Legal Studies

• The Australian Constitution drafted in the 1890s did not seek to establish the Constitution as a catalyst for the protection of civil liberties
• The Constitution enabled the federal parliament to make laws with respect to 'The people of any race, other than the aboriginal race in any state, for whom it is deemed necessary to make special laws'
• Section 51(xxvi) of the Constitution, the 'races power', was inserted to allow the Commonwealth to take away the liberty and rights of sections of the community on account of their race
• The framers rejected a provision requiring 'equal protection of the laws' that could have prevented discrimination on the basis of race
• The drafting of the Constitution laid the foundations for many subsequent human rights violations
• Without a Bill of Rights, many of our basic freedoms, possibly even including the right to vote of some sections of the community, can be taken away by federal, state and territory parliaments
• One of the first pieces of legislation passed by the new Commonwealth Parliament was the Immigration Restriction Act 1901, which implemented the White Australia policy
• Australia is alone in not having developed a statement setting out our basic rights and freedoms, unlike other common law nations like Canada, New Zealand and the United Kingdom
• The High Court has found that certain rights can be implied from the Constitution, but there are real and important limits to what judges can achieve
• Parliaments must assert their leadership in developing the rights attaching to Australian citizenship
• Bill of Rights


  A statement setting out the core rights of the Australian people, which would enhance Australian democracy and promote a sense of community involvement
• Bill of Rights


  A guarantee of certain basic human rights to the individual
• The omission of a Bill of Rights from the Australian Constitution was not an accident
• A Bill of Rights was proposed and debated at the Constitutional Conventions that led to the drafting of the Australian Constitution, but its inclusion was defeated
• Several attempts have been made since then to amend the Constitution to include a Bill of Rights, but they have been rejected
• In 1988, referendums on human rights provisions that would bind the Commonwealth and the States were held, but they attracted only a 30% "Yes" vote, the lowest in any Commonwealth referendum
• The current debate over a Bill of Rights is occurring in the context of the impending celebration of the centenary of Australia's existing Constitution in 1901
• At the Constitutional Centenary Conference of 1991, there was strong support for a guarantee of basic rights in some form, entrenching basic rights and especially democratic basic rights
• Common law


  Judge-made law and judge-developed law, including the interpretation of statute law and constitutional provisions by the judiciary
• The common law has protected civil and political rights in four main ways
• Ways the common law has protected civil and political rights


  • Recognising and protecting a number of rights and freedoms seen as fundamental
  • Developing rules of statutory construction to limit legislative encroachment on rights and freedoms
  • The High Court giving new life to express guarantees in the Constitution
  • Suggesting limitations on legislative competence to contravene fundamental rights in the "peace, order and good government" formulae or implications from the structure of the Constitution and the free and democratic nature of Australian society
• Sir Harry Gibbs, former Chief Justice of the High Court: '"In Australia there seems to be no reason to fear such gross violations of human rights as those which regularly occur in some other countries. . . . The common law has proved to be a flexible and effective instrument for the protection of freedom and the mitigation of injustices that might otherwise be brought about by ill-considered legislation."'
• Arguments against a Bill of Rights in Australia


  • It would confer too much power on the courts, especially the High Court
  • Existing constitutional protections are sufficient
  • Many rights may be left out, and those left out may be perceived as less valuable and more susceptible to extinction
  • Rights and freedoms tend to be stated in very general terms, leading to widely differing interpretations based on the political philosophy or values of the interpreting judge
  • Broad powers given to courts to decide issues involving social policy may result in uncertainty and injustice, as the results may differ according to the social or political philosophy of the judges
  • An active judicial role in relation to a Bill of Rights is seen as an affront to "Parliamentary sovereignty" and the inherently democratic nature of the Parliamentary system, as judges are not elected, representative, or sufficiently accountable
• Australia is now outside the mainstream of legal development in English-speaking countries, particularly those most comparable in their political and legal systems, including New Zealand and Canada, by not having a Bill of Rights
• The United Kingdom, while lacking a domestic Bill of Rights, has the possibility and increasingly the fact of recourse to the European Court of Human Rights, which has not regarded the common law as protecting human rights adequately
• There has been very little sustained thought or research devoted to the detailed nature and content of a Bill of Rights in Australia
• In the debates regarding the Australian Constitution in the lead-up to the Centenary of Federation in 2001, the question of whether there should be a Bill of Rights does not seem high on the national agenda, despite opinion polls, due to the current level of controversy regarding the extent of the judicial power and criticism of the Commonwealth's external affairs power
• Issues of human rights tend to be debated in a context where the real questions are sometimes obscured by economic, racial, and other issues, leading to those promoting the cause of fundamental rights being referred to as "bleeding hearts" and "do-gooders"
• The guidance provided by a Bill of Rights would be one way of both assisting the courts and re-asserting the supremacy of Parliament, while acknowledging that the courts will become more involved in the weighing of competing considerations, including those of a policy nature, in the interpretation and application of a Bill of Rights
• Bill of Rights


  A document that clarifies the rights held by all individuals in a country
• Current system in Australia

  • Not effective enough in protecting human rights
  • Significant flaws remain in the government's approach to protecting human rights
• Domestic and international mechanisms in Australia

  • Promote the maintenance of human rights
  • But a clear and unifying codification of rights is lacking
• Statutory Bill of Rights


  A Bill of Rights enacted by the Commonwealth Parliament, under their control
• Statutory Bill of Rights


  Would encourage Australia to become a more rights-respecting society
• Key rights like free speech and legal representation are not currently protected in Australia</b>
• Human rights outcomes for many ordinary Australians are poor, e.g. people with mental illness, women with young children seeking to escape domestic violence, people in rural/remote areas without adequate healthcare/education
• Australia is a signatory to multiple human rights treaties that have not been effectively implemented into domestic law
• Australia recently received 290 recommendations from 104 member states on how to improve its protection of human rights
• Statutory Bill of Rights


  Can more easily evolve with society and remain relevant, unlike a constitutionally entrenched rights regime
• Flexibility of a statutory Bill of Rights means it could also be changed at the whim of the parliament of the day