Sample Report On Constitutional Law by Expert Writers

Sample Report
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Table of Contents
INTRODUCTION ...........................................................................................................................3
QUESTION 1...................................................................................................................................3
Constitutionality of section 18c of racial discrimination act ......................................................3
CONCLUSION ..............................................................................................................................10
REFERENCES ..............................................................................................................................11
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INTRODUCTION
Constitution is considered as one of the important element of country. There are various
rights and duties of an individual as well as of the authoritative parties which are governed by
constitution. Set of fundamental rights and principle which are established according to state and
providing benefits to the same are included in constitution. There are various kinds of rights and
authoritative duties explained in the constitution. its is concluded as a comprehensive kind of
document of a country which will consist of all the information related to legal principle of the
country(Schwartz, 2013). A written constitution of a state or the country shall provide specific
power to organisation or any institutional entity established upon primary conditions. Laws also
include act of a state and there are certain provision of acts which shall be governed by
constitution. It is very important for a provision to be recognized by constitution so that it should
be legally established. The following project shall highlight about legality of provision provided
for racial discrimination in constitution. The aim of the project is to develop a better
understanding about constitution.
QUESTION 1
Constitutionality of section 18c of racial discrimination act
A constitution can be referred as the set of principle and duties and there are fundamental
rights mentionable in constitution which shall be granted to an individual inheriting in a
particular country(Mason, Stephenson, 2015). Establishment of a constitution in state is very
important because it will provide certain important rights and duties to the citizen as well as to
the authoritative party. There are many state where uncodified constitution is established where
as in the other countries codified constitution is present. If constitution provide rights then there
are certain limitation also which has been set by the constitution. A constitution shall be formed
in 2 ways that is codified and uncodified law
a codification can be referred as single document or a single document which shall be referred as
the source of law to various other acts.
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Codified constitution- there are many countries which establish codified constitution for an
example country like India is a codified law, it is considered as the supremacy of the law. A
codifies constitution can be refereed as to drafted constitution written in a single document. The
information in a codified constitution is always gathered from single form of
document(Epstein, Walk, 2012). There are many principles which has been described in are
impossible to abolished that is whatever situation is there no person or no authority shall have the
power to abolish certain principle of constitution that is every situation provision driving out of
constitution shall be valid.
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Uncodifies constitution- there are only 2 states present which has the uncodified constitution that
is New Zealand and UK. An uncodified constitution is basically a sum up of the conventions and
the treaties which are made between the countries. It is very important to involve these
conventions and treaties so that a new principle shall be established in the making of a uncodifird
constitution.
A constitution is very important for the country because it works as the power governing
regulation that is most of the authoritative body or most of the acts are recognized by
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constitution(Hughey, 2016). A procedure of appointing someone on the authoritative post is
also described in constitution as well as the power of that authority is also given by constitution.
For an example it has been seen that for the regulation of several rules and regulation there are
mainly three kinds of bodies which has been set. Executive body which will work for the
execution of any kind of law. Legislative boy which will help the country or the government in
making of certain laws that is it work as a law making body for any constitution and third is the
judiciary which will work for any kind of infringement of law. Constitution is the body which
will divide power amongst three bodies equally. It is very important to give powers so that the
function shall be carried out by these bodies. There are some constitution which will include
branch to govern powers such as auditory branch. Constitution also allows appointment of higher
authorities also like president of the country, all the duties of president are also explained in
constitutional. There is one more provision which is very important for any country that is
establishment of a emergency(Sadurski, 2014). many constitution allows declaration of
emergency under certain situation. When an emergency has been imposed by the application of
constitution then the rights of a person shall get restricted that is whenever a emergency is
applied, suspension of rights occur and no person shall be able to exercise their constitutional
rights or human rights.
One more concept which is attached with constitution is constitutionality of any provision.
Constitutionality can be described as the condition or the situation in which provision are
applicable I accordance to constitution. That is while a provision has been applied in the country,
a certain procedure has been given if that procedure is not followed by the act then such
provision shall not be recognized constitutionally. Whenever any laws, procedure or any kinds of
act in establishment violates any provision of constitution then it shall be entitled as
unconstitutional(Ginsburg, Melton, 2015).
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
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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.
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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
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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
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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.
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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.
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For an example it has been seen in the case of Rugema v Gadsten Ptv Ltd & Derkers
[1997]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).
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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
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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(Bugarič, 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:-
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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.
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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.
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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.
CONCLUSION
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
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act. It has seen from the discussion that section 18C is constitutionally valid as exemption are
mentioned in 18D of racial discrimination act.
REFERENCES
Books and Journals
Bugarič, 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
(1990–2012). 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.
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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 Amendments—The 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.
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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.
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