Introduction
Australia and the United States of America have both held the act of securing human rights to high esteem, and as liberal democracies, are formed on the basis of freedom and self governance. Although both nations have different methods to protect the rights of its citizenry, efforts are made through their respective legal and political systems in order to provide consistency to these rights and their maintenance by government authorities.
Methods of Protecting Rights – Australia
Australia has a number of methods in which civil and political rights are protected. Unlike many similar nations such as the US, Australia has no single unifying document for individual human rights, but instead combines the constitution, common law and acts passed by commonwealth parliament to protect the rights of its citizens.
During the framing of the Australian constitution in the 1890's, debates were held on the adoption of a bill of rights similar to that created in the United States. The proposal for this was defeated and the draft which would eventually become Australia's constitution contained few protections for individual liberty and human rights. The few explicit rights contained in Australia's constitution consists of the right to vote (s41), protection against unjust acquisition of property (s51), the right to a trial by jury (s80), freedom of religion (s116) and the freedom from discrimination on the basis of state. (s117) The Chief Justice of the High Court in 2003, Murray Gleeson, said that "the Australian Constitution, as a plan of government for a federal union, is largely concerned with pragmatism rather than ideology", and former ATSIC Chair Lowitja O'Donoghue stated "It says very little about what it is to be Australian. It says practically nothing about how we find ourselves here – save being an amalgamation of former colonies. It says nothing of how we should behave towards each other as human beings and as Australians."
Despite the apparent benefits, Australia has consistently refused to implement a constitutionally entrenched bill of rights. Any amendment or change to the Australian Constitution to include a bill of rights would require a referendum. The passing of referendums has been consistently difficult since it requires a national majority vote. Only 8 out of 44 proposals to alter the constitution have ever been approved. A constitutionally entrenched bill of rights is also substantially more inflexible, as it could not take into account changing circumstances and opinions. The anachronistic nature of set-in-stone rights manifests itself most notably in the United States Second Amendment of the Constitution, the right to bear arms, preventing gun control measures from being implemented.
Common law in Australia was inherited from the United Kingdom after colonisation. The use of precedent interpreted by judges has allowed for the regulation of the freedom of individual citizens and protecting against excessive government power. Australia, unlike most countries with common law, does not have a statutory or constitutional charter or bill of rights. Common law has the power to protect human rights through a long established rule of law, and while the possibility for change to common law by legislation exists, this is a rare occurrence. Common law is distinguished from laws made by the legislature in that it is "judge-made", and is the common interpretation of law through precedent. For example, a court is obliged to refuse a trial if it is deemed unfair within the principles of common law.
Methods of Protecting Rights – USA
After the American Revolution of 1776, the newly founded creators of the democratic experiment drafted a document that would serve to be the world's first true document of explicit, entrenched civil liberties and asserted the people's right to freedom from tyranny under the crown. It stated:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its Powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
The constitution puts into place a number of entrenched human rights, such as freedom of speech, freedom of assembly, freedom of religion, the right to bear arms, freedom from cruel punishment and the right to a fair trial by jury. Amendments to the constitution have allowed for the US government to improve or alter human rights as society evolved. The first 10 of these amendments became known as the Bill of Rights. The Bill of Rights forbids Congress from making any law respecting the establishment of religion and prohibits the federal government from depriving any person of life, liberty or property without due process. In criminal cases it requires indictment by an impartial jury in the district in which the crime occurred. Despite these entrenched rights, acts such as the 1964 Civil Rights Act were created by congress to improve individual rights that were not explicitly stated within the constitution. The Civil Rights Act ended discrimination based on race, religion or sex. It ended any racial segregation in schools, at the workplace and in any public serving facilities.
The US state department is required by law to produce multiple reports on the state of human rights per year, some being the Country Reports on Human Rights Practices, an assessment of human rights situations in countries around the world, Supporting Human Rights and Democracy, a report of what the U.S. government has done regarding any potential violations in the country report, International Religious Freedom Report, an examination of the degree to which people hold the freedom to practice their religion and Trafficking in Persons Report, a survey of human trafficking rates. These reports are then delivered to congress and provided to the public and press.
Protection of Rights – Australia
Australia has maintained a record of protecting human rights through its many well-functioning and fair institutions that keep the nation free from corruption and abuse of power. However, the government has failed to address the lack of respect towards the human rights of asylum seekers and the marginalised indigenous communities. Mandatory detention and offshore processing have been some of the numerous ways Australia has neglected the international standards of human rights.
Australian offshore detention in countries such has Nauru have been criticised for the endangerment of refugee lives and outsourcing its obligations to poorer countries. Boats travelling to Australia from Indonesia have often been turned back, sending asylum seekers back to the country they fled. In June 2015, Australian officials were accused as to have paid $40,000 to the crew of an asylum seeker ship to return to Indonesia. The government refused to confirm or deny if the payments had taken place. Not a single refugee has been resettled after the government began using Papua New Guinea as an offshore detention centre. A report on the conditions in the Nauru offshore detention centre found that there had been cases of sexual assault, with 33 refugees coming out to claim they had been raped or assaulted at the centre. The report stated that conditions were not "adequate, appropriate or safe" for children and that prolonged detention was having severe mental effects on their upbringing. Australian parliament, through the passing of the Australian Border Force Act, made it a crime punishable by 2 years imprisonment to disclose any information given during the time working for border protection involved in offshore detention and turning back boats.
Indigenous Australians still face numerous disadvantages in their community. Aboriginal and Torres Strait Islanders live 10 years less than white Australians and die more often from preventable diseases such as diabetes. Aboriginal men and woman also continue to be disproportionally represented in the prison system, and serious human rights violations have been revealed in juvenile detention systems towards Aboriginal youth, in which they represent over half of all children in juvenile detention. Children have been reported to have been subjected to cramped isolation for weeks at a time, and staff have often used excessive and violent force, such as tear gas.
Protection of Rights – USA
The US has strong constitutional laws that safeguards the civil and political rights of its citizens. However, in practice many international human rights are violated by the US government. Immigrants, ethnic minorities, prisoners and low earners are most likely to suffer the effects of these violations.
The US has the highest incarcerated population in the world. With 2.37 million people locked up in prison and 12 million people annually cycling through the prison system, concerns about overcrowding and excessive sentences have led to calls for reform, but none so far have passed US Congress. The death penalty remains law in 31 US states, with 16 executions having been carried out at the time of writing in 2017. Investigations into the use of solitary confinement have also become increasingly numerous, as congress has recently prepared to vote on a bill that would limit the time during which a prisoner could be held in isolation, and would ban solitary confinement for people in a vulnerable mental or physical state.
Prison staff have been reported to use excessive and malicious force against prisoners, especially those with mental disabilities. A 2015 Human Rights Watch report stated that the problem is widespread in the US and has been on an upwards trend throughout the nation's prisons. Poor defendants are often subjected to excessive and unnecessary pretrial imprisonment due to not being able to pay bail. An example of the damages of this system manifested with Kalief Browder, who committed suicide in June 2015, after being released from three years in pretrial solitary confinement because he could not afford to pay $3,000 in bail. This event sparked calls for US state governments to reform pretrial detention. Criticism towards the use of bail as a money-making tool for local governments was renewed after the Justice Department's report on Ferguson, which stated the local judicial system was used as little more than a money-generating machine targeting the African-American community.
Racial discrimination continues to exist in the US judiciary, most notably towards African Americans. For example, while whites and African Americans commit drug-related crimes at a similar rate, the rate of prosecution and arrests for African Americans is much higher. Black men are imprisoned at six times the rate of white men, and suffer from a disproportionately high rate of deaths by police. The Justice Department's report on the judicial system in Ferguson, commissioned after the widely publicised shooting of African American teenager Michael Brown by police, found that African Americans were disproportionately impacted at all levels of the justice system throughout the entire country. The US government does not keep a numbered account of people killed by police every year. Statistics released in 2015 shows that annually, only 35 to 50 percent of police-related killings are recorded, however a new federal law has encouraged states to collect data regarding deaths in police custody, but states are currently not required to provide the data.
In the US, children are prosecuted in and sentenced to adult terms within the court system. 14 states do not have a minimum age for prosecution. Some states automatically prosecute children age 14 and above as adults. Tens of thousands of under 18's are being held in adult prisons across the US, and it remains to be the only country that will sentence youth under 18 to life without parole. New laws have been introduced to end the automatic transfer of children to adult court.
Conclusion
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