Balancing Rights And Duties In Modern Australia Is Crucial, Essay.

Non-absolute nature of human rights

Human rights are those that are guaranteed to each and every person on the basis of that person's inherent worth as a sentient being. All human beings have the right to the same set of fundamental freedoms, which are known as human rights. Individuals and power systems, particularly the State, are defined by these ties. ' A state has three duties in relation to international human rights: to respect, defend, and fulfil such rights. No matter what kind of right we're talking about, the balance between these two responsibilities is the same for everyone. Human rights breaches must also be compensated for domestically by states. It is obvious from Victorian Charter Section 15(3) that an individual's freedom of speech may impinge on the rights of others (Bronitt & Stellios, 2006). Individual freedom of speech may interfere with the government's interest in maintaining national security in the second instance. The following literature review on the need for "rights and duties" balance in modern Australia is done for the reason mentioned above.

It is vital to remember that just a few rights were absolute, and these are generally acknowledged in the majority of bill of rights. Non-absolute rights are usually defined by the clauses' broad restriction (Meyerson, 2007). A bill of rights clearly outlines and justifies all of the rights that are restricted by the sections. Both the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 include the sections that limit the rights. So, for instance, human rights can only be subjected to restrictions imposed by Territory laws that are manifestly justified in a free as well as democratic society, as stated in Section 28 of the Human Rights Act 2004 (ACT) (Gardbaum, 2007).

A human right can only be the subject to legal constraints if they are manifestly justified in free as well as democratic society founded on human equality, dignity, as well as freedom, as stated in Section 7(2) of the Victorian Charter.

It is also possible to interpret the rights such that they do not apply to specific situations or benefit certain groups of people. Forced labour is particularly protected, for example, under Human Rights Act 2004 Section 26 and the Victorian Charter Section 11. (McHarg, 1999). A definition of 'compulsory or coerced labour' that excludes some types of mandatory services or employment is provided in this definition Act and Charter guarantee life, however define this right in a manner that restricts the protection to "arbitrary" loss of life, which is a limitation. This right to life is capped, for example, in Section 9(2) of the Human Rights Act 2004 (ACT) (Flock, et al., 2017). Internal constraints on a right refers to this restriction on the extent of a right's claim. In other words, it clearly defines the boundaries of the right's applicability and establishes whether or not the right has been infringed.

To help courts and magistrates assess the extent and restriction of the right, such provisions were included in the Act and Charted. They come in handy when you're balancing your rights and responsibilities. Human Rights Act and Victoria Charter, as well as other similar instruments, were designed to assist resolve two of the most common issues linked with human rights (Alexy, 2002). Conflicts between individuals' rights and non-rights-based government purposes, such as reducing crime, safeguarding public safety, and ensuring economic stability. There is a tension between an individual's right to freedom of speech and others' rights under Victorian Charter Section 15(3), for example (Bronitt & Stellios, 2006). The government's interest in defending national security may collide with an individual's right to freedom of speech. A literature study of modern Australia's need for "rights" and "obligations" was undertaken in this article.

Restrictions on human rights

Today's Australians must strike a proper balance between their "rights" and "obligations.

The broad restriction provisions of the Human Rights Act of 2004 (ACT), the Victorian Charter, and the Human Rights Act of 1998 (UK) vary somewhat when compared to each other (Aleinikoff, 1987). Human Rights Act 1998 (UK) Chapter 42 does not include general restriction provisions, but it does have a number of qualified rights that may be overridden on particular public interest reasons as well as in order to protect the rights and liberties of others. Freedom of speech, religious freedom, freedom of association, and the right to property are all protected under the Human Rights Act 1998 (UK), which is different from the Human Rights 2004 (ACT) or the Victorian Charter.

One of the most difficult but essential tasks is to guarantee that the right to religion, freedom, association as well as assembly do not impinge on the right of another individual. By "the metaphor of balance, I mean theories that strive to detect, evaluate, and compare opposing interests," T Alexander Aleinikoff claims (Aleinikoff, 1987). According to these views, it's clear that everyone's interests compete with one another for attention.

Using the balancing approach, all of your decisions will be made with an eye on first-order causes. To fully understand this, it is necessary to distinguish between two types of practical thinking (Walker, 2017). When determining how to attain a balance of arguments, the first way of reasoning is used. Decisions that have a direct impact on a person's quality of life are often made in this manner. Because certain activities support going to the movie while others oppose it, there is a conflict of interest while determining whether to go to the theatre or go shopping. First-order reasons include motives such as self-interest, morality, or any number of other considerations (Gardbaum, 2007). First-order reasons need to be balanced, and this may be done by evaluating the relative strengths of each and then pursuing the one that has the most support. As a result, considering all relevant factors while making a decision might help strike a balance between rights and duties.

The method of practical thinking is another way to strike a balance between what is right and what is required. Second-order reasoning is used to make a judgement here. It is this exclusionary reason, according to Raz, that forms the basis of the second-order reason (Meyerson, 2007). Soldiers, for example, are an excellent illustration of an exclusionary motive. Soldiers must refuse to carry out instructions if they believe that the command has no basis in logic or reason. The explicit emphasis on outcomes is a key feature of the balancing paradigm. Instead, then considering the benefits and harms of enforcing a right in isolation, it considers the repercussions of both safeguarding the right and limiting it in order to arrive at the best possible balance of positive and negative outcomes (McHarg, 1999). It also considers rights and public interest to be on equal footing in the balancing paradigm. Monistic theory is based on the premise that both justice and responsibility may be weighed, compared, and balanced on the same scale, thereby making it a single-scale theory

Balancing individual rights and government objectives

Rights, as mentioned in their introduction, cannot be seen as absolute, hence it is important to keep in mind that the public interest must always be taken into account while evaluating freedoms like freedom of religion, expression, and association (Walker, 2017). This implies that neither the Bill of Rights nor government agencies can limit the capacity of judges or magistrates to hold practical power when deciding a matter that needs a balance of rights and the duties of the government to defend the public interest (McSherry, 2014). Therefore, judges should use their authority without any interference to ensure that the rights and responsibilities of the people are properly balanced.

Perry argues that a judge might accept the non-absolute nature of rights while yet seeing the bills of rights as practical authority. To do this, courts are bound by the preceding judgement that was made on the basis of first-order considerations. The court may, however, go against precedent if they believe that the assessment of the earlier instance was incorrect and the current evaluation should have different conclusions (McHarg, 1999). Some academics have suggested that courts need to consider bills of rights as a second-order source of evidence for determining the proper balance between rights and responsibilities (Setty, 2018). They are prevented from making their own decisions in accordance with the balance of evidence. Instead, give more weight to the rights and less to the responsibilities, as is the traditional approach.

We assumed that rights do not preclude consideration of obligations, but that rights adjudication has a bias towards allowing infringements of rights. This indicates that the non-absolute aspects of rights regard responsibility as a credible opponent. Keeping the rights and responsibilities of the parties engaged in a dispute in balance is essential to ensuring that neither side infringes on the others. Finally, it is essential for the Australian legal system to achieve a balance between individual rights and responsibilities. Under the Human Rights Act 2004 (ACT) and Responsibilities Act 2006 (Vic) Victorian Charter, particular sections restrict an individual's rights in accordance with their unique circumstances. These restrictions were put in place to ensure that the state agencies' rights and responsibilities were properly balanced. It's difficult to attain explicit balance even with a balancing model that helps judges utilise first-, second-, and reweighing approaches to reach the proper balance between rights and responsibilities.

Conclusion

To sum up that has been stated above, in most cases, non-absolute rights are defined by a bill of rights' extensive restrictions. The term "internal limits on a right" refers to the limitations on the scope of a right's claim. There are two major human rights challenges that the Human Rights Act and Victorian Charter were created to address: There has to be a good balance between the Australian people's rights and responsibilities today. Under the Victorian Charter Section 15(3) or the Human Rights Act 1998, there is a conflict between an individual's right to freedom of expression and the rights of others (UK). Another technique to find a balance between what is right and what is necessary is to use the method of practical thinking. As a result, it takes into account the good and negative consequences of protecting and restricting the rights. Rather than focusing on obligations, judges should place greater emphasis on rights. Making sure that no one is trampling on the other's rights and obligations is impossible without doing so. Achieving explicit balance, even when judges use first, second, and re-weighing procedures, is very difficult.

References

Aleinikoff, A. T. (1987). Constitutional Law in the Age of Balancing. Yale Law Journal, 96: 943.

Alexy, R. (2002). A Theory of Constitutional Rights. Julian Rivers Trans.

Bronitt, S. & Stellios, J. (2006). Sedition, Security and Human Rights: "Unbalanced" Law Reform in the "War on Terror". Melbourne University Law Review, 30: 923-956.

Flock, M., Nelson, R. P., Turner, N. J., Bertrang, G. H. M., Carrasco-González, C., Henning, T., ... & Teague, R. (2017). Radiation hydrodynamical turbulence in protoplanetary disks: Numerical models and observational constraints. The Astrophysical Journal, 850(2), 131.

Gardbaum, S. (2007). Limiting Constitutional Rights. UCLA Law Review, 54: 789-806.

McHarg, A. (1999). Reconciling Human Rights and the Public Interest. Modern Law Review, 62: 671.

McSherry, B. (2014). Australia’s international human rights obligations. Gladesville: Mental Health Commission of New South Wales.

Meyerson, D. (2007). Why Courts Should Not Balance Rights Against the Public Interest. Melbourne University Law Review, 31: 873-902.

Setty, E. (2018). Young people’s attributions of privacy rights and obligations in digital sexting culture. International Journal of Communication, 12, 4533-4552.

Walker, M. B. (2017). Expalining and Confronting Australia's Refusal Adopt a National Bill of Rights. University of Wollongong.