Introduction
Australia is one of the only modern democracies without a Bill of Rights (D'Cruz, 2007). There is an ongoing debate about whether Australia needs a document to protect peoples’ rights. A variety of arguments have been presented both for and against the bill. It is argued that there is no need for a Bill of Rights in Australia as we are already sufficiently protected, that it would be too expensive, and it would disrupt the separation of powers. However, the opposing argues that Australia’s international reputation would be improved, protection against misused parliamentary power would be gained, and minority groups (e.g. refugees) would be protected from having their fundamental human rights violated. – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –
Arguments against having a Bill of Rights
Many Australians believe there is no need for a Bill of Rights. The primary argument against having a Bill of Rights is that people believe they have democratically elected politicians and governments to create laws which will protect their rights and freedom. They believe they are appropriately guarded without a Bill of Rights, however it is likely these individuals have not experienced their human rights being violated, which is possibly the reason they consider the current system sufficient (Lawfoundation.net.au., 1994). A further argument in support of this is that Australia is a diverse nation, and people have lived contentedly side by side for many years. Therefore, a Bill of Rights would not present any fundamental human rights that the population does not already have (Lawteacher.net., (2013). It is debated that Australia’s common law and elected politicians have been more successful in protecting human rights, compared to countries which do have such documents. An example of this is in Malawi, Africa, where the government tried to convict two people for violating laws against homosexual conduct because they had an engagement ceremony, in fact this was violating the couple’s freedom (Lawteacher.net., (2013). The case of artist Owen Maseko in Zimbabwe is another that supports the argument that countries with a constitutional Bill of Rights are worse off. This man was arrested after taking part in an art show at the National Gallery, where his art illustrated the brutality that occurred in his country during the 1980s. It depicted Gukuruhundi, where mainly state security agents killed thousands of people. Maseko faced numerous charges, which all violate his freedom of expression, which happens to be well-established in Zimbabwe’s Bill of Rights (Amnesty International, 2010). – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – Another argument against having an Australian Bill of Rights is that the wealthy, and large corporations would be the only winners out of such laws. The people and companies that could afford court access would be the ones that would make use of it. Also, it is a common belief that it would be very expensive to develop and apply a Bill of Rights to the country (Lawteacher.net., 2013). Moreover, it is alleged that a constitutional Bill of Rights would shift power from democratically elected representatives, to the judiciary. This could result in reduced sovereignty of the parliament, causing major upset to the separation of powers (Lawteacher.net., 2013). Additionally, the government appears to believe that the Australian community would become too dependent on a statutory Bill of Rights, making it very challenging and controversial to amend it (Australian Family Association, 2018).
In summary, arguments against a Bill of Rights in Australia state that it is not necessary in protecting our fundamental human rights and freedoms, only certain people would experience benefits, also difficulties in the implementation of such bill would be too difficult to solve. – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – Arguments for having a Bill of Rights
A Bill of Rights in Australia is essential to re-establish the country’s international position as one which defends and respects the rights of all (Dahlstrom, 2018). Australia is lagging behind its neighbour, New Zealand, which implemented a Bill of Rights in 1990 (New Zealand Ministry of Justice, 2016). Also, the United Kingdom where our basic laws are derived from, enacted the Human Rights Act 1998 which currently has regular impact on their law (legislation.gov.uk., 2018).
An important argument for having a Bill of Rights is protecting human rights against the abuse or misuse of parliamentary power. Currently, there is no system to judge impacts of proposed laws against human rights (Lawteacher.net., 2013). People within the Australian community lack protection of their human rights. The elderly, children, homosexuals, the indigenous, migrants, along with other minority groups who are disadvantaged legally will be protected in the implementation of such laws (Lawteacher.net., 2013). There have been cases in Australia where the result has been a violation of what should be written human rights. Examples such as the ‘stolen generation’ and the case of Bakhtiyari v Australia show the need for a Bill of Rights. After arriving in Australia as refugees, Mr Bakhtiyari’s five children were detained for a period of over two years, in which they suffered poor health and mental trauma. The UN identified numerous violations of human rights (CRIN, 2003). These children would have been protected under laws in a Bill of Rights. According to the Australian Human Rights Commission in November 2015 there were 1,852 people in immigration detention facilities, 104 being children. 436 people had been detained for more than two years (Australian Human Rights Commission, 2015). This highlights human rights issues within Australia and reinforces the need for a Bill of Rights.
Contrary to what some may say about a flood of litigation forcing the government to spend large amounts of money if a Bill of Rights was introduced, Charters in Victoria and the A.C.T. have not resulted in this (Constitution Education Fund Australia, 2017). While there is a definite expectation that introducing such laws would come with expenses, the benefits would far outweigh the cost.
By enacting a Bill of Rights, human rights violations can be controlled and minimised much more effectively, benefiting the Australian community.
Recommendations for the Implementation of an Australian Bill of Rights
The Canadian Bill of Rights was enacted in 1960 to allow human rights issues into their Courts. However, the Bill of Rights was used only by various judges and infrequently, therefore it was not a solid and sudden implementation of human rights protection (D'Cruz, 2007). In 1982, the Canadian government passed the Charter of Rights and Freedoms in order to unite the country. Human rights were then entrenched in the Canadian Constitution, resulting in legislation inconsistent to this being invalid (D'Cruz, 2007). This steady integration of the human rights principals into the law can be a useful approach. Law makers and the society can become accustomed to the written rights, before they become part of the Constitution (D'Cruz, 2007). This method used by Canada could be utilised by the Australian government when implementing a Bill of Rights. The slower approach would allow positive and negative impacts on Australians to be measured before it becomes part of the Constitution. Immediate spending by the government would be minimised and the assumption that a Bill of Rights would negatively impact Australia’s separation of powers could be assessed. This type of government approach for entrenching a Bill of Rights into the Australian Constitution appears to be the most sustainable and beneficial for Australians in the long-term.
Conclusion
Although there are some valid arguments against the implementation of a Bill of Rights, such as the potential disruption to the separation of powers, the consequences of having unprotected human rights are too grave. It is evident that a Bill of Rights is necessary for Australia to keep up to date with the rest of the world, but more significantly to emphasise the universal nature of human rights, regardless of age or race etc. There are many different forms in which a Bill of Rights could be enacted, however the gradual approach used in Canada appears to be the most suitable. Initially, a Bill of Rights does not have to be entrenched in the Constitution, however ultimately it should be the aim in order to achieve a protected and fair society.