charter of rights

Question 1

what is a charter of rights

Answer 1

• a list of legally enforced rights within a country, a legal list of rights that aust. citizens are entitled to (such as the US bill of rights > right to bear arms)
• ## australia is the only western democratic nation without a bill of rights

Question 2

types of charter

Answer 2

CONSTITUTIONAL BILL OF RIGHTS (e.g. the US bill of rights)
- rights can’t be amended by the government
- strong bill of rights, but takes some governmental power away as it is above government influence
- high court interprets the bill, looking at the wording
- for example, the wording in the right to bear arms is ‘a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed > this raises questions of wording to be interpreted > what is militia? is it just people in a well regulated milita who can bear arms?

STATUTORY BILL OF RIGHGTS (e.g. UK Human rights Act 1998)
- acts lie any other statute > can be reformed by government, courts can overturn legislations inconsistent with the statute
- a more likely form the Aust. charter will take in the future

Question 3

what rights would the aus charter potentially contain?

Answer 3

based on the 3 big international law:
- UDHR 1948
- ICCPR 1966
- ICESCR 1966

Question 4

arguments for the esablishment of a charter of rights

Answer 4

• high community support: 87% of Australians support the ida of a Bill of Rights
• would strengthen and improve our human rights record > our history has been bad with our treatment of Indigenous people + asylum seekers etc
• increase government accountabiltiy > if govrnment tried to amend our rights such as in the 2014 attempt to amend the racial discrimination act, they would be made to be accountable under the human rights act
• reflect Australian values and improve international image. Our laws and international standing currently shows us as being a country that is weak towards human rights with a bad reputation

Question 5

arguments against the establishment of a charter of rights

Answer 5

• status quo is good enough. Aust already has strong protections through statue, constitution, and courts > some people believe a charter would change nothing
• democratic processes of our government offer a better protection of rights through things such as the separation of powers
• charter might undermine parliamentary sovereignty, as the government wil not be as free to make laws and decisions because they would have to be accountable to charter. This is an issue under a constitutional model because the model essentially gives any reform power to the courts and takes power away from the government (e.g. US inability to remove right to bear arms)
• costly and time consuming. People believe as we already have adequate protections, wasting time formulating a new charter and arguing about what rights to include. Even if the charter is passed it gives courts more case and work, taking time away from actually improving rights through democratic processes or legislation