Get free samples written by our Top-Notch subject experts for taking online assignment help services in Australia.
Any act or any provision at any stage can be declared as unconstitutional by the legislature or any government official if they have violated provision of constitution that is why constitution works as the guideline to the enactment of an act. So when ever a act has been passed by the government of whenever the act or law is to be made by the government then it has to consider guideline provided in constitution. In some of the countries when the law has been structured by the legislature and there shall be no provision to declare laws unconstitutional because some of the countries has uncodified law. There are certain actions in which power shall be entitled as unconstitutional for an example if any of the political authority working out of the frame of political or constitutional power then his actions shall be entitled as unconstitutional because he in not working on the power given to him.
There are various acts which are yet to be decided as constitutional or unconstitutional of which one of the act is Racial Discrimination Act
Racial discrimination is when the person is being discriminated on the basis of their skin color compare to people with fair color(Holub, Vantomme, Lehn, 2016). Racial discrimination has been considered as very serious kind of offence as according to the constitution of America, everyone has a right to treat equally in the society and by the operation of Racial Discrimination people are discriminated on the basis of their color. There are people who treat unfairly to other who are not equal or because of color. In such kind of discrimination people are nit treat others on an equal bases by which unfavourable condition shall appear. When is person is being discriminated on the basis of their color caste etc then there are certain rights to be infringed which is why government has implemented certain regulation so that a proper protection shall be awarded to all those people who are being discriminated on the basis of race. Discrimination could take place at anytime at anywhere and that is why an act called Racial Discrimination act 1975 has been implemented by gobvernment so that the right of a person shall get protected. This act is considered as statute by Australian Parliament during Prime Ministership of Gouh Whitlam the provision of racial discrimination act is extended to all over country and jusridiction is available on same(Sutton, 2016).
The act is administered by the Australian Human Rights and Commission. A president has been appointed in the commission who will look after all the complains which get registered on the context of racial discrimination. Id the commission finds that the complain being registered is valid and commission shall took steps to entertain the complain. No negotiation shall be done on the part of commission for the agreement of complain. The work of commission is that they will look for the complain and investigate whether the allegation put for racial discrimination are true or not. if the allegation are true then necessary steps shall be taken by the commission so that practice of racial discrimination will be diminished(Harris, Roa-García, 2013). The complains of racial discrimination only redress through the federal court or through the federal circuit court. The main motive of the commission is to established awareness regarding various kinds of rights and duties arising with racial discrimination.
According to the Section 51(xxix) of Australian constitution the power to pass racial discrimination act is given under the power of external affairs. Fedral parliament has also implemented international obligation for Racial discrimination under the 1956 international convention on the Elimination of all Forms of Racial Discrimination. So it can be easily concluded from the above discussion that the purpose of establishing Racial discrimination act is to provide protection to the people who are discriminated on the basis of their color, race etc. the area which has been covered by racial discrimination act are:-
Section 15-b it states that when ever a person has been employment in a organisation then he shall not be discriminated on the basis of his colcor, race etc. He is also entitled to have equal pay for equal work that is he shall b entitled for equal payment of income and on the other hand every person b has the right to get full training, promotion etc. no person in an organisation shall be treated less fairly(Levinson, Blake, 2016).
Section 12- no person shall be discriminated on the basis of buying any house or land that is when ever a person is planning to have an accommodation then he is also entitled to access all housing and land. No discrimination shall take place there.
Section 13- no person shall be discriminated on the basis of buying food, clothing accessing to any facility of bank etc.
Section 11- it is very important section as it will describe that no person shall be discriminated for facilitating public facility that is all the person shall possess equal right to access facilities provided to public for an example facility of toilets, public booth etc.
Section 14- it stated that all those person who are involved in business organisation and want to join trade union shall not be discriminated that is every person shall possess the right to join trade unions(Marshall, 2012).
All the section have covered almost all the part in which the person shall not be discriminated but in one provision certain clashes are arriving for an example in context to section 18c of Racial discrimination.
There are many legal academics which have suggested that section 18C of racial discrimination act can be held unconstitutional because it is inconsistent with the constitutional implied freedom of political communication.
The concept of freedom of political communication was established in 1992 with 2 cases that is Nation News Rty Ltd v Wills and Australian Capital Television Pty Ltd v commonwealth. Both the cases were concerned with validation of federal legislation.
Section 18c of Racial Discrimination act provides prohibition on offence, insult, humiliation or intimidation that is according to the application of Racial Discrimination act section 18C person shall be held liable if he has conducted any act which will likely to offend or insult any person and such act has been committed on the basis of their color, race etc. then the person shall be held liable for conducting discrimination. On the account of racial discrimination act if any person do any such act that then complain shall be filled against him(De Burca, 2013). Such complain shall be filled under commission and then they will investigate the complain. If the commission finds that the complain is valid and true then a serious action shall be taken against the person who has committed discrimination. There are various case laws which are registered on the basis of section 18C of racial discrimination act.
For an example it has been seen in the case of Rugema v Gadsten Ptv Ltd & Derkers HREOCA 23 that a racial discrimination occur t9o former African Refugee. It was further held in this case that the person has been discriminated on the basis of his color by awarding him abuse. In this case 55,000 dollar was awarded to the plaintiff who has suffered from racial discrimination according to racial discrimination act(Roznai, 2013).
Further it is provided in this act that a person possess aright to make a complain against the contravention of racial discrimination act to Australian Human Rights Commission. If the complain is not entertained by the comission itself then the person shall be held liable for conduction discrimination as not entertaining the complain shall be entitles as conducting discrimination(Wolff, 2013).
Section 18c of racial discrimination act is always a subject matter of controversies regarding the recognition of it through constitution. It has been said by many authors and law makers that due to the inconsistency of Section 18C of racial discrimination act it shall not be recognised by constitution. Various views has been given on this topic which has suggested due to lack or loopholes in this section, then person cannot exercise it properly and there is inconsistency. There are many argument held ion the establishment of section 18C that it does not provide any kind of clarity as well as the provision which is being described under this section are not sufficient by which the person is not able to seek remedies with the application of racial discrimination. There is also unjustifiable interference regarding freedom of speech as the word 'offend' has been use which comply that a person can be offended on any speech by which restriction is imposed to right established by constitution that is right to freedom of speech and expression. It has been seen that in 2006 the president of human rights and commission tend to support changes brought regarding section 18C of the constitution. He proposed that the words like 'offend' and 'insult' will be removed from the section so that the restriction imposed upon freedom of speech and expression will be open and strength shall be provided to law(Vermeule, 2012). But further President of human right and commission further remarked tat if any step has been taken by which the power of section 18C became less then such step will be considered as retro-gate step. This section shall be strengthen and clarified.
For an example it has been seen in the above case that Drew Faster is a person to whom an allegation is established regarding violation of section 18c of racial discrimination act. In this case it was seen that Drew claimed that an individual has taken to adopt racial identity in order to receive the benefits of a particular government welfare. She has made claim that a person or an individual of a particular community has created benefits and she further claimed that's these community has shown lack of contribution towards American society.
Further in the allegation against the lady it has been found that she made a statement in which she called all race to particular refugees and immigration as their descendants became involved in crime(Hirschl, 2013). It has been seen in this case that section 18C of racial discrimination act has been infringed by Drew as she made particular statement regarding the racial discrimination. It has been observed in this case that at first instance drew made an statement regarding certain individual mentioning that the individual is getting benefits from a particular government welfare and that person is race. According to the section 18c of the act it is very clear that no person shall have the right to state any such statement which will put the other person feel offended or insult in terms of race discrimination that is no comment or statement shall be passed by a certain person in context to anybody color, caste, religion, or sex which will insult him or make him feel offended in from if other or in public(BugariÄ, Ginsburg, 2016). If any person does so then he shall be held liable for the commitment of racial discrimination. According to the act racial discrimination will be totally prohibited by the application of provision but it has been seen that constitutionality of this section is challenged. It has been seen that, several challenge has occurred which states that Section 18C of the Racial Discrimination act is incapable as it shall include word like incapable or offended. It has been said that the section is constitution regarding the implied freedom of political communications as several exception are made regarding it in section 18C. The constitutionality of the provision is being challenged because there are situation in which a person can feel insult or offended and in real such situation or with the application of certain rules it may appear that in real that situation will not amount to insult or offended(Skoll, orstanje, 2013). That is why several exceptions are being made for section 18C.
Section 18D discuss about the exemptions of 18c which states that a person shall be held liable if he discriminated an individual or a group on the basis of race by mentioning statement of insult.
The exemption to the section are:-
sub clause (a) of section 18D states that no person shall be held liable for the act done in good faith that is if the person has mad any kinds of offended statement in context to race and such statement has been made in general good faith then the person shall not be held liable for conducting any kinds of racial discrimination. For the availability of this sub clause, it is very important that the person must act in good faith that is the person while making any such statement act in good faith. According to law good faith can be described as when the person is working with honesty of shall possess the behaviours of sincerity. Generally government officials are required to act in good faith.
Sub clause of section 18d states that no person shall be held liable for conducting any kind of racial discrimination if such act has been conducted for the performance of an artistic work. Any person shall not be held liable with the execution of section 18c if the person is working for the distribution of artistic work or for the distribution of artistic work and all this woek must be carried out in good faith(Vermeule, 2012). If the work is not being carried out in good faith then the person shall be held liable for conducting racial discrimination against the person.
Sub clause (b) of section 18d states that if there is any kin d of debate, publication, discussion, has been held in context to any artistic or scientific purpose or any other kind of purpose which is in public interest then the person shall be held not be liable for conducting any kind of racial discrimination. For the application this clause it is very necessary that he discussion which is to be carried out by an individual or a group must be on some artistic work or must be carried out on any scientific matter and such discussion shall be done in good faith. It is very necessary for the application of the exemption of section 18D that the person must act in good faith. If the person shall not be able to work in good faith then he shall be entitled for the commitment of racial discrimination(Hardin, 2013).
Sub clause (c) of section 18d states that when a a person or a group has published anything which shall contain actual fact or truth then such person shall not be held liable for any kind of racial discrimination. It is very necessary for the application of this sub clause that the publication done by a person or an individual must have true facts if the report is published on false fact then the person shall be held liable for the commitment of racial discrimination.
The section to exemption further explained that if any comment has been made by an individual or a group which will contain an expression of genuine belief by the person making the comment(Finer, Fine, 2013). If such made is not of genuine belief then the person shall be held liable for the commitment of racial discrimination.
Hence it can bee seen that the section 18c of the racial Discrimination act is constitutionally valid as the exemption is being clearly mention in section 18D.
It can be concluded from the above project that constitution plays a very important role for the country as there are many provision which are recognized by constitution. It is very important for every provision to be constitutionally valid. If the act or the provision shall be not be established constitutionally valid then no rights and duties can arise on that. It has been further explained in this project about the constitutionality of section 18C of racial discrimination act. It has seen from the discussion that section 18C is constitutionally valid as exemption are mentioned in 18D of racial discrimination act.
Books and Journals
BugariÄ, B. and Ginsburg, T., 2016. The Assault on Postcommunist Courts. Journal of Democracy, 27(3), pp.69-82.
De Burca, G., 2013. After the EU Charter of Fundamental Rights: The Court of Justice as a human rights adjudicator?. Forthcoming, Maastricht Journal of European and Comparative Law, 20, pp.13-51.
Epstein, L. and Walk, T.G., 2012. Constitutional Law: Rights. Sage.
Finer, L. and Fine, J.B., 2013. Abortion law around the world: progress and pushback. American journal of public health, 103(4), pp.585-589.
Ginsburg, T. and Melton, J., 2015. Does the constitutional amendment rule matter at all? Amendment cultures and the challenges of measuring amendment difficulty. International Journal of Constitutional Law, 13(3), pp.686-713.
Hardin, R., 2013. Why a constitution. Social and political foundations of constitutions, pp.51-72.
Harris, L.M. and Roa-García, M.C., 2013. Recent waves of water governance: Constitutional reform and resistance to neoliberalization in Latin America (19902012). Geoforum, 50, pp.20-30.
Hirschl, R., 2013. From comparative constitutional law to comparative constitutional studies. International Journal of Constitutional Law, 11(1), pp.1-12.
Holub, J., Vantomme, G. and Lehn, J.M., 2016. Training a Constitutional Dynamic Network for Effector Recognition: Storage, Recall, and Erasing of Information. Journal of the American Chemical Society, 138(36), pp.11783-11791.
Hughey, M.W. ed., 2016. New tribalisms: the resurgence of race and ethnicity. Springer.
Levinson, S. and Blake, W.D., 2016. When Americans Think About Constitutional Reform: Some Data and Reflections. Ohio St. LJ, 77, p.211.
Marshall, W.P., 2012. National Healthcare and American Constitutional Culture. Harv. JL & Pub. Pol'y, 35, p.131.
Mason, A.T. and Stephenson, G., 2015. American constitutional law: introductory essays and selected cases. Routledge.
Roznai, Y., 2013. Unconstitutional Constitutional AmendmentsThe Migration and Success of a Constitutional Idea. American Journal of Comparative Law, 61(3), pp.657-719.
Sadurski, W., 2014. Judicial Review and Protection of Constitutional Rights. In Rights Before Courts (pp. 145-166). Springer Netherlands.
Schwartz, B., 2013. American constitutional law. Cambridge University Press.
Skoll, G.R. and Korstanje, M.E., 2013. Constructing an American fear culture from red scares to terrorism. International Journal of Human Rights and Constitutional Studies, 1(4), pp.341-364.
Sutton, J.S., 2016. State Constitutions in the United States Federal System. Ohio St. LJ, 77, p.195.
Vermeule, A., 2012. Precautionary principles in constitutional law. Journal of legal analysis, 4(1), pp.181-222.
Vermeule, A., 2012. The atrophy of constitutional powers. Oxford Journal of Legal Studies, 32(3), pp.421-444.
Wolff, S., 2013. Conflict management in divided societies: The many uses of territorial self-governance. International Journal on Minority and Group Rights, 20(1), pp.27-50.
Farlex, inc. 2003-2016. [Online]. Available through. http://legal-dictionary.thefreedictionary.com/constitutional+law. Accessed on 29th December 2016.
WebFinance Inc. 2016. [Online]. Available through. http://www.businessdictionary.com/definition/constitution-law.html. Accessed on 29th December 2016.
Thomson Reuters. 2016. [Online]. Available through. http://hirealawyer.findlaw.com/choosing-the-right-lawyer/constitutional-law.html. Accessed on 29th December 2016.