cold, so to speak, and make directly applicable the human rights jurisprudence which has developed internationally and elsewhere. That is an important consideration in that our isolation from that jurisprudence means that we do not have what is a vital component of other constitutional and legal systems, a component which has a significant impact on culture and thought, and is an important ingredient in the emerging world order that is reducing the effective choices open to the nation state”. Brian Galligan who is an academic expert on citizenship stated that “the old confidence in the effectiveness of parliamentary responsible government and the common law for protecting human rights has been undermined by more realistic accounts of the weakness of parliament and the increasingly residual domain of common law compared with the plethora of statutory laws.” The answer to whether Australia needs to adopt a Bill of Rights in order to protect Australian citizens is simple… yes and

This exclusion leaves the obligations of Public Authorities on the shoulders of; Public Officials, working in an administrative capacity; any entity with public function; The Victorian police; local government; ministers; and members of a parliamentary committee when working in an administrative capacity. This means that when members are authoring legislation, or when the judiciary is scrutinising legislation, the actors involved are not obliged to act in a compatible way with the charter. This makes enforcing legislation to be compatible with human rights nearly impossible, as there is no responsibility for the authors of that legislation to abide by the charter.

The “Bill of rights” has been devise as a follow-up to Parliament's earliest Habeas Corpus bill, which guard personal freedom and liberty. Now almost every colony had a bill of rights. The Bill of Rights is a situated of limits on the vitality of the administration. Firstly, the Bill

Now I shall talk about how the Australian Constitution. It’s common knowledge to know that a constitution is pretty much the law of the land and a foundation of the laws that rule there. Constitutions are very important for countries to have. Helen Irving explains in The Oxford Companion of Australian Politics that, “Its Preamble records the agreement of the six Australian colonies to federate in 1901 and to remain together as ‘one indissoluble federal Commonwealth’.” The Australian Constitution was written as a bill when the colonies met in 1890. The constitution has a full draft by the end of 1891 but colonial parliaments failed to pass it (Irving).

Parliamentary sovereignty is the key stone in the British Constitution. If judges were to make law then they would be contradicting this doctrine. The legislative supremacy disqualifies the courts power to review the validity of legislation, refer to British Railway Board v Pickin . The objective of judges is to not make law but simply declare what the law had always been. Acts of Parliament are the highest form of authority and the courts hands are tied by it. But through the doctrine of precedent, the judicial function of declaring and applying the law has a ‘quasi-legislative effect’.

There are ten documents in “The Making of Constitution”, each document demonstrates the process of forming a constitution. For instance, these documents illustrate the disagreement between the servitude and abolition of slavery, the religious freedom, and the forming a new constitution. In document one, an African American names Cato appeals his emotion toward the bring back of servitude, after he and his family had tasted the sweets of liberty. He claimed that the state of bringing back the slavery is the cruelest act that a man can make, thus he suggests that hanging them would have been more merciful.

Human rights are the right that any individual is entitled under their government, and it can be provided in divergent forms. Thus in Australia, there are no set of ‘Bill of Rights’, comparable to many other western countries that share similar legal values and standards. The American ‘Bill of Rights’ states that the government ensures the freedom of speech and religion, protection from torture and punishment, and the fair procedures of law . There has always been a great debate on whether Australian government should acquire a constitutional Bill of Rights. I believe that it is not necessary to obtain a Bill of Rights as it is not necessary for Australian legal system, and further, it can bring confusion, greater debate and litigations. There are other forms of human rights law introduced into Australian legal system which sets boundaries for the government to respect individual rights. Consequently, it proves the unnecessity for a Bill of Rights in Australia.

It is widely recognised that Australia’s System of decision making in the court is in need of significant reform, if the nation’s present and future need for fair justice is to be met.

Compared to the US Constitution, the rule of law in the UK is seen as

Professor Larry Sabato is the founder of the Center for Politics at the University of Virginia presents 23 proposals to revitalize our Constitution and Make America a Fairer Country. His book provides insight for a hard fought debate. Whether you like his suggestions or not or you agree with him or not, you have to respect anyone that can outwardly state that the United States Constitution as it has been handed down is “outdated.” This quest for reform I’m sure would anger many political conservatives who believe that the Constitution that we know today, is not in need of any reform, and is just the true document that is has always been and should remain.

Traditional Originalism led the court as the method of constitutional interpretation until the late nineteenth century. Judges were compelled to interpret the Constitution based on the original meaning of the provisions. The Originalism view interprets the constitution line by line exactly as the founders would have found it. Later, during the early twentieth century, progressives in the legal community proclaimed that due to the changing social environment as time goes on in the nation, the political system needed to be reconfigured. They thought that the political system needed increased national government authority and a modern administrative state. They also thought that the increased national authority and modern administrative state wouldn’t work well with the traditional Originalism interpretation of the constitution. After long political battles in and out of the court, they won the argument and the Constitution would be adapted without formally amending it. Debates were waged over whether or not the Constitution could be changed through interpretation instead of the originalist requirement of amendment, and over whether or not the Constitution was to be viewed as living. The notion of a “living constitution” was developed, and slowly set precedent as landmark cases made their way through the supreme court, and the interpretation of the constitution was put to the test.

Broad law-making power would remove judicial independence. Judges would become influenced by Parliament, and the political system if they had a larger role in law-making. There would be a reduced amount of protection from the authority of Parliament. The apolitical nature of the judiciary would be challenged if they had a greater role in law-making. Judges political identities would increase, with decisions pushing specific agendas. This would be unconstitutional. The separation of powers doctrine would be threatened, as the roles of the legislature and the judiciary would overlap. Judges would have a comparable law-making ability to the legislature. This would lead to a greater risk of the abuse of power, and an undemocratic society.