Within Australia, there is not a constitutional bill of rights, meaning that there is no specific section in the constitution that outlines one’s social and political rights. This does not mean that Australian’s do not have any rights according to the constitution. Many rights are described throughout, the rights drawn up in the constitution tend to be of the political realm. The fundamental human rights of Australians are not provided for by the Constitution of the Commonwealth of Australia. The Constitution is not so strict as a document set in stone. It is open to interpretation by the High Court of Australia and Parliament can also fill in voids where the Constitution is silent.
The rights specific rights prescribed via the Australian constitution seem to be more of a restriction on the Commonwealth powers to prevent rights being carried out rather than a direct personal right allocated to the people. First and foremost, the right to vote in commonwealth elections is prescribed in Section 41 where all Australians have the right to vote in Commonwealth elections, provided that they are allowed to vote in their state elections which, in contrast, is an implied right.
Another right is the right to freedom of religion. This is stated in Section 116 where “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance” . So accordingly, Australians have the right to bear whatever religious stance or belief they wish. Adding to this prescription, no religious test can take place or have an effect on the eligibility a person or group to federal office.
Australians also have the right to be tried by way of a jury of their peers if they are charged with an indictable offence as per Section 81. The Australian Constitution does not describe what kind of crimes are indictable, so this leaves the Parliament to decide upon. There are also rights surrounding the compulsory acquisition of property where if the Commonwealth compulsorily acquires a property, then the person is entitled to obtain ‘just terms’ for the property.
Other rights prescribed via the Australian constitution include; the freedom to trade and move among the states (Section 92), freedom to not be treated differently because of what state you are from (Section 117), and access to the High Court of Australia (Section 75). The rights outlined in the constitution tend to be more political in nature which consequently does not provide a lot of protection for the fundamental human rights of the people of Australia.
The implication of implied rights by the High Court has both pros and cons. Some of the advantages of implied rights are that the Constitution is a small document and would never be able to protect all important rights and so, the High Court studies and interprets the intentions and values of the Constitution as per its creators and determines what rights they might have intended. A benefit of implied rights is that it allows for High Court to have a role in articulating them which allows for flexibility in many situations. Implied rights also mean that the High Court can provide rulings that are coherent with not only the Constitution but also the ever-changing social circumstances.
A problem with implied rights is that they are more complex and harder to understand compared to express rights. Comments have been made that are critical of the High Court for ‘finding’ implied rights in the Constitution, calling it judicial activism because they are ruling according to personal beliefs, rather than an as a result of an objective interpretation of the Constitution.
In Lange v Australian Broadcasting Commission (1997) . David Lange, a former New Zealand prime minister sued the Australian Broadcasting Corporation for defamation as a result of the television program, Four Corners broadcasting allegations of political funding. The ABC, in an appeal to the High Court, claimed that the Constitution provided an implied right to freedom of speech with regard to political commentary. The High Court accepted the provision but ruled that the freedom was limited, ruling that Lange was defamed by the Australian Broadcasting Corporation.
The construction of the constitution has allowed Australia some freedoms that other countries to not have with the interpretations. As a result, the fundamental rights strongly depend the sense of social justice within the judicial decision making and also the wider Australian public to recognise violations to fundamental rights and act for the necessary legislation to be enforced.
Fundamental human rights are said to be the basic building block necessary for civilised social activity and political community. Australia as a country is said to have a high level of human right protection but this could be argued differently. The people of Australia are generally well protected but not as a result of a bill of rights. The human rights protection comes from legislation that prevents other groups or people from being unfair towards them which in turn allows the lives of all Australians to be carried out as though they do have a specified bill of rights. Daily life of an Australian is very comparable to a US or UK citizen where a bill of rights is present.
Throughout Australia, there are however, a few situations where there are gross violations of fundamental rights. The legislation though out Australia has become instrumental in protecting rights and mitigating injustice to groups or individuals.
The fundamental rights are not protected through the implied rights. Although Australia claims to have a high standard of rights protection, injustices that still occur need to be prevented. There are some particular groups within Australia that are especially vulnerable to the violation of their human rights such as; Aboriginal and Torres Strait Islander people, asylum seekers, non-English speaking migrants, persons living in poverty and persons with a disability.
An example of where this has occurred is through anti-discrimination laws, specifically, the physically disabled. Corrections to violations of human rights to this group of people has taken place via the Disability Discrimination Act 1992 under Section 2.1 where compulsory fair access to all public buildings must be achieved and checked by an authorised person to ensure every element of the building is accessible. And hence, correcting the violation of rights. This is not drawn upon in the constitution, but the Australian government has still managed to extinguish the violation of rights without the implication of a bill of rights.
The Australian government has recognised the injustice throughout these groups and, in most cases, they have brought about the necessary legislature to prevent the unfair treatment of certain groups. Some of which are the Age Discrimination Act 1992, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Human Rights Commission Act 1986.
A bill of rights might be beneficial in situations of refuge in Australia where the people are not currently being treated with all their fundamental rights being fulfilled. With this in mind, the bill of rights would have to be specific to all people and not just the people of Australia. This is because those people are not Australian and if the bill of rights outlined the rights with respect to Australian citizens then the situation would not change.
Australia has officially recognised human rights and the need for their protection through several treaties including the ICCPR and the ICESCR , The International Convention on the Elimination of all forms of Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and the Convention on the Rights of Persons with Disabilities. Whilst these are not legally binding, they are large scale agreements in which many and in some cases, hundreds of countries agree to be bound to.
The treaties are only agreed on if the party thinks they do not form part of Australia’s law unless the agreement has been incorporated into Australian law through legislation. Some provisions of a treaty may could also pre-exist in legislation. For example, a lot of the provisions provided for in the Convention on the Rights of People with Disabilities are pre-existing in the Disability Discrimination Act 1992 (Cth).
Rather than introducing a bill of rights, corrections to the failure of justice has been brought about though further legislation regarding the current affair to correct the violation of fundamental rights.
In today’s society, a bill of rights might not necessarily be useful, and the current constitution would be adequate. There are few situations where it would change things currently, but it would affect the construction of future law making.
It is hard to know what would happen if an unprecedented pressure such as war was to take an effect in Australia. Depending on the severity, Australia would have to go back to its bones and rebuild. Whilst the legislation would still be in place, most of the political focus would shift away from rights and onto national security and defence. This is somewhere where a bill of rights could be useful as it would be an internal pressure to ensure the fundamental rights are upheld even though hardship.
In conclusion, the implied rights in the Australian constitution do not adequately protect fundamental rights. Fundamental rights are the basic human rights that each human should be entitled to no matter the situation. The constitution only protects voting rights, rights to a fair ruling and similar political rights. There a strong reliance on the social justice of the interpreters of the constitution to ensure that the interpretations are just and protect rights. However, it has been acknowledged that those rights alone do not provide for the fundamental rights involving; equality, discrimination, liberty and many others. Australia has made up for the lack of protection in many ways some being providing legislation for remedy of injustices of fundamental rights and also via agreement to international human rights treaties.