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Should australia have a bill of rights essay

A Bill of Rights for Australia - But do we need it? Brisbane As part of the review of the Australian constitution to coincide with its centenary, voices are again being raised in favour of the incorporation of a constitutional bill of rights.

A number of recent books have come down in favour of such a move. They suggest that if we give the High Court enough time, a bill of rights, implied out of the Constitution, will emerge, to protect our "implied freedoms". In this article, Justice Michael Kirby reviews the arguments for should australia have a bill of rights essay against a bill of rights in Australia. As he shows, each side can muster strong arguments to support its point of view The Law Council of Australia, with others, is organising a major meeting, the Australian Rights Congress, which will take place in Sydney, 16-18 February 1995, to provide a focus for this important national debate.

Most of the principles of the Australian Constitution are derived from the British and United States constitutions. The British constitution is not unwritten, as is often claimed. But generally, the British constitution has rested not upon written documents but upon the principle of the sovereignty of an elected Parliament. When the Australian constitution was being designed, there were three elements which marked it off from the United States precedent from which much was derived.

The fact that the Federal Commonwealth would be established under the Crown. The fact that the Executive would sit in Parliament. And the rejection of a notion of a general bill of rights. A proposal for a bill of rights was put forward in the Constitutional Conventions.

How a charter might work

The proposal was lost 19 votes to 23. Fear was expressed that a due process provision in such a bill of rights would undermine some of the discriminatory provisions of the law at that time, including those laws and practices which disadvantaged Aboriginal people and the Chinese in Australia.

Nevertheless, some of the provisions contained in the Australian Constitution are equivalent to bill of rights provisions. Some of them have been very important. But the hidden potential was to be found, ultimately, in the power conferred upon the Federal Parliament to enact laws with respect to external affairs. It is this legislative power which has sustained the expansion of federal legislation for the protection of fundamental rights based upon international human rights treaties. Since Federation, a number of attempts have been made to introduce a bill of rights or bill of rights provisions into the Australian Constitution.

Inquiries into the constitution in 1929 and 1959 rejected the idea.

  • To that extent they are already involved in politics, although not usually party politics;
  • Of course, many of the countries with bills of rights shamefully deny such rights to their citizens;
  • They are doing so by the principle which has been approved in Mabo above;
  • Certainly it cannot be assumed that these features will exist forever;
  • These include the treatment of asylum seekers at regional processing centres, and the inexplicable jailing , sometimes for up to ten years, of people charged with crimes for which they are deemed unfit to stand trial because they suffer from mental illness;
  • Without it, our constitution is mechanical.

In 1942, a referendum to enhance the Federal Parliament's powers over post-war reconstruction, proposed, as a trade-off, a constitutional limitation on the abridgment of freedom of expression and extension of protections for freedom of religion to the States.

The referendum was, however, defeated. Likewise, in 1988, the Constitutional Commission established for the Bicentenary of European settlement in Australia proposed the adoption of a charter of human rights. In pursuance of the recommendations of the Commission, the Bicentenary referenda were held. There were proposals for bill of rights protections to cover amongst other things trial by jury, freedom of religion and the acquisition of property on just terms by the States.

However, these proposals were rejected by the people. The average vote for their inclusion in the Australian constitution scarcely rose above thirty percent in any State. Two major attempts have been made in the Federal Parliament to introduce a general bill of rights in the form of a non-constitutional statutory enactment.

However, this became very controversial in some quarters, was resisted in the Senate and was allowed to lapse.

A Bill of Rights for Australia - But do we need it?

But it too lapsed and has not been revived. Notwithstanding these failures, the Federal Parliament during the Fraser Government enacted legislation establishing a national Human Rights Commission. There have been many specific statutes dealing with human rights questions and the removal of various kinds of discrimination. Some of these have been based upon Australia's ratification of international treaties.

In the common law, decisions of the High Court of Australia sometimes demonstrated, even to sceptical observers, the need for bill of rights protections to override old inherited laws and to reflect notions of fundamental rights and human equality. I refer, for example, to the Dugan case, which held that a prisoner, convicted of a felony and sentenced to death, lost his civil rights to sue in the courts.

I refer also to the McInnes case where the High Court held, by majority, that a prisoner, facing a rape trial, deprived at a late stage of legal representation, had no right to legal counsel and had to do the best he could, representing himself.

Unsurprisingly, he was convicted. More recently, decisions of the High Court of Australia and of the highest courts in Australia have been much more sensitive to the protection of basic rights.

In Mabo v Queensland [No. This action rendered Australia accountable in the international community for breaches of fundamental rights.

  1. If the people have basic rights in their heart, so it is said, it will be reflected in the laws enacted by Parliament.
  2. It is unlikely that an Australian bill of rights would be able to cover, still less cope with, all of the issues of basic rights which need to be dealt with in a true charter of the people's rights.
  3. Common law, which is law made by judges; legislature, made by politicians; and international conventions, made by politicians and their diplomats, all provide unequal access to decision-makers and their decisions. The existing Australian Constitution does not even guarantee the existing level of suffrage Senate Standing Committee on Constitutional and Legal Affairs, 1985.
  4. That is why it is essential to include in the constitution a statement of their basic rights and duties as citizens.
  5. This is so despite the fact that virtually every other country enjoys a constitution with beautiful bill of rights provisions.

This consideration was one which led to the reversal of the McInnes case in the decision in Dietrich v The Queen. There it was held that, in certain circumstances, a prisoner facing a serious criminal charge, must be provided with legal counsel if to deprive him or her of such expert representation would render a trial unfair.

Even more lately, the High Court has found constitutional rights implied in the Constitution. Thus, the right to free public discussion of matters of politics and economics were found, in the Capital Television decision, to be inherent in the very nature of the Australian representative democracy established by the Constitution.

The lesson of these decisions of the nation's highest court is that we are on the path towards a judicially created bill of rights. The common law has always protected certain rights. But its protection against a clearly expressed statute could not always be effective.

Against the common law the will should australia have a bill of rights essay the legislature will ultimately prevail.

That is why voices are now lifted, with increasing determination, to suggest that an Australian constitutional bill of rights is necessary, timely and achievable.

Let me summarize the arguments against the introduction of a bill of rights into the Australian constitution. The first argument is that it would represent a turning away from the principle of parliamentary sovereignty which, with federation, is the bedrock principle of our polity.

After having won universal suffrage and full democracy, it is said, the introduction of a bill of rights would represent a vote of no confidence in our legislatures and our people.

It would insist on putting limitations upon the passage of laws even though willed by the people.

  1. Notwithstanding these failures, the Federal Parliament during the Fraser Government enacted legislation establishing a national Human Rights Commission. But its protection against a clearly expressed statute could not always be effective.
  2. The judge will not do this if it is contrary to a clear statute enacted by Parliament.
  3. It will provide a constitutional reference point.

If the people have basic rights in their heart, so it is said, it will be reflected in the laws enacted by Parliament. If they do not, it is urged, no piece of paper, such as a bill of rights, will defend those who may be harmed by derogation from fundamental rights. The basic notion of our form of society is that all people enjoy full rights to do whatever they like unless such rights are lawfully taken away from them.

At least in a country such as Australia, where parliamentary democracy usually works reasonably well, we can trust the legislators. If they do not act justly, particularly if they act oppressively, they will be dismissed from office at the next election. This is how our democracy has worked in the past. It is how opponents of the bill of rights suggest it should continue to work into the future.

It would politicize the courts: Then it is said that a bill of rights would, as in the United States, politicize the Courts. It would amount to, or produce, a form of judicial imperialism.

It would transfer great power from the elected representatives of the people in all their variety, to the judges. But the judges, as recent experience shows, are generally conservative, middle-aged men. A bill of rights would entrench their values in the basic law of the land - to prevail even over Parliament's statutes. It would need a difficult constitutional amendment to change a rule introduced by them.

We should not transfer such power to such a group. We should continue our faith in the people. It would limit rights: To define is to limit. However comprehensive a bill of rights should australia have a bill of rights essay be, it would require squeezing difficult problems into the artificially limited categories expressed in a written bill of rights.

However clever may be the drafter, it would be inherent that any language would expressly state, and thereby confine, the basic rights of the people. James Madison, when first asked to draft the American bill of rights, was reluctant.

His question is still valid: But there are other fundamental rights which cannot be so easily expressed and enforced by the courts. And the duties of people are just as important as their rights. We must be careful before setting-off down the path of an excessively right-prone society. It ignores differences of regions: Another difficulty is that a bill of rights might be heavy-handed.

It would necessarily be uniform throughout our continental country. The experience of Australia has been of varying laws in different regions of this vast territory. There is no necessary reason, so it is said, why a bill of rights should stamp a single approach to sensitive social issues throughout the whole of Australia.

Such issues should be determined locally: A bill of rights would endanger the variety of social regulation. Human variety, like the variety of animals and plants, is a precious feature of nature and of freedom. Within our Federation, it has permitted experimentation with protective legislation which, when it is seen to succeed, has soon been copied in different parts of the nation. This is the way reforms have been achieved in matters such as anti-discrimination, homosexual law reform, equal opportunity laws and the like.

We should continue with this tradition, which is respectful of democratic opinion. It overlooks new problems: Any bill of rights drawn today would soon be out of date.

  • Australian Government Publishing Service;
  • Such legislation can typically be expressed in far greater detail and specificity;
  • We should not transfer such power to such a group.

The problems for human rights vary in the perceptions of different ages. Thus, problems for the future will include those presented by computers, by biotechnology and the human genome project.

It is unlikely that an Australian bill of rights would be able to cover, still less cope with, all of the issues of basic rights which need to be dealt with in a true charter of the people's rights. Better to leave these to Parliament, to be dealt with as the need arises. Frozen attitudes of the past: The other side of this coin is that a bill of rights might entrench attitudes to rights which become out of date with changing times or new technology.