Since federation in 1901, the Constitution has been the guiding document by which all parliaments within Australia must adhere to. However, while the Constitution provides for some level of protection of human rights, a Bill of Rights would further enhance these protections. Yet, some consider turning away from the principle of parliamentary sovereignty, which, along with federation is the bedrock principle of our polity will not bring any positive change. This paper will explore both arguments to determine whether a Bill of Rights is needed in Australia.
A Bill of Rights entails a document that lists the most important rights of a citizen . This document has provided many countries such as the United States of America, Canada and New Zealand with a strong foundation on the basic rights of every individual. Without a Bill of Rights, many Australians’ basic freedoms and rights can be taken away by federal, state and territory parliaments . Having a Bill of Rights allows for the protection of all Australian’s; facilitating the rule of law. A constitutional right for everyone over the age of 18 to vote would have prevented the Commonwealth Parliament from discriminating against Indigenous Australian’s in respect to voting till 1962 . Therefore, saving the government money and time as they needed a referendum to change this. A Bill of Rights results in a fair treatment of all citizens whilst clarifying the interpretation of human rights legislation. At the Constitutional Centenary Conference of 1991, basic human rights were discussed in which it was stated that, "There was strong support for a guarantee of basic rights in some form, entrenching basic rights and especially democratic basic rights” . This shows that the debate for a set of human rights has been on going. This is evident as past proposals for a Bill of Rights have been rejected in both 1929 and 1959 . A Bill of Rights would allow Australia to keep in line with international standards; as we are signatories to many covenants through the United Nations, these are best facilitated within Australia through a Bill of Rights. In 2004, the Al Katab Case concerning asylum seekers was held in the High Court. It was decided through a 4 to 3 majority that the legislation did authorise indefinite detention, even though the detention was recognised as subjective and contrary to article 9 of the ICCPR . This shows that without a Bill of Rights Australia’s human rights laws are vague and difficult to interpret in certain situations. Although a Bill of Rights is seen as a positive idea in the movement forward for Australia, many arguments against a Bill of Rights provide ideal evaluation. If Australia were to introduce a Bill of Rights it would be severely complex. Questions such as “what will be the status to be given to a bill of rights? Is it to be constitutional entrenched or is it to be a legislative instrument?” must be asked. This idea highlights the difficulty that a Bill of Rights entails. A Bill of Rights that is entrenched in the Constitution like countries such as the United States of America are very difficult to change . Furthermore, human rights in Australia are adequately covered by statute and case law. This approach is preferable as rights can be adjusted to accommodate necessary changes over time. An example is the legislation surrounding the double-jeopardy rule in South Australia. The South Australian Parliament authorised the Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 to allow a retrial of an acquitted person for serious offences such as murder on the basis that new evidence may lead to a conviction. A Full Court of the Supreme Court, on application from the DPP, can order a retrial for a person already acquitted. Due to advancements in DNA technology, the amendment was made to make it possible for forensic science to identify potential offenders. If convicted people were protected by the double jeopardy rule in a constitutional Bill of Rights, the changes summarised above could not have occurred if a Bill of Rights existed . Therefore, this highlights that a Bill of Rights can perhaps be a burden to society at times due to the inability to change the document.
Although a Bill of Rights is one possible solution to enhancing human rights in Australia, current practices currently in place also facilitate these human rights in coordination with international standards. Section 80 of the Australian Constitution states that every individual has the right to trial by jury whilst Section 41 entails information surrounding the right to vote . These human rights enshrined in the constitution arguably fulfil the role of that a Bill of Rights would. Former CJ of the High Court, Sir Harry Hobbs said, “In Australia there seems to be no reason to fear such gross violations of human rights as those which regularly occur in some other countries. The common law has proved to be a flexible and effective instrument for the protection of freedom and the mitigation of injustices that might otherwise be brought about by ill-considered legislation” . This emulates the idea that a Bill of Rights is not needed, as current structures in place satisfy human rights to a high standard as they may be found in current legal documentation. In regard to a Constitutional Bill of Rights, it is perceived that a Bill would result in a shift of power from parliament to the judiciary . This is concerning as elected representatives would lose power to those who are not elected by the people. In addition, Australia has ratified the most important human rights treaties which were implemented by the United Nations (UN) through covenants such as the ICCPR , the CEDAW and the CROC . These were included in the Australian Human Rights Act of 1986 , which highlights no need for Australia to have a Bill of Rights embedded within the Constitution as there is already legislation in-line with international standards. However, due to a lack of specific protection of the rights of refugees, Indigenous Australian’s and those of lesbian, gay, bi-sexual, transgender relations have been unsatisfactory according to the United Nations . The UN paid special attention to the incarceration of Indigenous Australian’s being extremely high at 27%. The UN suggested that the government seek Constitutional change to better facilitate the rights of Aboriginal and Torres Strait Islanders people . This suggests that a lack of cultural understanding within Australia’s legal system may have resulted in high incarceration rates of Indigenous Australians. Furthermore, the UN made a recommendation in 2012 that legislation should be made to better facilitate laws surrounding the human rights of those of Aboriginal decent . This will ensure that more attention is paid to the treatment of Indigenous Australian’s. Yet, possible policy options to better involve Indigenous peoples with the community are also seen as crucial if the Government wants to resolve this problem. The issues present show that a Bill of Rights may be necessary in order to better coerce with international standards.
Both arguments for and against a bill of rights provide adequate evidence that Australia does or does not need a Bill of Rights. However, through evaluation it is evident that Australia introducing a Bill of Rights would be beneficial to society as it provides a cornerstone for human rights within Australia, whilst also keeping up to date with international standards.