The Case Of Ruddock V Vadarlis

Good afternoon, my name is Stephanie Jones and I am a currently a human rights lawyer. Human rights are the basic freedoms and protections that everyone is entitled to purely for simply just being a human being. Today I would like to use this opportunity to discuss with you the greatly debated issue of an Australian Bill of Rights. Australia currently does not have a Bill of Rights, but is the current legal system coping without one? The answer to that question in my opinion is no. Australia currently is not adequately protecting individual human rights without having a Bill of Rights. While many people would argue that yes, Australia protects individual rights well enough as it is, just as many people passionately argue that Australia does indeed need a Bill of Rights for a variety of reasons which will be talked about in greater depth later on. In my talk with you today, I would like to discuss with you all what exactly a Bill of Rights is and what it aims to achieve, how a Bill of Rights has worked in other countries and some of the more popular arguments for and against having one.

In this essay I will examine the development of Australian society and subsequent rights given to Australian citizens, thus addressing the guiding question as quoted at the top of the paper.

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

Over time the High Court has used the constitution to make important judgements for the betterment of Australian society.

Preventative Detention Orders serve as a viable alternatives to judicial trials, by allowing Police to ‘detain or restrict the movement of individuals without charge or conviction’. External reviews of PDO’s by the Law Council of Australia has deemed these measures ‘justifiably balance security and civil liberties’ by prioritizing community safety over the presumed innocence of terror

The adversarial nature of Australia’s court system deal with facts and legal implications. Here lies the establishment of such principles that make the law

In this essay I will be critically analysing an article and report on the relationship between Australian law and International law, reflecting on the Universal Declaration of Human Rights and whether it ensures the safe guard of human rights for future generations. I will then analyse whether this promotes peace and equality internationally.

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.

The Australian Legal System response to the Mabo case has changed greatly ever since the first time it was introduced. Many different acts were introduced and/or amended as a result of this case. The effectiveness of the law and the law reform in protecting the rights of individual and society at large is demonstrated throughout this essay.

By having constitutional over-site in matters relating to the implementation of laws, one important aspect of this role is to ensure that all Australian citizens are treated equally. In particular, the

In addition to National and State laws Australia is a founding member of the United Nations and a party to major Human Rights Treaties. The right to vote without discrimination, is set out in the International Covenant on Civic and Political Right (article 25) and the International Covenant on the Elimination of Racial Discrimination (article 5). Both these treaties bind the Australian Government. The right to vote is also set out in the Universal Declaration of Human Rights (article 21) which Australia signed in 1948. There is debate whether Australia’s current approach to deny prisoners the right to vote where they have been sentenced to imprisonment for more than three years satisfies its treaty obligations. The Australian Human Rights Commission holds this view.

The case raised major issues as to prisoners’ rights, Indigenous rights, the right to vote, representative democracy and responsible

A potential issue is in relation to the rise of judicial activism, where judges take ‘active political involvement … in contentious social issues.’ Due to the political and social issues that may arise in section 116A cases, it is likely that judicial activism could be exercised, having profound implications. This approach is als o referred to as “progressivism”, which in this case, would see section 116A interpretation construed ‘in line with perceived community and social expectations’. This may be a positive advancement in achieving reconciliation, as equality for Indigenous Australians is a community and social expectation, as seen from the 1967 referendum and numerous government support

Judicial independence requires that judges be independent of the executive and legislative branches,33 and “from other sources of influence”.34 As former Chief Justice of the High Court of Australia, Sir Gerard Brennan, explains, this includes judges being “incorruptible by prospects of reward or personal advancement and fearless in applying the law irrespective of popular acclaim or criticism”.35 Judicial independence is crucial to the maintenance of the rule of law as it is only an independent judiciary that can guarantee the equality of all parties before the law.36 As former Supreme Court Justice Debelle has acknowledged, without an independent judiciary ordinary citizens would be “seriously handicapped, if not prevented, from challenging

The topic of whether Australia needs a Bill of Rights to protect basic Human Rights of all Australians or whether the existing laws within Australia provide adequate protection is a highly controversial topic with many different views debated throughout Australia.