Why a bill of rights?

Introduction

Australia is now the only common law country in the world without a bill of rights. The UK and New Zealand now both have statutory Bills of Rights. Canada, Fiji, India, South Africa and the United States have constitutional Bills of Rights.

As the Chief Justice of the ACT recently noted at the National Press Club, the notion that we do not need a bill of rights because our rights are adequately protected by the common law and the Commonwealth Constitution, is simply not true and plays upon the ignorance of the law among the Australian people. Almost every freedom that Australians assume they have is not actually protected in the Constitution. For example, neither the common law nor the Constitution guarantee freedom of speech, freedom of religion or freedom from discrimination? , among many other fundamental human rights.

In the words of Chief Justice Higgins:

"Fundamental rights like a right to the equal protection of the law, or the right to peaceful assembly or freedom of conscience � rights that we all assume we have and take largely for granted � simply do not exist at law".

Justice Kirby of the High Court of Australia has said:

"the protection of fundamental human rights, and especially the rights of minorities, is one of the great issues of the law and of the world today".

In his article A Bill of Rights for Australia - But do we need it Justice Kirby states:

"It is necessary also to put some of the values of our society above the party political debate. That is what a bill of rights can do. It can express the enduring values of a good society. It can do so in the constitutional document which gives the cement to the social cohesion of a true Commonwealth. Without it, our constitution is mechanical. It lacks the expression of the aspiration of the people to live in a free and just society, where freedom and justice go beyond political slogans and shibboleths".

Despite statutory laws and international norms, not enough is being done to protect our fundamental rights. Governments are falling into the trap of believing that it is a power unto itself. There is an imperative to ensure that basic fundamental human rights are not undermined. The time has come to discuss the general proposition of a bill of rights, either by means of constitutional entrenchment, statutory enactment, or at the very least a draft aspirational statement of the rights that citizens ought to have.

Common law does not adequately protect fundamental human rights

Not all Australian citizens enjoy adequate protection of fundamental human rights. This inadequacy of protecting human rights of all citizens, in particular, the rights of asylum seekers and the individual and collective rights of Indigenous Australians, presents a compelling case for the introduction of a bill of rights.

The aftermath of the 'Tampa' affair and the subsequent legislation the federal government enacted demonstrated the inadequacy of existing protections for refugees.

This new legislation violates some fundamental rights of refugees, which includes the right not be returned to persecution and the right to family unity. In the meantime, the international legal standards available, such as the Refugee Convention has not been implemented in Australian law.

Refugee�s particular vulnerability revolves around citizenship. Entrenched constitutional guarantees of their rights would help to prevent any challenge to their entitlements and right not to be returned to a place of persecution.

Guarantees of due process and judicial review in relation to the determination of eligibility for asylum must also be ensured. However, such guarantees of judicial review have been removed from the regime.

The present policy of mandatory sentencing of child asylum seekers is inconsistent with its human rights obligations under international treaties. This concerns the protection of liberty. A bill of rights would enhance the possibility of challenging mandatory sentencing, so that Courts must be required to consider the individual merits of a person�s claim to be released from detention and to permit meaningful, periodic review of immigration detention. Child asylum seekers continue to be held in detention centres around the country.

Not only is the government failing to address the concerns about its treatment of refugees and asylum-seekers, but equally the rights of indigenous people. Anti-discrimination legislation provides some protection for Aboriginals where the violation of their human rights is related to discrimination. Nonetheless, that is clearly not enough, as the statistics on Aboriginal health, education and unemployment make clear.

In spite of the bureaucratic activity in response to Commonwealth inquiries, there are more Aboriginal people in custody than ever before, prisoners continue to die in custody, and many economic, social and cultural issues highlighted in those reports have not been effectively dealt with.

Attempts at federal bills of rights

Australians have debated the merits of bills of rights on and off since before Federation. More recently, two proposals have been put forward by the Whitlam and Hawke governments for federal bills of rights. None of these proposals have succeeded. The fact that we have no national bill of rights reflects the views of the framers of our constitution, who believed that basic freedoms were adequately protected by the common law (judge made law) and by our elected representatives.

Arguments for and against a bill of rights

Professor George Williams has summarised the arguments for and against the introduction of a Bill of Rights in his book The Case for an Australian Bill of Rights: Freedom in the War on Terror (UNSW Press, 2004) at page 35.

Arguments for a bill of rights

• Australian law does not protect fundamental freedoms.

• A Bill of Rights would enhance our democracy by setting out and protecting the rights that attach to Australian citizenship.

• A Bill of Rights would protect the rights of minorities, possibly including the rights of non-citizens.

• A Bill of Rights would give legal rights to Australians who are otherwise powerless.

• A Bill of Rights would bring Australia into line with every other western nation.

• A Bill of Rights would enhance Australian democracy by protecting the rights of minorities.

• A Bill of Rights would meet the obligations we have voluntarily assumed to incorporate into our law instruments such as the International Covenant on Civil and Political Rights.

• A Bill of Rights would put rights above politics and above arbitrary governmental action.

• A Bill of Rights would improve government policy making and administrative decision making.

• A Bill of Rights would help to educate Australians about human rights and their system of government.

• A Bill of Rights would promote tolerance and understanding in the community and could contribute to a stronger culture of respect for human rights.

Arguments against a Bill of Rights

• Rights are already well enough protected in Australia.

• The High Court is already protecting rights through its interpretation of the constitution and the common law.

• Rights listed in the law actually make little or no practical difference to the protection of rights.

• The political system itself is the best protection of rights in Australia. We should trust in our politicians and our power to vote them out.

• A Bill of Rights would actually restrict rights; in other words, to define a right is to limit it.

• A Bill of Rights would be undemocratic because it might give unelected judges too much power over important social issues.

• A Bill of Rights would politicise the judiciary and affect public confidence in the courts.

• A Bill of Rights would be expensive given the amount of litigation it could generate.

• A Bill of Rights would be alien to our tradition of parliamentary sovereignty.

• A Bill of Rights would protect some rights that may not be as important to future generations.