Topic 2

Topic 2: Should Australia have a Bill of Rights? What would be the practical problems in creating one?
Bill of Rights, The Right Call
The process which Australia undertook to become a federation involved many constitutional conventions. Whilst the founders of the nation toyed with the notion of a Bill of Rights, it was eventually dismissed as unnecessary. The dismissal of the inclusion of many civil liberties and fundamental human rights in Australia’s constitution was grounded on a combination of racist motives and a megalomaniac desire to preserve States’ rights, rather than believing the rights of Australian citizens were adequately protected by the common law. The consequences of these actions have been projected into contemporary society with Australia being the only nation with common law that lacks any form of a Bill of Rights to protect its citizens. This is of particular concern as, in recent years, the assertion that Australians can rely on parliamentary representatives and a proud background of respect for rights has dissolved. However, an instatement of a Bill of Rights can resolve this by strengthening civil liberties protection and fix issues of inequality. This case will be argued by analysing Australia’s problem with protecting assumed rights and upholding human rights; the difficulty of instating a constitutional Bill of Rights is also an issue, not helped by activists opposing its implementation. This all provides reasoning for the creation of an Australian Bill of Rights, particularly observable through the lack of civil liberties.
Civil liberties in Australia, whilst generally enjoyed, are not constitutionally protected and enshrined by common law. The widely held perception that they are is unequivocally naïve. Predominately focusing on the protection of property rights, Australia’s lack of human rights in the common law has led to a lack of court obligation to consider civil liberties during a definition of common law. An absence of protection for individual rights can be seen through the four small sections protecting such rights, including the right to: “a trial by jury, the denial of federal legislative power with respect to religion, and the prohibition against discrimination on the basis of State residency”. Whilst offering a basis for civil liberties, four rights is far from what should be expected, many of which are readily recognisable in other developed democratic countries.
The Australian constitution, in comparison to the United States’, offers no assurance to fundamental, and presumed, freedoms such as: “association, expression, movement, peaceful assembly, though, conscience, religion, arbitrary arrest or detention, right not to be subjected to torture or cruel treatment, right not to be deprived of life, and no guarantee of equality for all people before the law”. In this way, citizens with their human rights infringed are vulnerable with little or no way to remedy the breach. Evidence of this being exploited is through the Lange v. Australian Broadcasting Corporation (1997) case where former New Zealand Prime Minister David Lange sued the ABC for defamation which, in its defence, raised the implied freedom of political speech. However, the ABC lost the case as the sections written within the Australian constitution merely implies, rather than defends, a freedom of political speech and does not impart the right upon individuals. As such, it is written in a way that precludes the curtailment of the protected freedom. Thus, the implied freedom of political speech cannot be used as a defence to defamation. In this way, it is clear how Australian civil liberties are lacking in protection, an issue which a Bill of Rights can resolve.
The Australian constitution’s racial vilification and ignorance of human rights has also become of increasing concern in recent years. The founding fathers’ ignorance of minority groups is evident with only one reference to the term ‘family’ and no references to the rights of children. Additionally, the poorly worded constitution has led to the marginalisation of oppression of groups who have had their rights denied including women, homosexuals, handicapped, mentally ill, refugees, ethnic minorities, homeless, and, of much contemporary contention, the indigenous.
The creators of the Australian constitution formulated a discriminatory constitutional framework which, evidently, has a focus on oppressing non-white races. The indigenous Australians and potential immigrants were predominately targeted, especially since the former were considered, under law, of a ward rather than a citizen. This attitude effectively captures the zeitgeist of the time. Nevertheless, a less-racist approach has been taken to Aborigines in recent times and it was assumed for approximately two decades that the Racial Discrimination Act (RDA) 1975 would offer substantial defence from discrimination and, hence, there was no need to have entrenched constitutional guards – like those evident within the United States constitution. However, the uselessness of this legislation in this regard became apparent during the native title case as the Howard Government, in 1997, passed legislation which precluded the application of the RDA to various aspects of the case’s interests – as a response to judicial pronouncements. This meant federal parliament could freely legislate freely with relative disregard to morals and little need to consider human rights principles. Evidently, Australia is still burdened by its lack of rights protections.
This can be justified by the High Court case Kruger v. Commonwealth (1997). Five members of the stolen generation sought compensation for their forced subtraction from their dwelling and family members under the race-based assimilation policy – this request was unfortunately denied. In judgment, the judge stated that “the plain fact of the matter is that the common law has never required as a necessary outcome the equal, or non-discriminatory, operation of laws”. Essentially, the constitution does not guarantee equality before the law. This case clearly highlights Australia’s need to enact a Bill of Rights as, without one, judiciaries have no power to protect fundamental human rights. As such, judges are obliged to obey the legislative laws and impose the rules established by parliament when handing down judgments, no matter the cost. Hence, a Bill of Rights is necessary to address public inequality and discrimination.
It is apparent that a Bill of Rights should be instated into Australia’s constitution, however the 1999 Republic Referendum highlighted the sheer difficulty of constitutional change. This is due to a bill having to be approved by the federal Parliament, then sent to the Governor-General to allow for a writ to be issued so a referendum can occur. Due to this, the referendum must achieve a double majority, then the proposal to amend can be agreed to. If any of these stages and requirements are not filled or met, then the constitution remains unchanged. The sheer difficulty of this is expressed through he fact that there have been forty-four constitutional amendments proposed, of which eight have been approved. To avoid a likely failure of a constitutional Bill of Rights, a legislative Bill of Rights should, instead, be instated as the first step. This has the advantage of involving a minimalist approach and, hence, is more likely to be successful by solving the issue of rigidity. Modelled as a piece of legislation, it can be updated by governments to match changing community values and expectations.
Despite this proposition, there is still heavy resentment towards the introduction of a Bill of Rights – yet these concerns pale in comparison to the issues that have been presented. One of the most pressing issues regards power being transferred from the democratically-elected parliament to unelected judges. This is not the case with a legislative Bill of Rights. Conversely, it is a piece of legislation or an ordinary Act passed by Parliament, which means that Parliament has the ability to repeal, amend or override it using the ordinary mechanisms. Whilst it appears as though the Parliament sovereignty develops and an Act is found to be incompatible with the Bill of Rights, the judiciary would not be able to invalidate it. However, the could still declare that a federal law is incompatible with one or more charter rights. Nevertheless, the ultimate decision on dealing with human rights remains in the hands of the elected Parliament.

Furthermore, some argue that the best rights protection is the democratic system and a Bill of Rights would be counter-intuitive. This is intrinsically flawed. Whilst Australia is a robust democracy, there have been many cases where human rights standards have been disregarded. This can be seen through mandatory immigration detention laws which have been viewed by Amnesty International as a violation of certain basic rights which are upheld in other Western democracies and should be shared by Australia. This suggests an incapability for political representatives to pay sufficient regard to the protection of everyone’s human rights in Australia. Moreover, whilst the representative democracy is founded upon principles of voting politicians in and out based upon the majority’s view on how effective they are, it is not necessarily sympathetic to international human rights standards. Hence, the majority does not always consider the rights of minorities. To counter this, a Bill of Rights would lead to a more open and transparent government which considers human rights standards in the creation of other legislation.
Overall, the institution of a Bill of Rights within Australia would be a step towards eliminating inequality and strengthening civil rights for citizens. Whilst a constitutional implementation of a Bill of Rights would be difficult to produce, this can be circumvented through a legislative Charter of Rights. Nevertheless, whilst the concerns and oppositions to the implementation of a Bill of Rights offer valid points they, ultimately, fail to provide strong grounds for the repulsion of the act and are a shadow to the greater issues at hand. These include many fundamental civil liberties – that one would expected within a Western democracy – not being apparent, along with Australia’s abysmal track record for human rights violation, specifically against indigenous Australians. Thus, the addition of a Bill of Rights to the Australian system offers the best alternative to creating positive reform within the countries human rights. Word count: 1619
Reference List
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