Should Australia have a Charter of Human Rights? The process by which Australia became a nation, Federation, involved a series of constitutional conventions and although our constitutional founders addressed the issue of a Bill of Rights, they ultimately decided against it. The rejection of proposals to include fundamental rights in the Australian constitution was not based on considered arguments that the basic rights of Australians were adequately protected by the common law, but instead, by the combination of racist motives and an obsession with preserving States’ rights (McClelland 2002, p. 139). Unsuccessful attempts have been made over recent decades to introduce a Bill of Rights in Australia, most notably by Attorneys-General Lionel Murphy (1973) and Gareth Evans (1983). Currently, most countries of the world have a Bill of Rights expressed in their constitutions; however, Australia remains in a small minority of countries which has rejected the idea of enacting a Bill of Rights, be it a constitutional or a statutory Bill of Rights. In this essay I ask the question, ‘Should Australia have a Charter of Human Rights’, in the context of a case brought before the High Court of Australia in 1997 prior to addressing whether a Bill of Rights should be entrenched in the Australian constitution, or alternatively, enacted by way of federal statutory legislation.
Australia is one of the oldest continuous democracies in the world and its citizens exercise their political rights through their elected representatives acting within a constitutional framework and the rule of law (Ozdowski 2006, p. 22).
The prevailing wisdom throughout Australian society is that civil liberties are protected by democratically elected parliaments, independent judges, common law and a free press, thus negating the need for a Bill of Rights (Ozdowski 2006, p. 22). This widely held perception could not be further from the truth and is at best, unequivocally naive, as the primary focus of the common law is the protection of property rights and not the protection of human rights. In fact, courts are not bound to consider civil liberties when defining common law (Ozdowski 2006, p. 23). Furthermore, legislation does not need to consider human rights’ issues when being drafted or amended and takes precedence over the common law (Ozdowski 2006, p. 23).
It would be useful to begin by making some general observations about Bills of Rights and contrasting Australia to countries such as the United States, Canada, the United Kingdom, New Zealand and South Africa, all of which have enacted either a constitutional or a statute Bill of Rights. A Bill of Rights in itself is not a universal panacea in terms of protecting the rights of people, especially in the case of minority groups, but nor is parliamentary democracy and in particular, the common law in isolation. In order for a Bill of Rights to function most effectively, a country must have a reliable legal system with a commitment to the rule of law, overseen by independent judges, as is the case in the United States, Canada, the United Kingdom, New Zealand and South Africa.
It is often the case that those opposed to the enactment of a Bill of Rights argue on the basis that power would be transferred from a democratically elected parliament to unelected judges. However this is a glib argument, as a Bill of Rights is itself a profoundly significant expression of the will of the people. A Bill of Rights is essentially a list of rights articulating the basic assumptions on which a society is founded and ensures that those assumptions are respected by the parliament when drafting and amending laws on matters over which it has legislative power, thus protecting the rights of individuals against infringement by government and others.
Although Australia was one of the most active supporters of the Universal Declaration of Human Rights in 1948 and whilst civil liberties in Australia are generally enjoyed, it remains the case that in the absence of a Bill of Rights, civil liberties cannot be adequately protected and can never be guaranteed; hence the Australian system is far from perfect (Ozdowski 2006, p. 22). The constitution in its current form provides little protection for individual rights, as there are only four sections protecting such rights, being 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 of residency (Ozdowski 2006, p. 22). The constitution makes no reference to numerous other individual rights which are readily recognised in the constitutions of other developed democratic countries, hence leaving citizens whose human rights are infringed vulnerable with little or no way to remedy the breach.
In contrast to the United States constitution, the Australian constitution does not guarantee fundamental freedoms such as the freedom of association, freedom of expression, freedom of movement, freedom of peaceful assembly, freedom of thought, conscience, and religion, freedom from arbitrary arrest or detention, the right not to be subjected to torture or cruel treatment, the right not to be deprived of life and nor does the Australian constitution guarantee equality of all persons before the law (Ozdowski 2006, p. 22). Furthermore, the Australian constitution makes only one reference to the term ‘family’ and absolutely no reference to the rights of children who, unlike adults, have no vote and are particularly vulnerable to discriminatory and ill-conceived legislative action enacted by government. Other marginal groups in society that have had their rights denied include indigenous Australians, women, gays, the handicapped, the mentally ill, asylum seekers, ethnic minorities and the homeless.
In relation to indigenous Australians, it was widely assumed for approximately two decades that the Racial Discrimination Act 1975 would provide adequate protection against discrimination and as a consequence, it was unnecessary to have entrenched constitutional protections like those contained within the United States constitution (Behrendt 2000, p. 24). However, the ineffective nature of this piece of legislation soon became apparent in relation to native title. In 1997, the Howard Government’s response to judicial pronouncements in relation to native title was to pass legislation precluding the application of the Racial Discrimination Act to various aspects of native title interests (Behrendt 2000, p. 24). Hence, federal parliament is free to legislate in a morally ambiguous manner without the need to consider human rights principles which takes precedence over the common law.
Constitutional lawyer Williams (cited in Behrendt 2000) notes that ‘the framers of the Australian constitution intended to create a framework that would discriminate on the basis of race – both in relation to indigenous people (who were to be confined to missionaries and reserves) and later to potential immigrants (who were to be kept out if they were not white). At the beginning of the twentieth century, it was assumed that Aborigines were a dying race and predominant views about Aboriginal people were racist, whether benevolently or malevolently so; Aboriginal status under law was that of ward rather than citizen. Australia is still burdened by its lack of rights protections; and this burden falls heaviest on indigenous Australians’.
The High Court case, Kruger v. Commonwealth (1977), involved a claim by five members of the stolen generation (inter alia) for compensation based on their removal from their families under government legislation that was part of a race-based assimilation policy (Behrendt 2000, p. 25). In his judgement, Justice Dawson (cited in Behrendt 2000) 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’. In other words, the constitution does not guarantee equality before the law. This case is one of many examples which highlight the need for Australia to enact a Bill of Rights, as without a Bill of Rights, judges arguably have no adequate tools to protect fundamental human rights. Members of the judiciary are obliged to obey the legislative laws and impose the rules established by parliament when handing down judgements, even if a judgement breaches fundamental human rights. Hence, there is an unequivocal need to provide judges with adequate means to address alleged breaches of fundamental human rights.
This is precisely what a Bill of Rights addresses and why this essay is advocating the enactment of a Bill of Rights in Australia.
Whilst first preference would be to enact a constitutional Bill of Rights, the recent Republic Referendum highlighted the difficulty commonly faced by those proposing constitutional change. In order to avoid the probable failure of a constitutional Bill of Rights it may, as a first step, be prudent to enact a statutory Bill of Rights, similar to what has been adopted in the United Kingdom and New Zealand (Behrendt 2000, p.26). The latter option, enacting a statutory Bill of Rights, has the advantage of involving a minimalist approach and hence is more likely to be successful than attempting to enact a constitutional Bill of Rights, as is the case of the United States. McClelland (2002, p. 145) noted ‘It is also possible to protect a
legislative Charter of Rights by prescribing that the charter will prevail over any other piece of legislation unless a subsequent Act specifically contained a ‘notwithstanding’ provision. The ‘notwithstanding’ clause would provide guidance for a future parliament’.
Either way, it is imperative that the Australian public be engaged in the content of the bill, thus giving Australians a greater interest, association and ownership of the outcome (Behrendt 2000, p.26). The other possible tangible benefit such a process may have is to create a culture of awareness in terms of fundamental human rights in the Australian psyche, as is the case in the United States and as a bonus, it may also erase some popular misconceptions about indigenous rights being so-called ‘special rights’ (Behrendt 2000, p.26).
In conclusion, if a society is judged by how it treats its most vulnerable people, then protecting fundamental human rights and providing accessible, equitable justice and compensation for breaches of human rights is pivotal in advancing social justice. It is therefore unacceptable that a developed nation, such as Australia, has arguably the lowest standard of human rights’ protection. The challenge for Australians is to collectively take ownership of our constitutional arrangements and by doing so, thus ensuring the enactment of a Bill of Rights which would unequivocally provide a starting point in terms of respecting the rights of minorities and protecting basic constitutional principles, such as the rule of law and the independence of the judiciary.
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References: Behrendt, Larissa 2000, ‘RIGHTING AUSTRALIA’, Arena Magazine, no. 45, pp. 24-26, (viewed 30 May 2008, Multiple databases Full Text).
McClelland, Robert 2002, ‘Is the Time Right for a Bill of Rights?’, Labor Essays, pp. 137-150, (viewed 30 May 2008, Multiple databases Full Text).
Ozdowski, Sev 2007, ‘Why We Need an Australian Bill of Rights Now’, Just Policy, no. 43, pp. 22-25, (viewed 30 May 2008, Multiple databases Full Text).