Australian Law/Bill of Rights

It has been long debated from the earliest time of Federation of Australia whether Australia needs a Bill or Charter of Rights. Proposals have been put forward in 1944 (by Labor Attorney General H. V. Evatt, defeated at referendum by a 53.3% no vote), 1973 (under Gough Whitlam, the Human Rights Bill 1973 was put forward but was blocked and ignored by State governments) and 1988 (under the Hawke Government, from the Constitutional Commission’s recommendation of a Constitution amendment to allow for a Bill of rights, which was then defeated in every Sate at the national level) all of which have been unsuccessful.

In order for a Bill of Rights to become effective in the Australian legal system, it must be enacted into the Australian Constitution, passed into the Federal Legislative Assembly or be implemented through the State Legislative Assembly. The latter of the three options would only create a statewide Bill of Rights as opposed to a nationwide Bill of Rights, however, for some this may be favourable. The other two options would require a referendum to amend the Australian Constitution or a Bill to be put forward.

It is more pragmatic for a Bill of Human Rights to be passed through Federal Parliament as this would enable the Bill to be easily amended, as society’s views progress and change, the Bill could reflect these values. While, advocates for an Australian Bill of Rights believe that this would restrict the Bill’s significance and they believe it should a judicial matter (that is, a Constitutional matter) rather than a Legislative matter. If an amendment of the Australian Constitution was to be made, this is possible if a referendum (through the mode of altering the Constitution clause outlined in Section 128) but must be passed by an absolute majority of each House of the Parliament and the electors qualified to vote for the election of members of the House of Representatives, that is, the voters. The Court does, however, have the ability to change the application of the written text, that is the interpretation and decisions of the High Court, nevertheless, a referendum would be required to add to the Constitution. This would be a difficult task as since 1906 there have been only eight successful referendums changing the Constitution, from nineteen referendum proposals.

The Australian Capital Territory (with the Human Rights Act 2004 (ACT)) and Victoria (with the Charter of Human Rights and Responsibilities Act 2006 (VIC)) are the only Australian States or Territories to enact a Bill of Rights. On the federal level, an Australian Bill of Rights has been described as, ‘totemic symbolism’ and this idea is fair in some respects as Australia has ratified seven of the eight major international human rights treaties. Therefore, there is a clear contention whether Australia should have an international Bill of Rights and this is shown through the 1997 survey where 54% of those surveyed believed that Australia’s human rights were not adequately protected and 72% believed that there should be some form of Australian Bill of Rights. This provides reasoning why the Australian Capital Territory’s and Victoria’s Bills of Rights were successful.

A major criticism of Bills of Rights is the lack of defined responsibilities, however, the Victorian Charter ingeniously addresses that issue but does not go as in-depth as some would prefer. For instance, responsibilities such as; obeying Australian laws; enrolling in Federal and State/Territorial elections; voting in said elections; serving on a jury, if called to do so; and defending Australia, should the need arise are all responsibilities that must be addressed. If these were to be entered into the Constitution and society’s values changed, it would be very difficult to change, as it would require a nationwide referendum. On the other hand, there are limitations to the amount of the rights used in the Constitution. For example, living in Australia indefinitely; voting to help elect Australia’s governments; nominating for election to Parliament; applying for a job in the defence forces or working for the Government; applying for an Australian passport; leaving and re-entering Australia without a return visa; seeking assistance from Australia’s diplomatic representatives while overseas; and registering children born overseas as Australian citizens by descent are all Australian rights, nevertheless, they do start to address human rights issues. This is another concern many opposed to an Australian Bill of Rights would be too rigid and would not be progressive in reflecting changing society’s views. While, others say if Australia were to implement a Bill of Rights, it would further satisfy the elements of the rule of law. A Bill of Rights would make Australians’ rights become more known. It would allow for greater respect, that is free from bias, for the rights and dignity of individuals. Some people argue that an Australian Bill of Rights would be superfluous as they believe that Common and Statue Law protect Australians’ rights. The most obvious example of this is outlined in Section 51 of the Australian Constitution, stating ‘the Parliament, subject to this Constitution, has the power to make laws for the peace, order, and good government of the Commonwealth’. Albeit brief, this statement establishes voting procedures and the separation of powers providing the concept for transparent government without interference. These two elements are paramount in addressing human rights issues and are effectively dealt with thus supporting the concept of an Australian Bill of Rights being superfluous.

Conversely, learned juristic scholars such as Former Chief Justice Sir Anthony Mason, believe that “Australia’s adoption of a Bill of Rights would bring Australia in from the cold and make directly applicable the human rights jurisprudence which has developed internationally and elsewhere,” He says that “it is an important consideration in that our isolation from that jurisprudence means that we [Australians] do not have what is a vital component of other constitutional and legal systems, a component which has a significant impact on culture and thought, and is an important ingredient in the emerging world order that is reducing the effective choices open to the nation state,” He argues that not only would this allow for one coherent and simple resource enabling Australians to clearly identify their rights, it would also protect the interests of minority groups more effectively than the democratic process does. In that regard, it is clear that Australia could benefit from a Bill of Rights making it easier for Australians to interpret and help protect the rights of under-represented Australians.

Australia is considered to be archaic as it is the only Western democratic country with neither a constitutional nor federal legislative Bill of Rights, however, through constitutional and legislative protections of rights, there is little need for a Bill of Rights. The Constitution expresses various human rights, for example, Section 116 prohibiting the enactment of federal laws limiting the free exercise of religion and Section 51 (xxxi) requiring the expropriation of property on just terms, that is, compensation. There are also implied constitutional guarantees derived from cases such as the Australia Capital Television Pty Ltd v Commonwealth 1992, where the High Court invalided the Political Broadcast and Political Disclosures Act 1991, which sought to limit political advertising on redo and television during elections on the basis that the freedom of political communication could be implied from Section 7 and 24 of the Constitution. There are also many legislative protections of rights, for example, the Racial Discrimination Act 1975 or the Aboriginal and Torres Strait Islander (Queensland Discriminatory Laws) Act 1975. Even though Australia may be considered archaic, human rights are explicitly addressed throughout law and its reform.

The Australian legal system, as previously outlined, can implement a Bill of Rights on a national level either through State Legislation or through the Australian Constitution. It can also implement a State Bill of Rights, as Victoria and the Australian Capital Territory have done, through State Parliament. The national implementation through Federal Parliament would be highly effective as it would enable law reform post-enactment. Whereas, implementing an Australian Bill of Rights = through the Constitution would not be as effective as law reform would be much more difficult, as there would be a need for a nationwide referendum, which does not reflect Australia’s ever-changing values. Thus far, the referendum proposals have been unsuccessful.

The failed referendum proposals have been demonstrative that the Australian population does in fact not want an Australian Bill of Rights. Australia’s current legal system is very fair in that regard, requiring all Australians to vote to amend the Constitution: a telltale sign of a working democracy. The conflict between those for and those against a Bill of Rights has been repeatedly resolved, however, as the issue is sill debated, obviously not well enough. Nevertheless, the legal system has been continuously responding to change and continually reflecting society’s views. For the moment, a Bill of Rights is not demanded by the Australian population and from a few unsuccessful referendums, this ideology may continue until society’s views change, which will require law reform.

Most democratic countries have a Bill of Rights but their effectiveness differs from country-to-country. For instance, Canada with its Charter of Rights has seen improvement bettering the rights of Canadian indigenous peoples, the right to use either of Canada’s official languages and the right of French and English linguistic minorities to an education in their language. It is said to have had a major impact on the promotion and protection of human rights in Canada. With respect to language rights, it has reinforced the rights of official-language minorities and with regard to equality rights, it has led to the recognition and enforcement of the rights of a number minority groups. Unlike Canada’s Charter of Rights, the New Zealand Bill of Rights enacted in 1990 does not override other legislation and is an ordinary statute. It is therefore not a part of New Zealand’s Constitution. The most effective Bill of Rights is the South African Bill, introduced after the fall of the apartheid regime. Its Bill of Rights is an extensive Bill incorporated into the South African Constitution, which is said to be the cornerstone of democracy in South Africa, enshrining the rights of all people in South Africa and affirming the democratic values of human dignity, equality and freedom.

One of the least effective Bills of Rights in reflecting society’s changing views is the United States Bill of Rights. The United States Bill of Rights is so pivotal to Americans that it has become a cornerstone for the American life, however, the Second Amendment (the right of the people to keep and bear arms) does not reflect current society’s views and is reflective of the period in which it was established. This right has enabled mass school shootings, gun violence and gun related crimes, of which are not as prevalent in countries where this right is not applicable.

An Australian Bill of Rights would be beneficial in protecting Australians’ rights, especially those Australians who fall under minority groups. Nonetheless, said Bill would also be difficult to reform and amend post-enactment in the Constitution, thus it would not progressively convey Australians changing values. For Australia to be brought into contemporary society, there would need to have a nationwide referendum, of which is highly expensive and due to previous attempts, would likely be unsuccessful. There are obvious benefits for a Bill of Rights, such as succinctness, protection for people’s unassailable rights (freedom of speech, movement, religion and juridical powers) and would strength Australia’s relationship with the United Nations, heeding their advice to implement said Bill. However, there are also clear detriments including the superfluousness for one as all relevant human rights are covered in the Constitution, through Federal and State Acts of Parliament and through common law, designated commissions are already established to monitor and promote human rights protection (i.e. Australian Rights Commission), it would hinder Australia’s ability to evolve and reform based on society’s changing values as they are difficult to amend (requiring a referendum), it would transfer power from democratically elected politicians to undemocratically elected judges and bureaucrats and there may be instances where people’s perceptions of rights change (for example, in wartime) and this rapid shift in perspective would not be represented in a Bill of Rights.