Considering that contempt and contempt for human rights have led to barbaric acts that have outraged the conscience of humanity, and that the arrival of a world in which people must enjoy freedom of expression and belief and freedom of fear and want has been proclaimed as the supreme aspiration of ordinary people, whereas it is essential that while man should not be forced to resort to rebellion against tyranny and oppression as a last resort, human rights should be protected by the rule of law. Preamble to the Universal Declaration of Human Rights (1948) At the heart of the international system is the importance of respecting the Charter of the United Nations and its purposes and principles. At the national level, governments should translate their international obligations into national legal frameworks, from constitutions to corporate regulation. A fair and equitable legal framework should govern all sectors of society in order to promote peace, development and human rights. These framework conditions must be applied and applied in a full and impartial manner. A legal regime cannot be imposed on the Australian people. Nor should it be. An imposed regime would not achieve the objectives of a Bill of Rights. Rights only make sense if they exist in an appropriate legal, political and cultural environment. Finally, the Constitution of the USSR of 1936 included a Bill of Rights at the height of the great purges initiated by Joseph Stalin. What is needed is a change that produces a culture of legal protection, including tolerance and respect for rights, based on the fundamental values of the Australian people.
Accordingly, any system that seeks to better protect civil liberties through a constitutional or legislative amendment must be judged by its scope, not only to amend the text of the law, but also to establish a culture of legal protection in Australia. This was a remarkable success of the Canadian Charter, which was praised for its “success in improving the `culture of freedom` in Canada.” (83) The Bundestag has made several attempts to introduce a legal bill of rights or to amend the Constitution in order to recognise new fundamental freedoms. (28) The amendment of the Constitution is provided for by referendum in accordance with Article 128. A proposed referendum must be adopted by an absolute majority of both houses of the federal parliament or twice by one chamber, then by a majority of the people and by a majority of the people in a majority of the states (i.e. in at least four of the six states). (29) Forty-two proposals, few of which concerned human rights, were submitted to the Australian people in accordance with Article 128. Of these, only eight have been adopted. (30) The four proposals were rejected at national level and in each State. For supporters of change, the results have been bleak. The highest national “yes” vote for one of the proposals was 37.10%, which was true for the “one vote, one value” proposal. The fourth proposal received a surprisingly low vote, the lowest of all the proposals.
At the national level, 30.33% of voters voted “yes”, while 68.19% voted “no”. This was the lowest positive vote ever recorded in Australia. In South Australia, the yes vote was only 25.53%, in Tasmania 25.10%. The failure of the 1988 referendum undermined any initiative to include other rights in the constitution or to implement the final report of the Constitutional Commission. 13. Human Rights and Equal Opportunities Commission (Cwlth) Act 1986. See P. Bailey, Human Rights: Australia in an International Context Butterworths, 1990, Chapter 5. It should be noted that the Human Rights Legislation Amendment Bill 1998 and the Human Rights Legislation Amendment Bill No. 2 1999 propose important amendments to the Human Rights and Equal Opportunities Commission.
For example, under the Human Rights Amendment Bill, 1998, the Commission`s investigative and reporting functions would be abolished and replaced by a system to pursue complaints that have not been resolved by arbitration in the Federal Court for a binding decision. Under the Human Rights Law Amendment Bill No. 2 of 1999, the Commission should be restructured and renamed the Human Rights and Accountability Commission. The common law system, supplemented by laws protecting certain rights, does not protect fundamental rights as comprehensively as constitutional guarantees and human rights conventions. The common law is not as invincible a protection against violations of fundamental rights as was once thought. (81) Although the presumption that a rule is supposed to be compatible with fundamental rights may be superseded by sufficiently clear terms, that presumption constitutes an essential level of protection of what has been called the `principle of legality`. The Secretary-General`s consultations also underscored the importance of accountable and accessible institutions that implement this legal framework in a fair and impartial manner. At the international level, international dispute settlement institutions are an important tool for Member States to resolve disputes peacefully. Such facilities must be equally accessible to all States.
The International Court of Justice is, of course, a central organ. As you will recall, in 2012, the Secretary-General launched a campaign to encourage Member States to accept the jurisdiction of the Court. Although the Australian Constitution does not contain a Bill of Rights, it does guarantee certain important freedoms. More importantly, in 1967, Sir Robert Menzies argued that “the rights of individuals in Australia are as adequately protected as in any other country in the world.” (66) It considered that Australia did not need a Bill of Rights, as fundamental freedoms were adequately protected by the common law and the common sense of elected representatives, as limited by the doctrine of good governance. This reflected the views of the authors of the Australian Constitution expressed in the 1890s. Sir Owen Dixon, former Chief Justice of the Supreme Court, suggested that the authors wonder why “doubts are expressed about the wisdom and certainty of entrusting it to the chosen representatives of the people. all legislative powers, essentially without hindrance or restriction.” (67) For these and other less acceptable reasons (in particular the desire to allow states to enact discriminatory employment laws on the basis of race), the authors rejected an adapted clause in the US Bill of Rights that would have meant that a state “would not live in any person without due process of law, Freedom or property”. or to deny a person subject to its jurisdiction the same protection of its laws”. (68) The Constitutional Commission replied in April 1987 in an interim report(54) in which it recommended extending the scope of the explicit rights already enshrined in the Constitution, but also indicating the need for a wider change.
For example, it was recommended that the protection of religious freedom provided for in article 116 of the Constitution be extended to laws adopted by States and Territories. The Commission`s final report was presented in June 1988(55) and was much more ambitious. He proposed to protect rights much more strongly by constitutional means than his Advisory Committee. The Commission recommended that a new chapter (chapter VIA – Rights and Freedoms)(56) be included in the Constitution, which contains a wide range of fundamental rights, which are strongly derived from the Canadian Charter of Rights and Freedoms. (57) It also recommended that a person whose rights have been violated should be able to seek an appropriate remedy before the courts. The Commission rejected the limited guarantee of expression proposed by its advisory committee and instead recommended unrestricted freedom of expression. (58) The Commission also refused to include in the Constitution a provision that would allow the Commonwealth or states to legislate `independently` of a guarantee. A majority of the committee noted that a power to “reject” or override constitutional guarantees “is incompatible with the entire process of entrenching rights in the Constitution.” (59) It is generally accepted that the rule of law and respect for human rights are linked. The Universal Declaration of Human Rights states in its preamble that human rights must be protected by the rule of law, except in cases where rebellion against tyranny and oppression is the only way out. Ideally, people should want to follow the law and have confidence that legal processes will lead to fair outcomes.
The second way in which the need for major changes was reflected in the Convention was for delegates to support an ongoing constitutional review process. The Convention decided that if a republican system of government was to be introduced by referendum, at a time of at least three years or more than five years later, the Commonwealth government should convene another constitutional convention. This convention would examine the functioning and effectiveness of the republican system of government established by a constitutional referendum, as well as all other issues related to the functioning of the Australian system of government under republican agreements, including the rights and obligations of citizenship and the constitutional aspects of Indigenous reconciliation. .