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The Need for a New Preamble to the Australian Constitution and/or a
Bill of Rights
Mark McKenna
Law and Bills Digest Group
Major Issues Summary
Introduction
A Chronology of Recent Reform Initiatives in Australia
The Preamble
Preamble to the Australian Constitution 1901
Symbolism
Democracy
Independence
Aboriginal Reconciliation
Arguments against the Introduction of a New Preamble
Possible Responses to Arguments against the Introduction of a New
Preamble
Legal Implications of the Preamble
Options for Change
How the Preamble Can be Altered
An Australian Bill of Rights
Complacency, Political Culture and the Great Australian Quilt
Arguments against a Bill of Rights
Arguments for a Bill of Rights
The Internationalisation of Human Rights Law
High Court Activism
The Relevance of the Canadian and New Zealand Experience to Australia
Focus, Content and Wording
An Entrenched Bill of Rights?
The Judiciary and a Bill of Rights
Minorities and a Bill of Rights
Conclusion
The Preamble, an Australian Bill of Rights and the Civic Deficit
Endnotes
Appendix 1: The Canadian Charter of Rights and Freedoms
(1982)
Appendix 2: New Zealand Bill of Rights Act 1990
Appendix 3: The Preamble to the Constitution of the Republic
of South Africa
Appendix 4: Alternative Preambles
Bibliography
An important but often overlooked feature of the Australian Constitution
is the preamble which, if nothing else, sets the tone for the remainder
of the document. The preamble is not part of the Constitution, but it
is a guide to the intentions of those who are responsible for it, and
the High Court has referred to the current preamble for guidance on several
occasions since federation.
The preamble reflects the values and priorities which were prevalent
at federation. It contains no inspirational flourishes or rhetorical appeals
to individual liberty. Instead, in dry, measured and calculated prose,
it embodies the three unifying features of federation in Australia: loyalty
to the Crown, belief in God and the shared need to provide national unity
for white Australians through the introduction of a federal government.
The preamble had its origins in the National Australasian Convention of
1891 and was further revised at the Australasian Federal Convention of
1897-1898 before finally being accepted in 1898, after colonial legislatures
and petitioners successfully insisted on the inclusion of the blessing
of 'Almighty God'.
The majority of delegates at the federation conventions in the 1890s
rejected proposals for a truncated Bill of Rights which would have ensured
that Australian citizens were not to be deprived of 'life, liberty or
property without due process of law'. They preferred instead to believe
that the Common Law, the good sense of Parliament, convention and the
gentlemanly traditions of utilitarian political culture were sufficient
to protect individual rights and freedoms in Australia.
It would probably be widely agreed that the preamble is no longer fully
representative of the views or the sentiments of the majority of the Australian
people. The language is arcane, the preamble neither expresses the absolute
sovereignty of the Australian people as an independent nation nor refers
to democratic values and aspirations, and the process of reconciliation
with the original inhabitants of the continent is ignored.
Many supporters of an Australian Republic would argue that a new preamble
is not only essential but could also provide symbolic support for other
important initiatives such as the adoption of a Bill of Rights. There
is a strong case to support the argument that the moral and political
legitimacy of the Australian presidency would be enhanced by the introduction
of a new preamble that was a concise, lucid and memorable articulation
of the democratic aspirations and common values of the Australian people.
Such a preamble would help to elevate the role of the President and the
new republic above the shallow slogan of 'one of us', as well as serving
as a check on presidential power.
The argument for a new preamble would not, however, go uncontested,
and just what course is followed will in turn depend on other changes
that are contemplated. One of those changes is the inclusion of a Bill
of Rights. In the event of Australia continuing without a Bill of Rights,
the legal ramifications of a new preamble (while not carrying the same
legal weight as a Bill of Rights) may be more considerable.
In the event of Australia adopting a Bill of Rights which restates the
legally enforceable democratic rights and freedoms held by the Australian
people (some of which may appear in the form of more generalised aspirations
in the preamble), the potential legal effect of the preamble may be diminished.
However, this will be affected not only by its content but by considerations
such as whether or not the Bill of Rights is constitutionally entrenched
and possible limitations on its application. If the Bill of Rights refers
only to civil and political rights while the preamble makes reference
(however obtuse) to economic and social aspirations, the preamble may
be referred to for guidance in those areas not covered by the Bill of
Rights.
Shortly after his retirement as Prime Minister, Sir Robert Menzies,
in commenting on the need for an Australian Bill of Rights, stated:
Responsible government in a democracy is regarded by us as
the ultimate guarantee of justice and individual rights. Except for our
inheritance of British institutions and the principles of the Common Law,
we have not felt the need of formality and definition. I would say, without
hesitation, that the rights of individuals in Australia are as adequately
protected as they are in any other country in the world.
Menzies' views are a fair reflection of the dominant thinking of that
era. Thirty years later, and notwithstanding a number of failed attempts
to enact an Australian Bill of Rights, faith in the common law as a guarantor
of fundamental rights or of legal certainty has diminished. This shift
in thinking has been accompanied by a more broadly defined interest worldwide
in human rights, reinforced by the burgeoning influence of international
law.
In Australia, common law protections have been bolstered by a patchwork
of laws protecting defined rights in prescribed circumstances (for example,
the various anti-discrimination laws), and by the incorporation or adoption
of standards established under international treaties and conventions.
On the other hand, the courts have continued to develop the common law
and the High Court has added a new dimension to the debate by implying
the existence of certain basic political rights from the democratic and
representative nature of the Australian Constitution. Allied to these
developments has been the interest in re-examining the Constitution itself
as the new millennium and the hundredth anniversary of federalism approach.
The cases for and against a Bill of Rights have been argued in Australia
and overseas, with the overwhelming majority of independent countries
now having a Bill of Rights in terms of the rights enunciated in the International
Covenant on Civil and Political Rights.
Recent overseas experience may be of value in exploring where the balance
of argument for and against rests in contemporary Australia. In examining
relevant overseas experience, Canada, New Zealand and South Africa provide
useful models in asking:
- What should be the focus of any Bill of Rights?
- What should be the form and substance of any such Bill?
- Should the Bill of Rights be entrenched in the Constitution?
- Should any Bill of Rights have precedence over all other laws including
otherwise valid State laws?
What would be effect of a Bill of Rights on the judiciary? Would it
add to the courts' costs and therefore actually reduce the rights of some
potential litigants?
These questions, together with the associated issues raised by the introduction
of a new preample, are likely to be the focus of considerable attention
at the Constitutional Convention later this year. Any discussion surrounding
the constitutional alterations necessary to achieve a republic will undoubtedly
raise the issue of rights and values. This paper focuses on the relevance
of rights and values to Australia's 'republican' constitution.
With a view to identifying values and overcoming objections
to a Bill of Rights, some commentators have suggested that the preamble
to the Constitution might be amended to recite a set of values.
Sir Anthony Mason(1)
In the context of the post-1991 debate on the prospect of an Australian
republic there have been few attempts to examine the relevance of the
preamble and/or a Bill of Rights to the national discussion on constitutional
reform.(2)
In light of the approaching Constitutional Convention in 1997, it is
timely to consider these issues, not only in relation to the republic
debate, but also in the wake of recent constitutional and legal developments.
This paper has a threefold purpose. First, to provide an accessible
and concise chronology of events relating to the post-1960 discussion
in Australia on the questions of a Bill of Rights and alteration of the
preamble to the Constitution; secondly, to outline the arguments for and
against the alteration of the preamble and a Bill of Rights; and finally,
to convey the complexity of the issues associated with these two key and
related areas.
The paper draws heavily on the final Report of the Constitutional Commission
of 1988 and the 1993 report of the Republic Advisory Committee. It also
refers to the extensive academic literature on a Bill of Rights as well
as the recent initiatives of State and Territory governments. In addition,
it seeks to explore the relevance of the Canadian Charter of Rights and
Freedoms (1982) and the New Zealand Bill of Rights Act (1996) to future
Australian initiatives concerned with the protection of individual rights
and freedoms.
It is hoped that the paper will stimulate debate on the relevance of
the preamble and/or a Bill of Rights among members of Parliament, as well
as participants and interested observers of the coming Constitutional
Convention.
1963 The ALP National Conference adopts a new section in the
Federal party platform. The declaration calls for both Federal and State
Parliaments to pass Acts providing for civil liberties.(3)
1966 Eighteen years after the United Nations Declaration of Human
Rights (1948) the South Australian Labor government passes the Anti-Discrimination
Act, the first legislation prohibiting discrimination passed by any Australian
Parliament.(4)
1967 The ALP National Conference unaminously endorses a proposal
put forward by Senator Lionel Murphy to campaign for the entrenchment
of fundamental civil rights and liberties in the Federal Constitution.
Murphy invokes the French and American Revolutions:
Our goal is to rearrange our society in such a way that every
person will have the opportunity to attain the utmost fulfilment of his
own personality, that is the goal of democratic socialism. It was the
aim of those who wrote the Declaration of the Rights of Man and the Citizen
in 1789, it was the aim of those who wrote the Universal Declaration of
Human Rights and it is our aim.(5)
1967 Shortly after his retirement as Prime Minister, Sir Robert
Menzies articulates the view which would come to typify the attitude of
many in the political, legal and academic elite in Australia towards a
Bill of Rights:
Responsible government in a democracy is regarded by us as
the ultimate guarantee of justice and individual rights. Except for our
inheritance of British institutions and the principles of the Common Law,
we have not felt the need of formality and definition. I would say, without
hesitation, that the rights of individuals in Australia are as adequately
protected as they are in any other country in the world.(6)
1973 Senator Lionel Murphy, Attorney-General in the Whitlam government,
introduces a Human Rights Bill into the Senate. Murphy's Bill is modelled
on the International Covenant on Civil and Political Rights (ICCPR) and
relies on the Commonwealth's external affairs power to ensure the compliance
of the States. The Bill arouses considerable opposition, primarily characterised
by 'States rights' concerns and the associated fear of Commonwealth centralisation
of power. The Bill lapses and, despite minor amendments, fails to be placed
before Parliament again.(7)
1975 The Racial Discrimination Act, one of the last legislative
acts of the Whitlam government, binds State and Commonwealth governments
to the principle of freedom from discrimination on the grounds of race,
colour, descent or ethnic origin. The Act incorporates the principles
of the International Covenant on the Elimination of all Forms of Racial
Discrimination (1965), ratified by the Whitlam government on 30 September.(8)
1976 The Fraser government ratifies the United Nations International
Covenant on Economic, Social and Cultural Rights (1966).
1979 Signalling a return to State consultation on civil liberty
issues, the Fraser government establishes the Ministerial Council on Human
Rights, comprising the Attorneys-General of the Commonwealth, the States
and Northern Territory in an effort to ensure the co-operative implementation
of human rights agreements.(9)
1980 The Fraser government ratifies the International Covenant
on Civil and Political Rights (1966).
1981 The Fraser government establishes the Human Rights Commission
(HRC). Given responsibility for the Racial Discrimination Act, the HRC
has limited powers to investigate complaints and possesses no mandate
over the States.(10)
1981 The Fraser government ratifies the United Nations Covenant
on the Elimination of All Forms of Discrimination Against Women (1979).
1981 The Senate Standing Committee for the Scrutiny of Bills
is first established, primarily for the purpose of alerting the Senate
'to the possibility of the infringement of personal rights and liberties
or the erosion of the legislative power of the Parliament'.(11)
1984 Senator Gareth Evans, Attorney-General in the Hawke government,
drafts a Bill of Rights modelled on the International Covenant on Civil
and Political rights which is designed to ensure the compliance of the
States, act as an interpretative guide to the judiciary and allow the
HRC to investigate complaints against State or Federal governments alleged
to have violated the Bill. Evans' Bill suffers the same fate as Lionel
Murphy's 1973 Bill, and is defeated on States Rights grounds without even
being placed before Parliament.(12)
1984 The Hawke government passes the Sex Discrimination Act,
which implements some sections of the United Nations Covenant on the Elimination
of All Forms of Discrimination Against Women (1979). The Act is not binding
on the States.
1985 Lionel Bowen, Attorney-General and Deputy Prime Minster
in the Hawke government, introduces a much weaker proposal for a Bill
of Rights into the Parliament. Unlike the earlier attempts by Murphy and
Evans, Bowen's Bill does not attempt to bind the States and includes a
five-year cooling off period before existing Commonwealth law can become
inoperative. The Bill also proposes to have a new Human Rights and Equal
Opportunity Commission deal with complaints against State laws. Bowen's
Bill follows the fate of its predecessors, lost in partisan debate and
community concern over centralisation of power.(13)
1986 The HRC is revamped by the Hawke government under the new
title Human Rights and Equal Opportunity Commission (HREOC). Declarations
by the Commission are not legally enforceable and, with minor exceptions,
do not affect State laws.(14)
1986 The Hawke government continues with its program of legislative
protection of rights, passing the Affirmative Action (Equal Employment
Opportunity for Women) Act. The Act further implements the principles
of the International Covenant on the Elimination of All Forms of Discrimination
against Women.(15)
1988 The Hawke government passes the Privacy Act, which implements
Australia's obligations under Article 17 of the International Covenant
on Civil and Political Rights.
1988 Lionel Bowen's four referendum questions are put to the
Australian people. Bowen proposes constitutional amendments to guarantee
'four-year terms' and 'fair and democratic elections', to 'recognise local
government', 'extend the right to trial by jury' and 'freedom of religion'
and 'ensure fair terms for persons whose property is acquired by government'.
The proposals attract only 30% support at the referendum, the worst defeat
of any referendum proposal although the political context in which the
proposals were put forward and the lack of government commitment in large
part explain their failure.(16)
1988 The Constitutional Commission (established in 1986) submits
its final report, recommending the insertion of a new chapter in the Constitution-'Rights
and Freedoms'-modelled closely on the Canadian Charter of Rights and Freedoms
(1982). The Commission recommends against altering or repealing the preamble
to the Australian Constitution.(17)
1991 A Constitutional Convention is held in Sydney to commemorate
the centenary of the first National Australian Convention on Federation
in 1891. The convention's final declaration strongly supports the constitutional
entrenchment of basic democratic rights.(18) The Hawke government ratifies
the First Optional Protocol of the International Covenant on Civil and
Political Rights (1966). This effectively enables Australian citizens
who have exhausted all available domestic remedies to take human rights
complaints to the United Nations Human Rights Committe in Geneva and New
York. The Committee's findings are not automatically incorporated into
Australian law but may be the focus of serious legal attention in the
case of adverse findings.(19)
1992 The Keating government passes the Disability Discrimination
Act, designed to implement the central principles of the United Nations
Declaration on the Rights of Disabled Persons (1975).(20) The High Court
hands down the Mabo decision, overturning the Common Law doctrine of terra
nullius and recognising the existence of native title in Australian
law. Significantly, the judgment of Sir Gerard Brennan insists that 'international
law is a legitimate and important influence on the development of the
Common Law, especially when international law declares the existence of
universal human rights...'(21) Brennan's judgment is a powerful indication
of the High Court's preparedness to be influenced by International Human
Rights covenants when formulating interpretations of Australian law.
In the same year a majority of the High Court in the decision in Australian
Capital Television v The Commonwealth (which rejects the Labor government's
attempts to ban political advertising in the electronic media during federal
elections) finds that there is an implied right in the Australian Constitution
of freedom of speech, or at the very least, freedom of political speech.(22)
The Court's decision is followed by others which adds further weight to
the existence of an implied, but limited, freedom of political discourse
in the (federal) Constitution.(23)
1993 The Report of the Republic Advisory Committee recommends
that any 'change to a republic should include consideration of a more
contemporary preamble', and that the issue 'is relevant to the overall
objective of achieving a viable federal republic of Australia'.(24)
1994 In a significant development, Mr Nicholas Toonen of Hobart,
Tasmania, having exhausted available domestic remedies under Tasmanian
law, lodges the first Australian complaint invoking the first optional
protocol procedure at the United Nations Human Rights Committee in New
York in 1991. In April 1994, the Human Rights Committee upholds Mr Toonen's
complaint against the Tasmanian law which criminalises homosexual acts
between consenting adults in private.(25)
The case arguably provides further evidence that the tide of globalisation
and international law could force de facto Bill of Rights on both
Federal and State governments, if Australian governments do not themselves
introduce domestic rights legislation.
1995 The Keating government's response to the report of the Republic
Advisory Committee (1993), delivered in the form of a parliamentary speech
by Prime Minister Paul Keating ('An Australian Republic-The Way Forward'),
fails to propose any change to the preamble. This decision is in keeping
with the Keating government's 'minimalist' approach to the republican
issue.(26) In response, Opposition Leader, John Howard suggests a Constitutional
Convention as a means of handing the debate over to the people.
Whereas the people of New South Wales, Victoria, South Australia,
Queensland, and Tasmania, humbly relying on the blessing of Almighty God,
have agreed to unite in one indissoluble Federal Commonwealth under the
Crown of the United Kingdom of Great Britain and Ireland, and under the
Constitution hereby established:
And whereas it is expedient to provide for the admission into the
Commonwealth of other Australasian Colonies and possessions of the Queen:
Preamble to the Australian Constitution 1901
The debate on the issue of an Australian republic was invigorated by
the launch of the Australian Republican Movement in July 1991, following
the centenary constitutional convention held in April of that year. Since
then there has been little discussion of the relevance of the preamble
to the republican discussion. The preamble has been ignored or curtly
dismissed as a distraction from the central focus of minimalist republicanism-the
need for a non-monarchical Australian Head of State.(27) The reticence
to incorporate discussion of the preamble is not surprising given that
Australians have traditionally failed to rely on political or constitutional
expressions of national identity. Public apathy and ignorance concerning
the Constitution is the most significant obstacle facing those who wish
to extend the republican debate beyond the narrow confines of nationalist
rhetoric.(28) The preamble, like many other features of the Constitution,
may appear anachronistic and irrelevant to those who are familiar with
the Constitution, but to the bulk of the Australian population, the preamble
is terra incognita.
Nonetheless, among those Australians who do carry the burden of constitutional
knowledge, there is considerable support for the introduction of a new
preamble (see Appendix 4). At meetings convened by the Republic Advisory
Committee in 1993, and in the many submissions received by the Committee,
members of the public expressed strong interest in alteration of the preamble.(29)
The Committee's final report also found that the issue of the preamble
was 'relevant to the overall objective of achieving a viable federal republic
of Australia'.(30) One way of understanding why the preamble is relevant,
not just to the republican debate but to the broader agenda of constitutional
reform in the 1990s, is to examine the purpose behind the formulation
of the current preamble.
The preamble to the Australian Constitution is an appropriate reflection
of the values and priorities which were prevalent at the time of federation.
It contains no inspirational flourishes or rhetorical appeals to individual
liberty. Instead, in dry, measured and calculated prose, it embodies the
three unifying features of federation Australia: loyalty to the Crown,
belief in God and the shared need to provide national unity for white
Australians through the introduction of a federal government. The preamble
had its origins in the National Australian Convention of 1891 and was
further revised at the Australasian Federal Convention of 1897-1898 before
finally being accepted in 1898, after colonial legislatures and petitioners
successfully insisted on the inclusion of the blessing of 'Almighty God'.(31)
Both the Final Report of the 1988 Constitutional Commission and the
report of the Republic Advisory Committee in 1993 referred to Quick and
Garran's elucidation of the eight 'separate and distinct affirmations
or declarations in the preamble':(32)
1. The agreement of the people of Australia;
2. Their reliance on the blessing of Almighty God;
3. The purpose to unite;
4. The character of the union-indissoluble;
5. The form of the union-a Federal Commonwealth;
6. The dependence of the Union under the Crown;
7. The government of the Union under the Constitution; and
8. The expediency of provision for admission of other colonies as States.
As Quick and Garran pointed out, of the above only the third, fifth,
seventh and eighth are found elsewhere in the Constitution. The remaining
four 'have therefore to be regarded as promulgating principles, ideas
or sentiments operating at the time of the formation of the instrument,
in the minds of its framers, and by them imparted to and approved by the
people to whom it was submitted'.(33)
If we accept Quick and Garran's description of the remaining four affirmations
as philosophical principles which represented the broad sentiment of the
people in 1901, then it is clear that these principles are no longer fully
representative of the sentiment of the Australian people one hundred years
later. Indeed, it is now possible to acknowledge that one principle is
historically inaccurate.
The preamble indicates the agreement of the people of Australia to federation.
Yet as we now know, Aboriginal and Torres Strait Islander people were
not consulted and did not give their consent to federation. Furthermore,
except for the colonies of South Australia and Western Australia, Australian
women were unable to vote in the federation referendums.(34) While it
is true that both these features of Australian Federation reflected the
spirit of the age, it is surely untenable that what today would be seen
to be a spirit of racism and sexism should remain unchallenged as a fundamental
constitutional principle in the 21st Century. On a more practical level,
the preamble might also include reference to Western Australia and the
territories. There is no good reason to exclude from formal recognition
in the preamble the more than two million Australian citizens who reside
in these areas.(35) Thus, with or without the 'inevitable republic', there
is a strong case for alteration of the preamble on the above grounds.
For republicans, there is the added incongruity of the current preamble's
expression of the dependence of the union 'under the Crown of the United
Kingdom of Great Britain and Ireland'. Although it would not be necessary
to alter the preamble in the case of the declaration of an Australian
republic, it would hardly be appropriate to remove the British monarch
as Australian Head of State while retaining the language of monarchical
deference contained in the preamble.(36)
The majority of the arguments which can be mounted in support of altering
the preamble revolve around three issues-the republic, Aboriginal reconciliation
and the need to make the Constitution more accurately reflect the language,
values and democratic aspirations of contemporary Australia. They can
be summarised as follows.
Symbolism
For over two centuries, the British monarchy has provided the central
symbolic force of colonial, state and federal Constitutions in Australia.
In addition, the monarchy has served as the legitimising symbol of our
legal and public institutions as well as providing an important bond in
Australia's social fabric.
In the event of Australia becoming a republic, the symbolic role of
the British monarchy in Australia's public culture would cease or at very
least be severely curtailed. The question therefore arises: what would
replace it? Is it sufficient to replace the power mystique and pageantry
of the monarchy merely with 'one of us', an Australian Head of State?
There is a strong case to support the argument that the moral and political
legitimacy of the Australian presidency and the Australian form of Government
would be enhanced by the introduction of a new preamble. A preamble that
was both poetic and pragmatic-a concise, lucid and memorable articulation
of the democratic aspirations and common values which an Australian President
would seek to represent to the people. A new preamble would offer the
President a totem of purpose and definition. This totem would help to
elevate the role of the President and the new republic above the shallow
slogan of 'one of us' as well as serving as a check on presidential power.
In other words, it would clothe the emperor in more than nationalist dress.
Democracy
The current preamble does not express the sovereignty of the Australian
people. It contains no statement of the basic democratic principles which
characterise Australian civil society. In the event of a republic, it
would be beneficial to articulate these principles in a manner which explained
in some small way the positive ideals which give force to the new republican
Constitution. There is evidence to suggest that these ideals have already
been identified in many of the submissions made to the 1988 Constitutional
Commission and the 1993 Republic Advisory Committee:
- Equality of all Australians under the law;
- Tolerance of cultural diversity;
- The equality of men and women;
- Equality of opportunity; and
- Respect for the Constitution and the rule of law.(37)
Rather than relying on the High Court to 'discover' the democratic values
in the Constitution, perhaps it is preferable that the people endorse
a simple statement of the democratic principles which they wish to affirm
in the move to a republic. From this perspective, relying on convention,
tradition and the Common Law is no longer appropriate once the protective
cloak of monarchy is removed from the Constitution. If the 'magic' of
monarchy is to be replaced by republican 'daylight' then the democratic
elements of the new Constitution need to be spelt out.(38) The aristocratic
symbolism of monarchy would then be replaced by the practical symbolism
of democratic sovereignty.
Independence
The present preamble does not reflect the status of Australia as an
independent nation. Instead it reflects 'the origins of the Constitution
as an Act of the British parliament'. The same arguments which form the
raison d'etre of minimalist republicanism-that the British monarchy is
anachronistic in the Australian context and inappropriate for democratic,
multicultural and contemporary Australia-also apply to the preamble. The
current preamble's expression of Australia's dependence 'under the Crown'
(as described by Quick and Garran) was appropriate in 1901 but is not
so the 1990s. Thus, updating the preamble to more accurately reflect Australia's
status as an independent nation is fully in keeping with the rationale
of modern republican philosophy.(39)
Aboriginal Reconciliation
In the last decade, an extensive body of literature has grown up around
the notion of Aboriginal reconciliation. While the focus and conclusions
of this literature vary remarkably, there has been frequent mention of
the role a new preamble might play as a formal instrument in the process
of reconciliation.(40) The complications of any such move are discussed
below, but there appears to be a broad consensus amongst proponents of
change (ATSIC, the Constitutional Centenary Foundation, sections of the
Labor Party and prominent public intellectuals) that any alteration of
the current preamble may include reference to:
- Prior occupation of Australia by Aboriginal and Torres Strait Islander
people;
- Dispossession of traditional lands suffered by Aboriginal and Torres
Strait Islander people after 1788; and
- Recognition of Aboriginal and Torres Strait Islander people as having
distinct cultural status.
In the light of the High Court's Mabo decision in 1992, it would be
difficult to see the process of Aboriginal reconciliation advancing if
the recognition of Aboriginal and Torres Strait Islander people was not
included in any new preamble. In its response to the report of the Republic
Advisory Committee, the Keating government implied that this recognition
should be the main focus of a new preamble.(41)
Arguments against the Introduction of a New Preamble
In 1988, the Constitutional Commission refused to support the alteration
of the preamble on the following grounds:
- The difficulty of isolating the fundamental sentiments which Australians
of all origins hold in common;
- Any attempt to mention one form of equality in the preamble (for example,
sexual equality) would lead to immediate calls for the inclusion of
other equalities (for example, racial, cultural etc.);
- Debate about a preamble would be divisive and a distraction from other
more important issues;
- It is undesirable to graft a preamble on the Constitution so long
after federation. Only if writing a new Constitution would the Committee
countenance drafting a new preamble; and
- The 'real difficulties' in preparing an appropriate recital, especially
with regard to recognition of prior Aboriginal ownership.(42)
While the Committee itself was not overly perturbed by the possible
legal ramifications of a preamble, many submissions indicated their concerns
in this area. Keeping in mind that the political context of the debate
on the preamble has shifted significantly since 1988 (the Committee's
fourth objection, for example, is no longer as persuasive in light of
the constitutional alteration necessary to achieve a republic), it is
now possible to reassess the Committee's objections.
Possible Responses to Arguments against the Introduction of a New Preamble
In the decade since the Committee's report was handed down, Australia
has witnessed a sustained and extensive debate on the issue of an Australian
republic-the High Court has become more activist especially in politically
sensitive areas (for example, the Mabo decision of 1992 and the Nationwide
News decision of 1993).(43) In 1988, the Constitutional Commission feared
a debate on the republic would be divisive, yet this has not proven to
be the case.(44)
The difficulties associated with isolating the fundamental sentiments
which Australians hold in common are certainly real and have been acknowledged
in the Report of the Republic Advisory Committee (1993) and the Civics
Expert Group (1994).(45) On one level, it is patently absurd to suggest
that 18 million people of different cultural backgrounds all share the
same common values. Yet they do share the same continent, the same media,
the same liberal democratic institutions and the same citizenship; and
it is in this area of citizenship that the preamble can play a positive,
educative and unifying role. To some extent the difficulty of articulating
shared values and democratic aspirations is a circular debate. The difficulty
exists because there is no articulation available. If an articulation
were available the difficulty might not exist. One way to overcome the
difficulty is to articulate the basic ideals of Australian democracy,
regardless of the inevitable criticism from various interest groups, and
by so doing provide a pole for the people to clutch-a point of reference,
a meaningful expression of the declaration of a democratic republic. To
do this successfully, the preamble must be couched in simple language.
It should not be too long (the longer it is the more forgettable it will
be) and it should pay attention to the cadences of language. Nor should
it attempt to summarise Australian history, indulge in turgid prose, or
provide a panacea for every social ill. Many of the preambles submitted
to the Constitutional Commission in 1988 and the Republic Advisory committee
in 1993 failed to avoid these mistakes.(46) Seven alternative preambles
written by prominent Australians are included in Appendix 4.
The Constitutional Commission's concerns regarding the recognition of
Aboriginal prior presence in the preamble carry more weight, although
they too have been affected by events since 1988. In 1993 the Republic
Advisory Committee noted that several Commonwealth laws have acknowledged
a prior Aboriginal presence. In 1988 a motion was passed in each chamber
recognising prior occupation, dispossession and dispersal from traditional
lands.(47) The Mabo decision of 1992 overturned the legal foundation upon
which white settlement had taken place in Australia-terra nullius.(48)
Recognition of prior Aboriginal ownership and dispossession in a new preamble
would merely formally acknowledge that which has already been acknowledged
in Parliament and the High Court. Recognition in the preamble of Aboriginal
and Torres Strait Islander people having a distinct cultural status is
more complex. Any recognition may have legal implications relating to
associated issues not directly within the terms of reference of the preamble
such as Aboriginal sovereignty, self-determination, and the concept of
a treaty.
Legal Implications of the Preamble
The legal implications of the preamble, present or new, is one of the
more vexed issues of the preamble debate. The High Court has referred
to the current preamble for guidance on several occasions since federation.(49)
The preamble is not part of the Constitution, it is merely a guide to
the intentions of those who are responsible for it. In the words of Quick
and Garran it can be 'legitimately consulted for the purpose of solving
an ambiguity or fixing the connotation of words which may possibly have
more than one meaning, or determining the scope or limiting the effect
of the Act whenever the enacting parts are, in any of these respects,
open to doubt'.(50)
In his advice to the Republic Advisory Committee in 1993 the Acting
Solicitor-General stated that in the light of recent High Court decisions
[in particular Leeth v the Commonwealth (1992) 174 CLR 455], preambular
declarations undoubtedly carry 'potential legal significance'.(51)
That said, it is also important to recognise that the future legal significance
of a new preamble is contingent upon the course of other reform initiatives
in particular a Bill of Rights. Several scenarios are foreseeable.
- In the event of Australia continuing without a Bill of Rights, the
legal ramifications of a new preamble (while not carrying the same legal
weight as a Bill of Rights) may be more considerable. The nature of
any legal interpretation will be affected by:
- the composition of the High Court;
- the content of the preamble; and
- public familiarity and identification with the preamble.
- In the event of Australia adopting a Bill of Rights which restates
the legally enforceable democratic rights and freedoms held by the Australian
people, (some of which may appear in the form of more generalised aspirations
in the preamble) the potential legal effect of the preamble may be diminished.
However, this will in turn be affected by:
- the composition of the High Court, the wording of the preamble
and public familiarity with the preamble;
- whether the new Bill of Rights is constitutionally entrenched
or merely an act of Parliament;
- the limitations placed on the application of the Bill of Rights
(for example, parliamentary override) and whether the Bill applies
only to the actions of government and public institutions;
- the content of the Bill of Rights-if the Bill of Rights refers
only to civil and political rights while the preamble makes reference
(however obtuse) to economic and social aspirations, the preamble
may be referred to for guidance in those areas not covered by the
Bill of Rights;
- the intentions, timing and political context associated with the
framing of both documents; and
- the unforeseen.
Options for Change
As the Republic Advisory Committee stated in 1993, the options for the
preamble are as follows:
- remove the preamble;
- leave the preamble as it is;
- leave the present preamble as it is but insert a new preamble to the
Constitution itself; and
- bring the preamble up to date.
Option 1 would appear to be unacceptable both politically and philosophically.(52)
There is a strong case for the 'old' preamble to remain out of respect
for the founding fathers and as a means of emphasising the evolutionary
nature of the Constitution. Option 2 could be rejected for reasons which
have been outlined earlier in this paper. Especially in the event of an
Australian republic, to leave the preamble unchanged would in the words
of the Republic Advisory Committee be 'leaving an anachronistic and misleading
introduction to the Constitution'.(53) Option 4 involves the deletion
of certain words and phrases from the existing preamble and the addition
of others. Perhaps this option would be preferable should the Australian
Republic remain 'inevitable', primarily because it would signify the minor
changes involved in bringing the preamble up to date. However, in the
context of a consensus on the republic and Aboriginal reconciliation,
option 3 may be preferable. This option allows the original preamble to
be preserved in full, yet adds those changes deemed to be representative
of the democratic principles which will have (at least partially) motivated
the people to vote in favour of a republic.
How the Preamble Can be Altered
To date there appears little chance of bipartisan support on initiatives
associated with the introduction of a new preamble. There are several
obstacles blocking the path, including the divide between the major parties
on the appropriate processes to ensure Aboriginal reconciliation, including
the traditional reticence of the conservative parties in Australia to
endorse the constitutional articulation of democratic principles and the
likely disapproval of certain State governments. If a consensus were to
emerge on the republican issue either before or after the Constitutional
Convention in 1997, there would be a greater likelihood of achieving consensus
on the question of the preamble.
The process of altering the preamble is also complicated by various
legal technicalities. There is considerable doubt as to whether Section
128 can be employed to alter the preamble. Indeed, any attempt to do so
would go against the orthodox view that Section 128 can only be used to
amend the Constitution itself. (54)
Aside from relying on the unlikely request and consent of all State
governments to Commonwealth amendment of the Constitution Act [under Sub-Section
15(1) of the Australia Act 1986] or risking a High Court challenge
to the employment of Section 128, the advice tendered to the Republic
Advisory Committee by the Acting Solicitor-General in 1993 indicated there
was one remaining alternative. This would involve a referendum under Section
128 requesting the people to confer upon the Commonwealth the power to
amend the Constitution Act via amendment of the Statute of Westminster.
Essentially this would mean that the proposed alterations to the existing
preamble would also be included in the referendum question. This method,
while risking States' rights objections, still seems the most viable and
least complicated means of altering the preamble.(55)
Have any of the colonies ... ever attempted to deprive any
person of life, liberty or property with due process of law? ... People
would say, "Pretty things these states of Australia; they have (to
be) prevented by a provision in the Constitution from doing the grossest
injustice." [Sir John Cockburn, speaking at the 1897 Convention on
Federation](56)
When Andrew Inglis Clark (Tas) and Richard O'Connor (NSW) proposed the
inclusion of a truncated Bill of Rights at the federal conventions in
Adelaide in 1897 and Melbourne in 1898, both motions were lost, albeit
narrowly.(57) From a contemporary perspective, Clark and O'Connor's proposal
to ensure that Australian citizens were not to be deprived of 'life, liberty
or property without due process of law' appears innocuous enough, but
the reasons for its rejection reveal as much about the federation of Australia
as they do about traditional Australian attitudes to the protection of
individual rights and freedoms.
After the American Declaration of Independence in 1776 and the French
Declaration of the Rights of Man and the Citizen in 1791, British perceptions
of the constitutional protection of rights were tainted heavily by images
of violence, anarchy and excessive individualism. The majority of delegates
at the federation conventions in the 1890s were reluctant to endorse a
Bill of Rights, preferring instead to believe that the Common Law, the
good sense of Parliament, convention and the gentlemanly traditions of
utilitarian political culture were sufficient to protect individual rights
and freedoms in Australia.(58) These beliefs were the foundation of the
dominant political and legal view concerning civil liberties in Australia
at least for the first 60 years of federation.(59)
Yet there was also a darker motivation for the founding fathers' rejection
of a Bill of Rights. Delegates were aware that the acceptance of a Bill
of Rights would threaten the legitimacy of existing colonial legislation
discriminating against Chinese. In the words of Sir John Forrest, this
was legislation which prevented 'coloured persons' and 'Asiatic' or 'African
aliens' from 'enjoying the rights of Europeans'.(60) In other words, federation
was contingent upon racial discrimination-White Australia was unable to
countenance enlightenment notions of human equality lest the opportunity
of federation be lost. Until 1967, when the Australian people voted to
end constitutional discrimination against Aboriginal Australians, a Bill
of Rights was, at least in a formal sense, at odds with one of the fundamental
unifying forces of federation-the racial superiority of white British
stock.
Complacency, Political Culture and the Great Australian Quilt
Some critics would argue that because of the dominance of traditional
British views concerning the protection of individual rights and freedoms
in Australia, a complacent attitude towards civil liberties has become
entrenched in Australian political culture. Most often this complacency
takes the form of assertions concerning Australia's history of 'peaceful'
progress and the 'extraordinary solidity and general pervasiveness of
civil liberties' in the post-federation era.(61) Such statements naturally
exclude the well-documented oppression of Aboriginal and Torres Strait
Islander peoples, South Sea Islanders, Chinese and other ethnic groups
at particular periods in Australia's past.(62) One further reason for
the complacency in Australia towards rights protection is the powerful
myth of the pervasive benevolence of the Common Law-enunciated most successfully
by Sir Owen Dixon and Sir Robert Menzies (see chronology).(63) Senator
Lionel Murphy's response to this belief in 1974 probably has not been
bettered, and has since been endorsed by other commentators:
The Common Law does not say we have freedom of speech; it says
we may speak as we wish, so long as what we say is not unlawful. The Common
Law does not say we have the right to freedom of assembly; it says that
people may not be prevented from meeting together unless the law forbids
that meeting.(64)
Murphy's comment suggests that the Common Law is dependent upon parliament
and the individual inclinations of the judiciary. Human rights are 'residual'
concerns subject to prevailing political and social ideology.(65) The
Common Law can be seen to have failed to protect Australian Aborigines
from oppression. Instead, Aboriginal and Torres Strait Islander peoples
have been forced to wait for the Common Law to wake from its slumber.(66)
In more recent times, satisfaction with rights vigilance in Australia
has developed due to the emergence of a patchwork of various State and
Federal initiatives-what might otherwise be called the great Australian
quilt of rights protection.
This quilt of questionable warmth (at least in terms of uniformity)
includes anti-discrimination legislation such as the Racial Discrimination
Act (1975), various Law Reform Commissions, the office of the Ombudsman,
the establishment of special commissions to monitor the observance of
human rights such as the Human Rights and Equal Opportunity Commission,
the Federal Administrative Appeals Tribunal and particular United Nations
instruments on human rights which have been ratified by Australian Federal
governments.(67)
Although these initiatives have considerable significance they are not
comprehensive sources of protection for several reasons:
- The exemption of many areas of activity from their scope;(68)
- Limitations placed on their terms of reference;(69)
- Most are not legally enforceable and their promises are frequently
threatened by executive interference;(70) and
- Their failure to provide consistent normative rules for the judiciary.(71)
While the shortcomings of existing sources of rights protection are
now widely acknowledged, there has been considerable interest shown in
the formulation of a Bill of Rights by the Queensland, Victorian, Northern
Territory and ACT governments.(72) Renewed interest in the Bill of Rights
debate in academic circles has been followed closely by leading judges.
As recently as 1994, Justice Michael Kirby, outlined the most common arguments
for and against the introduction of a Bill of Rights. Kirby's outline
provides a tidy summation of the major strands of the debate on a Bill
of Rights:
Arguments against a Bill of Rights
- The introduction of a Bill of Rights goes against the Australian tradition
of parliamentary sovereignty and the protection of individual rights
through the Common Law;
- A Bill of Rights would politicise the courts;
- A Bill of Rights, by defining rights, would limit rights and soon
be out of date;
- A Federal Bill of Rights may ignore regional differences;
- A Bill of Rights is no guarantee against intrusions into fundamental
rights. The American Bill of Rights, for example, did not protect US
communists from discriminatory legislation in the 1950s; and
- Parliamentary legislation is the most flexible and the most democratic
means of ensuring the protection of individual rights and freedoms.
Arguments for a Bill of Rights
- Historically, parliamentary democracy has proven to be an imperfect
mechanism for the protection of rights in Australia especially minority
rights (for example Australian Aborigines);
- Individual rights and freedoms should be placed 'above politics' and
enshrined in the Constitution;
- The judiciary is the only body which is sufficiently removed from
party politics to protect rights and tackle those difficult and sometimes
divisive issues associated with individual rights which Parliament may
prefer to avoid (the 1992 Mabo decision is one example);
- In multicultural Australia it is desirable, perhaps even urgent, to
articulate 'the basic principles that represent the foundation of the
unity of the nation' in a constitutional Bill of Rights;
- A Bill of Rights would act as a powerful educative tool and, after
a successful referendum, would assist in endorsing the affirmation of
individual rights and freedoms with the legitimacy of the people;
- A Bill of Rights serves to 'empower the powerless' providing a means
whereby minority groups can assert and uphold their rights; and
- Australia is now one of the few countries not to have a Bill of Rights.(73)
In addition, there are signs that the political context of the Bill
of Rights debate has shifted significantly in the last decade-so much
so that many of the juxtapositions which previously characterised the
partisan nature of the debate might now be challenged. There is now a
rational if not political basis for the achievement of bipartisan support
on a Bill of Rights, largely due to the action of three interrelated forces-the
internationalisation of human rights law, a High Court which may continue
to be activist, and as a consequence, the shared need to assert Australian
sovereignty. Developments in other countries such as South Africa, which
has recently embraced a new Constitution, may also provide the impetus
for renewed interest in Australia.(74)
The Internationalisation of Human Rights Law
Our domestic law is increasingly affected by international
law and international conventions... The phenomenon is not confined to
Australia; it is world-wide. And it is associated with the growth of international
or world opinion made possible by the existence of the United Nations,
the proliferation of other world and regional bodies and the sophistication
of modern communications systems. The rise of international opinion has
played a large part in the emergence of fundamental rights as the dominating
political and legal concept in recent decades. [Sir Anthony Mason, 1992](75)
In the post-war period, the notion of individual rights has re-surfaced
as a dominant force in international politics for the first time since
the late 18th century.(76) Spurred on by various United Nations instruments
on human rights which were a belated response to the horrors perpetrated
by fascist governments during the Second World War, as well as the American
Civil Rights movement and the globalisation of economies and mass communication
networks in the late twentieth century, human rights issues have been
entrenched in many constitutions throughout the world.(77) Particularly
relevant to Australia is the establishment of Bills of Rights in the constitutions
of fellow common law countries such as Canada, New Zealand, South Africa
and Papua New Guinea.(78)
Interestingly, moves to create a Bill of Rights in Britain have also
gained ground since the United Kingdom became a party to the European
Convention on Human Rights.(79) Few countries have remained immune to
the pressures of globalisation, yet Australia remains outside the mainstream.
Australia, as Justice Michael Kirby reminds us, is the 'sleeping continent',
somehow pretending that it can remain immune to the trends of internationalisation
which 'basically stem from the opening provisions of the United Nations
Charter'.(80) It had been thought that Australia's adherence to the first
Optional Protocol of the International Covenant on Civil and Political
Rights in 1991 would be the catalyst for a bipartisan approach to a Bill
of Rights.
As a result of Australia's becoming a party to the Optional Protocol,
Australian citizens who allege that they have been denied particular civil
and political rights can, after all domestic remedies have been exhausted,
take their case to the United Nations Human Rights Committee in Geneva
and New York.(81) A successful case was undertaken in 1992 by Mr Nicholas
Toonen of Hobart after he alleged violation of his right to privacy under
Tasmania's anti-sodomy laws.(82) On other occasions, both State and Federal
governments have recently been advised that particular legislation breaches
Australia's obligations under the ICCPR.(83) After the Toonen decision
was handed down the then leader of the Opposition, Alexander Downer, together
with other conservative commentators, criticised Labor for ceding Australian
sovereignty to the United Nations.(84) Downer told the National Press
Club that Australian laws should be interpreted in Australian courts and
Australian parliaments and not through United Nations agencies in New
York.(85)
In the light of Downer's comments, it is worth remembering that the
Fraser government also contributed to the 'ceding of Australian sovereignty'
through its ratification of the two major United Nations Human Rights
covenants.(86) Furthermore, now that Australia is a party to various UN
human rights conventions there is one solution to the sovereignty dilemma,
as explained by Philip Alston in 1994:
The most effective and certainly the most principled way of
diminishing the extent to which Australia is called upon to account to
international supervisory bodies is through the adoption of a Bill of
Rights which enables all alleged violations of international standards
to be adjudicated upon in domestic courts.(87)
Justice (now Chief Justice) Brennan's judgment in the Mabo case [Mabo
v Queensland (No. 2) 1992 175 CLR l at 42] implicitly pointed to a
willingness to create a Bill of Rights by default. Brennan emphasised
that 'international law is a legitimate and important influence on the
development of the Common Law, especially when international law declares
the existence of universal human rights'.(88)
At the time, Justice Brennan's judgement was a powerful indication that
if the High Court was not provided with a democratically endorsed Bill
of Rights it might create a de facto judicial Bill of Rights.(89)
For those who oppose such a development, it is worth while remembering
that for an 'activist High Court', international human rights law may
well become an even more important point of reference for the High Court,
thereby threatening Australian 'sovereignty' to a greater degree.(90)
High Court Activism
…The (High Court's) new emphasis on individual rights
… I attribute to a conscious belief … by the Court that it must
undertake in a more active way the task of protecting the individual against
the state. The Court must have been influenced by the increasing emphasis
on individual rights in other legal systems and by the failure of Parliament
(by statute) and the Australian people (by referendum) to establish a
Bill of Rights. [John Doyle (then Solicitor General of South Australia)
1993](91)
While the High Court has always had philosophical concerns it has not
always sought to express these concerns explicitly. The response of the
High Court of Australia to the internationalisation of human rights jurisprudence
has been decisive. In the early 1990s, the Court shifted from the old
doctrines of legalism to a more active, interpretative realism.(92) This
approach has been characterised by a willingness to assess and explicitly
incorporate prevailing community values in decision making as well as
the stated determination to be guided by International Law in the protection
of civil liberties.(93) As a result, the Court has found implied rights
in the Australian Constitution; which, as Brian Galligan has noted, parallels
an approach championed by Justice Lionel Murphy in dissent a decade earlier.(94)
Murphy had argued for the existence of implied constitutional rights and
spoke openly of the law-making role of High Court judges. Although there
are signs that the present Court may be arresting this trend, it is likely
that the Court's inclination towards implied rights will oscillate.
Concerns that the introduction of a Bill of Rights would result in the
politicisation of the judiciary, the subversion of parliamentary supremacy
and majoritarian democracy and the increase of judicial subjectivism may
have been valid in the era of strict legalism, but after the change in
the role of the High Court, they carry less weight.(95) In fact, many
of these criticisms have been levelled at the Court today and it is not
a Bill of Rights which has been the catalyst but the increased activism
of the High Court.(96) Judges have openly acknowledged their 'political'
role(97)-one which is not 'party political' but which impinges upon the
function of the executive and the legislature by interpreting the law
in new ways.
The High Court's insistence on implied rights in the Australian Constitution
has led to uncertainty and division both within and outside the Court
as to the future course of rights protection in Australia.(98) There are
now calls from the judiciary and leading political scientists for the
Court to be provided with a 'defensible methodology', a more 'proper guide'
and 'general normative rules' which would provide clarity and democratic
legitimacy in human rights jurisprudence in Australia.(99) Australia's
ratification of the United Nations instruments and developments in international
law will continue to play an important role in shaping Australian Common
Law. Adopting a Bill of Rights is one way of ensuring consistency in human
rights protection and might also serve to safeguard Australia's legal
sovereignty.
The Relevance of the Canadian and New Zealand Experience to Australia
The Canadian Charter of Rights and Freedoms (1982) and the New Zealand
Bill of Rights Act (1990), included as Appendices 1 and 2, are interesting
examples from common law countries which have adopted a Bill of Rights.
While the Canadian Charter is entrenched in the Constitution, the New
Zealand Bill of Rights is statutory: in the words of one commentator,
theoretically on a par with the Dog Act 'or any other act of Parliament'.(100)
It is also worth noting that the new South African Constitution (1996)
has incorporated a Bill of Rights. While it is still too early to assess
the impact of the South African Bill, in the light of the coming Constitutional
Convention in Australia in 1997 it is interesting that the South African
people have endorsed a Bill of Rights as a central feature of their process
of constitutional reform.
The different experiences associated with the Bill of Rights in Canada
and New Zealand, however, throw considerable light on the possible ramifications
of a Bill of Rights in Australia. There are several broad areas where
the Canadian and New Zealand experience seems particularly pertinent to
Australia: the focus, content and wording of a Bill of Rights, the issue
of entrenchment and associated limitations on a Bill of Rights, and finally,
the effects of a Bill of Rights on the judiciary, minorities and the 'civic
deficit'.(101)
Focus, Content and Wording
Both the Canadian Charter and the New Zealand rights legislation are
modelled closely on the International Covenant on Civil and Political
Rights. They are concerned only with the actions of government and governmental
bodies and not with the actions of private companies or individuals. In
other words, their aim is to protect the individual from the actions of
the State. Neither charter includes economic, social or community rights
or makes reference to 'duties'. Recent debate in Australia has revealed
a degree of support for variation from this model in three key areas:
the inclusion of 'duties', the inclusion of economic, social and cultural
rights, and the broadening of the bill to extend beyond governmental bodies
to the private sector.(102) In 1994, the issue of 'duties' was raised
by the Civics Expert Report which argued that any articulation of citizens'
rights in Australia should also mention citizens' duties. The NSW Legal
Convention's Bill of Rights recently formulated its draft bill in terms
of duties and corresponding rights. Therefore the Convention's bill includes
both the right to freedom from discrimination and the duty not to discriminate.(103)
Discussion concerning the inclusion of economic, social and community
rights is usually centred on the issue of legal enforcement. Economic
and social rights are not legally enforceable-at least not in the same
manner as civil and political rights. At the moment, participants in the
Australian debate are equally divided over this particular issue.(104)
One compromise, not often considered, is to refer to economic and social
rights as aspirations rather than rights in a new preamble. This would
have the advantage of separating rights from aspirations, using the preamble
and Bill of Rights in tandem.
The other possible variation from the Canadian and New Zealand models
concerns the extension of the Bill's frame of reference beyond government
and public bodies to include the actions of the private sector. The draft
Bill of Rights proposed by the NSW Legal Convention extended to all 'decision
makers' who had the capacity to affect or otherwise influence any individual's
access or entitlement to goods, services, facilities, rights or interests.(105)
While it is true that many decisions affecting the everyday lives of citizens
are made by non-government bodies, the extension of the bill beyond government
would be a significant departure from the American, Canadian and New Zealand
models, and may be much harder to sell politically.(106)
An Entrenched Bill of Rights?
One of the central features of the Bill of Rights debate is the issue
of entrenchment. In New Zealand, although a Select Committee suggested
a constitutionally entrenched Bill of Rights in 1985, this proposal was
defeated due to the fear of increased judicial power. The prospect of
judges invalidating laws passed by an elected parliament was rejected
largely because of the 'entrenched' doctrine of parliamentary supremacy
in New Zealand's political culture.(107) There is an obvious lesson here
for Australia, no matter how strong the arguments for entrenchment may
be (see below): in political terms it will be much easier, at least initially,
to market the greater 'flexibility' of a statutory Bill of Rights. In
New Zealand's case, the 'lower' status of a legislative Bill of Rights
has not proven to be an obstacle to the judiciary's perception of the
Bill of Rights as a 'fundamental constitutional document' which is deserving
of a 'purposive interpretation'.(108) Thus, because of the societal values
which underpin the inherently lofty and aspirational nature of a Bill
of Rights, although the Bill is not constitutionally entrenched it is
unlikely to be perceived as an ordinary statute. The point is perhaps
best made by Paul Rishworth in reference to New Zealand:
The statutory affirmation (of rights and freedoms) by Parliament
has required a judicial response in the context of specific disputes between
citizen and state. That judicial response has a symbolic value. For, as
with other constitutional cases, bill of rights litigation is ultimately
about the type of society we aspire to have.(109)
In a changed international climate, the 'majestic' tone of a statutory
Bill of Rights may be accorded considerable significance in Australia
by the High Court.
In Australia, under Section 109 of the Constitution, in the case of
any inconsistency, a Commonwealth Bill of Rights (unless it specifically
excluded State laws) would also 'prevail over all state laws', a fact
which would be likely to accord it even greater status.(110)
The most powerful argument for the constitutional entrenchment of a
Bill of Rights is that entrenchment protects fundamental rights from the
caprice of parliament, as any alteration to the Bill of Rights can only
be sanctioned by the people through referendum. (In 1988, the Constitutional
Commission recommended that an entrenched Bill of Rights not commence
until three years from the date of royal assent, thereby allowing for
a prior period of adjustment and review.(111)) The evidence in Canada
is certainly suggestive of strong public support for the entrenched Charter
of Rights and Freedoms, although Section 33 of the Charter allows Parliament,
when drafting legislation, to override (for a five-year period) those
parts of the Charter which relate to fundamental rights and freedoms.(112)
Opinion on the merits of an override clause is divided, both in Canada
and Australia.(113) The inclusion of a parliamentary override clause may
make an entrenched Bill of Rights more palatable at a referendum but its
effectiveness is questionable. For example, in Canada and in New Zealand
(where Section 4 of the Bill of Rights theoretically stipulates that any
statute which conflicts with the Bill of Rights Act should prevail) override
clauses have rarely been used, and their insertion sits at odds with the
anti-majoritarian purpose of an entrenched Bill of Rights-namely that
human rights should be beyond the reach of parliamentary majorities seeking
to intrude upon rights for political expedience. It is also worth noting
that override clauses may be invoked by Parliament at the very moment
protection of human rights is most under threat.(114)
The Judiciary and a Bill of Rights
Contrary to the scenario painted by the traditional Bill of Rights critique,
the Canadian and New Zealand experience suggests that there has been no
subversion of parliamentary supremacy by the judiciary. In the view of
one of the leading analysts in Canada, Professor Peter Russell, the Charter
'has not meant that appointed judges have supplanted elected politicians
(or their official advisers) as Canadians principal law makers'.(115)
In New Zealand the courts have interpreted the Bill of Rights Act 'generously',
yet there are no conspicuous examples of this threatening parliamentary
supremacy.(116)
There are, however, several lessons to be learnt from Canada and New
Zealand in relation to the effect of a Bill of Rights on the judiciary.
First, the nature of rights litigation will provide 'a sumptuous smorgasbord'
of 'political, sociological and ethical considerations' for the judiciary-this
is likely to have a stimulating and invigorating effect on the judiciary.(117)
Consequently it is likely that court congestion and delays will increase,
especially in the area of criminal law, where consideration of rights
issues is likely to complicate litigation.(118) The introduction of a
Bill of Rights in Australia would require readjustment of the distribution
of litigation throughout the judicial system, with allowances made in
some areas for greater workload.(119) As Chief Justice Brennan has noted,
a Bill of Rights along Canadian lines would require new 'judicial skills'
with an added emphasis on constitutional issues and consideration of more
complex evidence.(120) In addition the public profile of the judiciary
is likely to be enhanced-although one could argue that this has already
begun in Australia, especially after the Mabo (No. 2) decision in 1992
and the Wik decision on 23 December 1996.(121) Appointments to the High
Court, especially in the case of an entrenched Bill of Rights, may become
more significant and more prone to political exploitation and public criticism.
To avoid these controversies, it may be preferable that a new method of
appointment be countenanced-perhaps along the lines suggested by Justice
Murray Wilcox, whereby any citizen 'could suggest names to a broadly based
committee, containing people able to judge not only legal excellence but
also candidates' community achievements and attitudes'.(122)
Minorities and a Bill of Rights
One of the main arguments employed by 'proponents of a Bill of Rights'
is that the bill would result in greater protection for minority groups
in society.(123) Significantly, when Australia is reviewed, or mentioned
in the context of world human rights, the one consistent criticism is
our failure to adequately protect the rights of Aboriginal Australians.(124)
Chief Justice Brennan, for example, has referred to the greater likelihood
of minority rights being placed at risk in a more ethnically diverse society
such as Australia. A Bill of Rights might therefore be necessary to protect
minorities and the weak against the 'discriminatory exercise of power
by the political branches of government'.(125) Undoubtedly, the symbolic
value of rights can offer a significant source of empowerment to those
who perceive themselves to be outside of the 'mainstream'.(126) In part,
this explains the calls by Father Frank Brennan, ATSIC and prominent supporters
of Aboriginal reconciliation for the inclusion of (collective) Aboriginal
rights in any future Australian Bill of Rights. The special status of
Aboriginal and Torres Strait Islander peoples as indigenous peoples would
then be recognised in both the preamble and the Constitution.(127) However,
the experience in Canada and New Zealand indicates that Australians should
be mindful of one potential pitfall in the protection of minority rights-the
danger that access to the Charter (and the courts) will be dominated by
socially powerful groups wealthy enough to afford the cost of litigation.
As in Canada, major interest groups and particular organisations representing
women, Aboriginal groups and ethnic minorities should be involved in the
public discussion surrounding the formulation of the Bill of Rights.(128)
Furthermore, funding could be provided for the establishment of a 'Court
Challenges Program' similar to that which exists in Canada. This would
allow citizens from disadvantaged sections of society greater access to
litigation procedures involving equality concerns.(129) In Canada, evidence
suggests that the existence of the Court Challenges Program has substantially
increased interest, expertise and sophistication in the exercise of legal
rights by minority groups.(130)
The Preamble, an Australian Bill of Rights and the Civic Deficit
With the development of mass consumption and mass systems of
information, social styles and cultural practices become mixed into an
indefinite medley of tastes and outlooks. With this fragmentation of culture
there also goes a fragmentation of sensibilities, a mixing of lifestyles
and the erosion of any sense of a cogent political project or coherent
political programme, as the lives of individuals become increasingly merely
a collection of discontinuous happenings. [Bryan Turner, 1989](131)
The civic deficit in Australia is widely acknowledged. Australian citizens
are largely ignorant about their Constitution and deeply suspicious of
the political process.(132) Aside from civics education, one means of
reducing these tendencies is to reform the Constitution in a way which
makes it relevant, comprehensible and useful to the concerns of contemporary
Australians.
The introduction of a new preamble to the Australian Constitution and
the formulation of an Australian Bill of Rights may assist in breaking
down the political detachment and cynicism of the Australian people.
At the very least, the debate surrounding these proposals would be invigorating.
Politicians, judges, academics, the media, university tutorials and school
classrooms would be focused on the associated issues of rights, freedoms,
duties and shared values. In short, through extensive discussion of the
many features of Australian democracy the community may 'discover' what
it has in common.
The debate on rights and freedoms would be expanded by the debate on
aspirations and values in the preamble. If successful, both proposals
would ensure continuous public debate-especially when particular litigation
attracted prominence in the media. In this way, a new 'forum' for political
awareness and discussion may be created.
Although the major political parties have quite conflicting views on
these issues, they may be able to agree that the time for formally debating
the various proposals discussed in this paper has arrived. At a time when
judges on the High Court have called for greater uniformity, clarity and
direction in the area of civil liberties there is an ideal opportunity
for a formal bipartisan response. The increasing prominence of human rights
issues in international relations also indicates that Australia's standing
overseas may be enhanced by the introduction of uniform domestic rights
legislation.
The introduction of a new preamble and a national Bill of Rights is
not a panacea for society's ills, but both proposals are deserving of
consideration at the proposed Constitutional Convention in 1997.
- Refer 'Courts and Community Values', Eureka Street, Vol 6,
No 9, November 1996: 32-34 at 33.
- I refer here specifically to notable 'public' attempts. The debate
on a Bill of Rights has been extensively canvassed in academic and political
circles, though not always in relation to the republic debate.
- B. Galligan, A Federal Republic: Australia's Constitutional System
of Government, Cambridge, Cambridge University Press, 1995: 147.
- H. Charlesworth, 'The Australian Reluctance About Rights' in P. Alston
(ed.), Towards an Australian Bill of Rights, Canberra, ANU Centre
for International and Public Law & Human Rights and Equal Opportunity
Commission, 1994: 34.
- Galligan, op. cit.: 149.
- ibid: 140.
- ibid: 152.
- M. Duffy, 'The Internationalisation of Human Rights' in Alston, Towards
an Australian Bill of Rights: 300; and Kirby, 'Implications of the
Internationalisation of Human Rights Law' in Alston, Towards an Australian
Bill of Rights: 270.
- Charlesworth, op. cit.: 42.
- Galligan, op. cit.: 153.
- B. Galligan, 'Political Culture and Institutional Design' in Alston,
Towards an Australian Bill of Rights: 57.
- Charlesworth, op. cit.: 31.
- Galligan, A Federal Republic: 156-7.
- Charlesworth, op. cit.: 36.
- Kirby, op. cit.: 270.
- See Bowen explaining the rationale for his 1985 bill in L. Spender,
Human Rights-The Australian Debate, Redfern, NSW, Redfern Legal
Centre Publishing, 1987: 235.
- Final Report of the Constitution Commission 1988, vol. 1: 20-4, 445-637
and 101-9.
- P.P. McGuinness, Australian, (Constitution Special) April 1
1992: 16.
- Duffy op. cit.: 307.
- ibid: 303.
- Kirby, op. cit.: 296.
- C. Saunders, 'Rights and Freedoms in the Australian Constitution',
Constitutional Centenary, vol. 3, no. 4, December 1994: 10-11.
- ibid.
- An Australian Republic-The Options, vol. 1, The Report
(Report of the Republic Advisory Committee), Canberra, AGPS, 1993: 137.
- Kirby, op. cit.: 286-8.
- An Australian Republic-The Way Forward, Questions and Answers,
Canberra, Department of the Prime Minister and Cabinet, 1995: 19.
- This refers particularly to the leading proponents of minimalist republicanism,
the Australian Republican Movement and the Keating government. See,
for example, An Australian Republic-The Way Forward, Questions and
Answers.
- For more on the extent of public ignorance concerning the Constitution
see 'Whereas the People…': Civics and Citizenship Education
(Report of the Civics Expert Group), Canberra, AGPS, 1994: 13.
- An Australian Republic-The Options, vol. 1, The Report:
137.
- ibid.
- Final Report of the Constitutional Commission, vol. 1, Canberra,
AGPS, 1988: 102.
- ibid.:101.
- ibid.:102.
- A. Twomey, 'The Constitution:19th Century Colonial Office Document
or a People's Constitution?' in The Constitution Papers (Parliamentary
Research Service Subject Collection No. 7), Canberra, AGPS, 1996: 29.
- 'The Western Australian referendum took place on 31 July 1900, after
the Constitution had already been enacted by the Imperial Parliament,
but before it came into force.' ibid.: 36.
- The Republic Advisory Committee concurred with this view. See An
Australian Republic-The Options, vol. 1, The Report: 104-9.
- See, for example, ibid.: 139-41; and Final Report of the Constitutional
Commission, vol. 1:
104-9.
- This refers indirectly to Walter Bagehot's English Constitution (1867),
in which Bagehot suggested that to ensure the survival of monarchy daylight
should not be let in upon magic.
- An Australian Republic-The Options, vol. 1, The Report:
138.
- See for example ibid.: 139-40; Final Report of the Constitutional
Commission, vol. 1: 106-9; and F. Brennan, One Land, One Nation:
Mabo-Towards 2001, St Lucia, University of Queensland Press, 1995:
208-9.
- An Australian Republic-The Way Forward: Questions and Answers,
1995: 19-20.
- Final Report of the Constitutional Commission, vol. 1: 109-10.
- Galligan, A Federal Republic: 181.
- Final Report of the Constitutional Commission, vol. 1: 314-5.
- An Australian Republic-The Options, vol. 1, The Report:
141; and 'Whereas the People…': Civics and Citizenship Education:
14.
- See in particular An Australian Republic-The Options, vol.
1, The Report: 136. The Constitutional Commission's Advisory
Committee on Individual and Democratic Rights produced a preamble which
included unnecessary phrases such as 'Australia is an ancient land'
and 'Australia is a continent of immense extent and unique in the world'.
See also The Report: 140 where the preamble submitted by ATSIC
(modified from Frank Brennan's original) provides an example of a preamble
which is simply too long; or The Report: 141 where the submission
of a preamble by Graham Bradley lapses into paternalism with its assumption
that the people of Australia have enjoyed a century of 'peace and prosperity'-this
was not the case for Aboriginal Australians. See Appendix 3 'Alternative
preambles'.
- An Australian Republic-The Options, vol. 1, The Report:
139-40.
- Mabo v Queensland (1992) 66 ALJR 408.
- See, for example, Final Report of the Constitutional
Commission, vol. 1: 102-3.
- An Australian Republic-The Options, vol. 1, The Report:
135-6.
- ibid.: 136.
- ibid.: 138.
- loc. cit.
- ibid.: 119.
- ibid.: 119-22; and Final Report of the Constitutional Commission,
vol. 1: 120-30.
- E. Kamenka and A. Erh-Soon Tay, 'Affirming the Rights of Man and Citizen:
French Revolutionary Zeal Versus Australian Pragmatism' in Australian
Law and Legal Thinking Between the Decades, (a collection of 33
Australian Reports to the XIIIth International Congress of Comparative
Law presented in McGill University Montreal on 18-24 August 1990), Sydney,
Faculty of Law, University of Sydney, 1990: 291.
- R. Sackville, 'Towards an Australian Charter of Rights', Constitutional
Centenary, vol. 4, no. 4, December 1995: 23.
- H. Charlesworth, 'The Australian Reluctance About Rights' in Alston,
Towards an Australian Bill of Rights: 22. Also
see J. Ely, The Bill of Rights in Modern America, Bloomington,
Indiana University Press, 1993: 4.
- J. Goldsworthy, 'The Constitutional Protection of Rights in Australia'
in G. Craven (ed.), Australian Federation: Towards the Second Century,
Carlton, Melbourne University Press, 1992: 152-8. The Constitution did,
however, guarantee freedom of religion (Section 116), freedom from discrimination
based on state of residence (Section 117), trial by jury for any offence
against the Commonwealth (Section 80) and the guarantee of just acquisition
of property by the Commonwealth (Section 51).
- Sackville, op.cit.: 23. Also see L. Murphy, Why Australia Needs
a Bill of Rights (a reply
to a series of articles by Sir Robert Menzies on the Human Rights Bill
1974), Canberra, AGPS,
1974: 7.
- Crisp quoted in Galligan, A Federal Republic: 135. For further
evidence of complacency see C. Howard quoted by H. Emy in G. Winterton
(ed.), We, the People, St Leonards, Allen and Unwin, 1994: 132;
also G. Moens, 'The Wrongs of a Constitutionally Entrenched Bill of
Rights' in M.A. Stephenson and C. Turner, Australia: Republic or
Monarchy?, Brisbane, University
of Queensland Press, 1994: 253. See also Goldsworthy, op. cit.: 166
and Charlesworth, op. cit.: 21.
- See especially the work of C.D. Rowley and Henry Reynolds; and E.
Thompson, Fair Enough: Egalitarianism in Australia, Sydney, University
of New South Wales Press, 1994.
- Kamenka and Tay, op. cit.: 293; Menzies quoted in Galligan, A Federal
Republic: 140; and H. Gibbs, 'The Legislative or Constitutional
Protection of Human Rights', Constitutional Centenary, vol. 4,
no. 4, December 1995: 26-8.
- Murphy, op. cit.: 3.
- Charlesworth, op. cit.: 26; and S. Gibb and K. Eastman, 'Why are we
talking about a bill of rights?', Law Society Journal, vol. 33,
no. 7 1995: 51. Murphy's view was also supported by the Final Report
of the Constitutional Commission, vol. 1: 418.
- For a recent example of faith placed in the evolutionary nature of
the common law see J. Doyle and B. Wells, 'How Far Can the Common Law
Go towards Protecting Human Rights?' in Alston, Towards an Australian
Bill of Rights: 121.
- Galligan in Alston, op. cit.: 57; Kamenka and Tay, op. cit.: 297 and
M. Kirby, 'Implications of the Internationalisation of Human Rights
Law' in Alston, Towards an Australian Bill of Rights: 270.
- Charlesworth, op. cit.: 38.
- P. Alston, 'An Australian Bill of Rights: By Design or Default?' in
Alston, Towards an Australian Bill of Rights: 5; and Galligan
in Alston, op. cit.: 57.
- Sackville, op. cit.: 24.
- Kirby in Alston, op. cit.: 270; and M. Kirby, 'Mechanisms for the
Recognition and Protection of Rights in Australia', Constitutional
Centenary, vol. 4, no. 1, April 1995: 8.
- See, for example, A Northern Territory Bill of Rights?, Legislative
Assembly of the Northern Territory Sessional Committee on Constitutional
Development Discussion Paper No. 8, March 1995; and Individual Rights
and Freedoms: A Bill of Rights and Other Freedoms for Queensland, the
Implications for Australia-the EARC Report, University of Queensland
Press, 1993. On shortcomings of existing rights legislation see Alston,
op. cit.
- M. Kirby, 'The Bill of Rights Debate', Australian Lawyer, December
1994: 16-21.
- See Appendix 3 for the Preamble to the Constitution of the Republic
of South Africa. Note also that A Bill of Rights forms Chapter 2 to
that Constitution.
- A. Mason, 'Address at the Federation dinner held to mark the 99th
anniversary of the Corowa Conference', Constitutional Centenary,
vol. 1, no. 2, September 1992: 14.
- Goldsworthy, op. cit.: 160-1.
- Ely, op. cit.: 13-14; and Mason quoted in G. Brennan, 'The Impact
of a Bill of Rights on the Role of the Judiciary: An Australian Response'
in Alston, Towards an Australian Bill of Rights: 180.
- Individual Rights and Freedoms, op. cit.: 7.
- Mason, op. cit.: 14; and see, for example, the work of Charter 88
in Britain.
- Kirby in Alston, op. cit.: 268-70.
- It is worth noting that treaties give rise to international, not domestic,
legal obligations. For a treaty to have effect it must be formally incorporated
into law by an Act of Parliament.
- Kirby in Alston, op. cit.: 286.
- ibid.: 285-96; and B. Burdekin, 'The Impact of a Bill of Rights on
Those Who Need it Most' in Alston, Towards an Australian Bill of
Rights: 151, 160-2. Particular examples of legislation which has
been alleged to have breached Australia's international obligations
include:
Crimes (Serious and Repeat Offenders) Sentencing Act 1992
(Western Australia)
longstanding anti-sodomy laws (Tasmania)
1994 Amendments to the Commonwealth Migration Act
As recently as September 1996, the Western Australian parliament refused
to pass legislation prohibiting discrimination on the grounds of sexual
preference.
- Alston, op. cit.: 4.
- ibid.
- See Chronology 1975-1983 below.
- Alston, op. cit.: 10.
- Brennan quoted by Kirby in Alston, op. cit.: 296.
- Alston, for example, refers to this as a Bill of Rights by 'default'
in Alston, op. cit.: 1. Also see Galligan, A Federal Republic:
180.
- See, for example, A. Mason, 'A Bill of Rights for Australia?', Australian
Bar Review, vol. 5, 1989: 79-90; Kirby in Alston, op. cit.: 296-8;
G. Brennan, op. cit.: 177-86, and the majority of contributions to Alston,
Towards an Australian Bill of Rights. Also see Final
Report of the Constitutional Commission, vol. 1: 20-4, and E. Thompson,
'A Washminster Republic', in Winterton, We, the People, 1994:
109-10. Finally see Galligan's data providing evidence for public support
of a Bill of Rights in Galligan, A Federal Republic: 134.
- Quoted in Galligan, A Federal Republic: 186.
- See, for example, Mason quoted in Galligan, A Federal Republic:
161.
- ibid.: 184.
- Murphy argued for the existence of implied Constitutional rights and
spoke openly of the 'law making' role of High Court judges.
- Examples are Moens, op. cit. 233-53, note 6; and Gibbs, op. cit.:
26-8, note 9.
- See Galligan, A Federal Republic: 181.
- See Mason quoted in Galligan, A Federal Republic: 165; Goldsworthy,
op. cit.: 170; and G. Brennan, op. cit.: 183.
- See, for example, C. Saunders, 'Rights and Freedoms in the Australian
Constitution', Constitutional Centenary, vol. 3, no. 4, December
1994: 10-11; and Blackshield, op. cit.:
49-50.
- Individual Rights and Freedoms, op. cit.: 9-10; Galligan, A
Federal Republic: 187; and Kirby in Alston, op. cit.: 270.
- J. Elkind, 'New Zealand's Experience with a Non-Entrenched Bill of
Rights' in Alston, Towards an Australian Bill of Rights: 252.
- The phrase 'Civic Deficit' was employed in the Report of the Civics
Expert Group, 'Whereas the People…': Civics and Citizenship
Education: 13.
- Also relevant to the Australian debate if the fact that the Canadian
Charter has failed to adequately protect the rights of prisoners and
provide for fair acquisition of property. See Wilcox, op. cit.: 212;
and B. Carson, Charter of Rights and Freedoms and the Bill of Rights:
A Comparison, Research Branch of the Canadian Library of Parliament,
May 1988: 7.
- 'NSW Legal Convention Draft Proposal for a Bill of Rights for NSW':
i-iv.
- See, for example, Final Report of the Constitutional Commission,
vol. 1: 479; Gibb & Eastman, op. cit.: 50; Charlesworth, op. cit.:
40; Individual Rights and Freedoms, op. cit.: 408-9; and A
Northern Territory Bill of Rights, op. cit.: 29.
- 'NSW Legal Convention Draft Proposal for a Bill of Rights for NSW':
i.
- See for example Final Report of the Constitutional Commission,
vol. 1: 476, 483. Others such as Charlesworth, op. cit.: 51 conclude
that the Canadian experience suggests an Australian Bill of Rights should
be entrenched.
- Elkind, op. cit.: 235-6.
- ibid.: 252. New Zealand also introduced the Human Rights Act in 1993.
- P. Rishworth in P. Rishworth and G. Huscroft (eds), Rights to Freedoms:
The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993,
Wellington, Brooker, 1994: 77.
- Elkind, op. cit.: 253. The 1960 Canadian (Statutory) Bill of Rights
failed to apply to all levels of government, but the 1982 Charter did
not make the same mistake. See also Carson, op. cit.: 3.
- Final Report of the Constitutional Commission, vol. 1: 470.
- M. Wilcox, 'The North American Experience: A Personal Reflection',
in Alston, Towards an Australian Bill of Rights: 222; also Carson,
op. cit.: 4.
- Final Report of the Constitutional Commission, vol. 1: 492-6,
Wilcox, op. cit.: 221; and Goldsworthy, op. cit.: 174.
- Rishworth, op. cit.: 72; Elkind, op. cit.: 252; and Final Report
of the Constitutional Commission, vol. 1: 494. Of course, both the
New Zealand and the Canadian Charter limit the guarantee of rights and
freedoms to reasonable limits as prescribed by law and a democratic
society.
- P. Russell, 'Canada's Charter of Rights and Freedoms: A Political
Report', Public Law, 1988: 392.
- P. Rishworth, Essays on the New Zealand Bill of Rights Act 1990,
Auckland, Legal Research Foundation, 1992: 8.
- G. Ferguson quoted by G. Brennan, op. cit.: 181.
- Wilcox, op. cit.: 223; and Russell, op. cit.: 386.
- G. Brennan, op. cit.: 182; and Wilcox, op. cit.: 224.
- G. Brennan, op. cit.: 181.
- Wik Peoples v Queensland; Thayorre People v Queensland,
High Court of Australia. (unreported).
- Wilcox, op. cit.: 226.
- See for example Individual Rights and Freedoms, op. cit.: 10; and
A Northern Territory Bill of Rights?, op. cit.: 26. Also Charlesworth,
op. cit.: 45, 53.
- See, for example, C. Humana, World Human Rights Guide, (3rd
edn) New York, Oxford University Press, 1992: 26-8.
- G. Brennan, op. cit.: 179.
- Charlesworth, op. cit.: 50.
- F. Brennan, 'Securing a Bountiful Place for Aborigines and Torres
Strait Islanders in a Modern, Free and Tolerant Australia', Constitutional
Centenary Foundation, 1994: 28-9; and F. Brennan, One Land, One
Nation: 162, 163 & 167.
- Russell, op. cit.: 399; and Goldsworthy, op. cit.: 171.
- Wilcox, op. cit.: 220.
- ibid.: 221.
- Quoted in 'Whereas the People…': Civics and Citizenship Education:
15.
- ibid.: 19.
Whereas Canada is founded upon principles that recognize the supremacy
of God and the rule of law:
Guarantee of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society.
Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Democratic Rights
3. Every citizen of Canada has the right to vote in an election
of members of the House of Commons or of a legislative assembly and
to be qualified for membership therein.
4. (1) No House of Commons and no legislative assembly shall continue
for longer than five years from the date fixed for the return of the
writs at a general election of its members.
(2) In time of real or apprehended war, invasion or insurrection,
a House of Commons may be continued by Parliament and a legislative
assembly may be continued by the legislature beyond five years if
such continuation is not opposed by the votes of more than one-third
of the members of the House of Commons or the legislative assembly,
as the case may be.
5. There shall be a sitting of Parliament and of each legislature
at least once every twelve months.
Mobility Rights
6. (1) Every citizen of Canada has the right to enter, remain in
and leave Canada.
(2) Every citizen of Canada and every person who has the status
of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force
in a province other than those that discriminate among persons primarily
on the basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as
a qualification for the receipt of publicly provided social services.
(4) Subsections (2) & (3) do not preclude any law, program or
activity that has as its object the amelioration in a province of
conditions of individuals in that province who are socially or economically
disadvantaged if the rate of employment in that province is below
the rate of employment in Canada.
Legal Rights
7. Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with
the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search
or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed
of that right; and
(c) to have the validity of the detention determined by way of
habeas corpus and to be released if the detention is not
lawful.
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific
offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against
that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law
in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in case of an offence under military law tried before
a military tribunal, to the benefit of trial by jury where the maximum
punishment for the offence is imprisonment for five years or a more
severe punishment;
(g) not to be found guilty on account of any act or omission unless,
at the time of the act or omission, it constituted an offence under
Canadian or international law or was criminal according to the general
principles of law recognised by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it
again and, if finally found guilty and punished for the offence,
not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the
offence has been varied between the time of commission and the time
of sentencing, to the benefit of the lesser punishment.
12. Everyone has the right not to be subjected to any cruel and
unusual treatment or punishment.
13. Any witness who testifies in any proceedings has the right not
to have any incriminating evidence so given used to incriminate that
witness in any other proceedings, except in a prosecution for perjury
or for the giving of contradictory evidence.
14. A party or witness in any proceedings who does not understand
or speak the language in which the proceedings are conducted or who
is deaf has the right to the assistance of an interpreter.
Equality Rights
15. (1) Every individual is equal before and under the law and has
the right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on
race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability.
(2) Subsection (1) does not preclude any law, program or activity
that has as its object the amelioration of conditions of disadvantaged
individuals or groups including those that are disadvantaged because
of race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
Official Languages of Canada
16. (1) English and French are the official languages of Canada
and have equality of status and equal rights and privileges as to
their use in all institutions of the Parliament and government of
Canada.
(2) English and French are the official languages of New Brunswick
and have equality of status and equal rights and privileges as to
their use in all institutions of the legislature and government of
New Brunswick.
(3) Nothing in this Charter limits the authority of Parliament or
a legislature to advance the equality of status or use of English
and French.
17. (1) Everyone has the right to use English or French in any debates
and other proceedings of Parliament.
(2) Everyone has the right to use English or French in any debates
and other proceedings of the legislature of New Brunswick.
18. (1) The statutes, records and journals of Parliament shall be
printed and published in English and French and both language versions
are equally authoritative.
(2) The statutes, records and journals of the legislature of New
Brunswick shall be printed and published in English and French and
both language versions are equally authoritative.
19. (1) Either English or French may be used by any person in, or
in any pleading in or process issuing from, any court established
by Parliament.
(2) Either English or French may be used by any person in, or in
any pleading in or process issuing from, any court established by
the legislature of New Brunswick.
20. (1) Any member of the public in Canada has the right to communicate
with, and to receive available services from, any head or central
office of an institution of the Parliament or government of Canada
in English or French, and has the same right with respect to any other
office of any such institution where
(a) there is a significant demand for communications with
and services from that office in such language; or
(b) due to the nature of the office, it is reasonable that communications
with and services from that office be available in both English
and French.
(2) Any member of the public in New Brunswick has the right to communicate
with, and to receive available services from, any office of an institution
of the legislature or government of New Brunswick in English or French.
21. Nothing in sections 16 to 20 abrogates or derogates from any
right, privilege or obligation with respect to the English and French
languages, or either of them, that exists or is continue |
