George Williams, Consultant
Law & Bills Digest Group
11 May 1999
Contents
Major Issues
Introduction
Rights in the Australian Constitution
Federal Human Rights Legislation
The
Statutes
The Constitutional Dimension
The Scope for Further Legislation
Attempts at Reform
The 1944 Referendum
The 1967 Referendum
The Human Rights Bill 1973
The Evans and Bowen Bills
The Constitutional Commission and the 1988 Referendum
The 1998 Constitutional Convention
Arguments For and Against
A Gradual Path Forward
Parliamentary Leadership
A Statutory Bill of Rights
Reform of the Committee System
Constitutional Protection in the Longer Term?
Which Rights?
Conclusion
Endnotes
Major
Issues
The Federal Parliament has a central role to
play in the protection of the basic rights of the Australian
people. To date, this role has not been fully realised. While the
Parliament has enacted important legislation such as the Racial
Discrimination Act 1975 (Cwlth), and its committees,
such as the Senate Standing Committee for the Scrutiny of Bills,
determine whether bills trespass unduly on personal rights and
liberties, no statute lists the core rights attached to Australian
citizenship. Neither does the Australian Constitution protect the
basic rights of the Australian people. It does not contain a Bill
of Rights, but only a few scattered provisions, such as the right
to engage in the free exercise of any religion and freedom of
interstate trade.
The lack of an Australian Bill of Rights
reflects the views of the framers of the Australian Constitution
expressed in the 1890s. The prevailing view was that Australia did
not need a Bill of Rights because basic freedoms were adequately
protected by the common law and by the good sense of elected
representatives, as constrained by the doctrine of responsible
government. It is arguable, that nearly one hundred years after the
Australian Constitution came into force, a Bill of Rights would
make a positive contribution to the modern Australian State. Such
an instrument could enhance Australian democracy by expressing the
core rights of the Australian people, such as the right to vote and
freedom of expression, as well as promoting tolerance and
understanding in the community of issues such as cultural and
racial diversity. The merit of this argument is reflected in the
recent enactment of a Bill of Rights by nations that had previously
relied upon the common law tradition, such as Canada, New Zealand
and the United Kingdom.
There have been many attempts to bring about a
Bill of Rights for Australia. These have been either in the form of
a statutory Bill of Rights enacted by the Federal Parliament or as
amendments to the Australian Constitution. Every attempt has
failed. Most recently, the 1988 attempt to amend the Australian
Constitution to extend freedoms such as religious freedom gained
the lowest 'Yes' vote ever recorded in a national referendum.
The record of failed reform in this area, as
well as recent decisions of the High Court that have held that
certain freedoms can be implied from the Australian Constitution,
demonstrate the need for parliamentary leadership in any future
attempt to bring about a scheme of rights protection. An attempt to
introduce an Australian Bill of Rights should not be based upon
judicial innovation. Instead, it should be built upon the
commitment and participation of the Australian people and their
elected representatives. Hence, reform that seeks to bring about a
statement of the rights of the Australian people should be
facilitated by the Federal Parliament, and not by the courts. This
process might be initiated by convening a joint parliamentary
committee or a special commission consisting of both parliamentary
and non-parliamentary members. This body might examine models such
as the Human Rights Act 1998 (UK) and the New
Zealand Bill of Rights Act 1990, to determine whether
a modified form of either statute would be appropriate for
Australian conditions and the extent to which the parliamentary
committee system could play a role under such a statute. The body
should also be empowered to identify core rights and freedoms
consistent with the values of contemporary Australians.
The 1988 referendum demonstrated that any move
to bring about an Australian Bill of Rights should follow a gradual
and incremental path. Certain core rights should be protected
before others, and then in legislation, subject to a legislative
override, before any constitutional entrenchment. This approach is
a pragmatic means of protecting a limited range of the fundamental
rights of the Australian people. Importantly, this approach would
allow the oversight of the Federal Parliament at every step and
would maximise the opportunity to create a workable balance between
enabling the judiciary to foster the rights of Australians and not
vesting misplaced faith in the courts to solve Australia's pressing
social, moral and political concerns.
Introduction
The role that the Federal Parliament can play in
the protection of human rights has been frequently neglected.
Instead, attention has tended to focus upon the possibility of a
Bill of Rights incorporated in the Australian Constitution and upon
the High Court's finding that rights can be implied from the
current document. This should not be surprising. Since 1988,
Australian courts and not parliaments, have taken the lead in the
protection of human rights under Australian law. However, this
cannot be sustained indefinitely, lest undue stress be placed upon
the structure of government and the separation of powers created by
the Constitution.
In 1988, the Australian people voting at a
referendum defeated proposals for new rights in the Constitution.
The results were poor, with a national 'Yes' vote ranging from 30
to 37 percent. In the decade since, the parliamentary process has
been largely silent on a Bill of Rights. This vacuum has been
filled by the courts, which have responded to developments such as
the emergence of Bills of Rights in nations including Canada and
New Zealand and the creation of an international Bill of Rights in
treaties and conventions. The High Court has lead the way in
limiting the legislative power of Australian parliaments by
recognising a constitutionally protected freedom of political
communication,(1) as well as other rights such as a right to
procedural fairness in the exercise of judicial power.(2) Some
individual judges have even interpreted the Constitution as a
document embodying many rights, indeed almost an implied Bill of
Rights.(3)
However, the Constitution was not drafted to
include a Bill of Rights. To interpret it as containing a general
scheme of protection for fundamental freedoms would compromise the
legitimacy of the High Court as the arbiter of the Constitution. It
would also compromise the role of the Federal Parliament as the
only body able to initiate and the Australian people as the only
body able to sanction changes to the text of the Constitution under
section 128 of the instrument.(4) In such circumstances, an
effective scheme of rights protection can only be brought about by
a process that has the Federal Parliament at its centre.
Rights
in the Australian Constitution
Although the Australian Constitution does not
contain a Bill of Rights, it does guarantee some important
freedoms. Most significantly:
-
- section 80 guarantees the right to trial by jury (although the
High Court has severely limited the protection offered by this
provision(5))
- section 116 provides for a range of religious freedoms,
including the right to engage in the free exercise of any religion
- section 117 prohibits the imposition of 'any disability or
discrimination' on account of State residence
- section 92 provides that 'trade, commerce and intercourse among
the States ... shall be absolutely free', and
- as a consequence of section 51(xxxi), the Commonwealth may only
acquire property on 'just terms'.
It is apparent from this list that the few
rights that are listed in the Constitution are scattered about the
text and are ad hoc rather than comprehensive. The result is that
many basic rights receive no constitutional protection. This is
obvious from a quick cross-reference between the Australian
Constitution and other instruments, such as the Canadian Charter of
Rights and Freedoms 1982. For example, the text of the Australian
Constitution does not include anything amounting to a freedom from
discrimination on the basis of sex(6) or race, and, while the
Constitution has been interpreted to protect freedom of political
communication,(7) it lacks a more general right of free speech. The
Constitution does not even contain an express guarantee of the
right to vote.
Federal Human Rights Legislation
The
Statutes
There are many statutes at both the Commonwealth
and State level that protect certain human rights, although there
is no one statute that sets out the basic rights and freedoms of
the Australian people. Human rights legislation may play a separate
complementary role even where a constitution contains a Bill of
Rights. While constitutional rights are generally only concerned
with imposing limitations upon governmental action, human rights
legislation commonly also establishes rights and obligations as
between private individuals, such as between employer and employee
or between landlord and tenant. This means, for example, that the
enactment of the Canadian Charter of Rights and Freedoms in 1982,
or even the New Zealand Bill of Rights Act 1990,
has not diminished the importance of statute law in either
Canada(8) or New Zealand.(9)
The most significant Federal rights orientated
legislation lies in the area of anti-discrimination
legislation.(10) Commonwealth legislation includes the Racial
Discrimination Act 1975 (Cwlth), the Sex
Discrimination Act 1984 (Cwlth)(11) and the
Disability Discrimination Act 1992 (Cwlth). These
Acts operate throughout Australia and are enforced, to the extent
possible given the separation of powers in the Australian
Constitution,(12) by the Human Rights and Equal Opportunity
Commission.(13) In some instances the scope of this legislation is
very broad. For example, section 9(1) of the Racial Discrimination
Act 1975 (Cwlth) provides:
It is unlawful for any person to do any act
involving a distinction, exclusion, restriction or preference based
on race, colour, descent or national or ethnic origin which has the
purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of any human right or
fundamental freedom in the political, economic, social, cultural or
any other field of public life.
The impact of such legislation should not be
overstated. It is arguably inadequate in dealing with problems of
systematic discrimination and in promoting substantive, as opposed
to merely formal, equality.(14) In addition, the parallel
provisions to section 9(1) of the Racial Discrimination Act in the
Sex Discrimination Act and Disability Discrimination Act are more
limited as they only allow a complaint to be made on more specific
grounds. For example, the Sex Discrimination Act lists protected
grounds including sex, marital status and pregnancy and prohibits
discrimination in fields such as employment, education,
accommodation and the provision of goods and services. The Sex
Discrimination Act also contains a number of exemptions, such as in
relation to religious, charity and voluntary bodies, competitive
sport and tribunal decisions.
Perhaps the most significant weakness of Federal
anti-discrimination legislation is that it is subject to amendment
or repeal by subsequent Federal legislation. Once the Federal
Parliament has bestowed a right or entitlement in a statute, it is
equally competent, under the doctrine of parliamentary sovereignty,
to take such a right away.(15) However, despite this clear legal
position, significant political problems may arise from any such
move. This was demonstrated by the political difficulties
experienced by the Howard Government, in seeking to enact a
response to the High Court's decision in Wik Peoples v
Queensland(16) that arguably lessened the protection offered
by the Racial Discrimination Act.(17)
The Constitutional
Dimension
The constitutional validity of Federal
anti-discrimination legislation mainly depends upon the
Commonwealth's power to legislate with respect to 'external
affairs' under section 51(xxix) of the Constitution. In the
Tasmanian Dam Case(18) and in subsequent decisions,(19) the High
Court has held that this power enables the Federal Parliament to
pass legislation to implement obligations that it has incurred by
becoming a party to international instruments such as treaties and
covenants. It may implement such instruments to the extent that its
laws are 'capable of being reasonably considered to be appropriate
and adapted' to meeting the treaty obligation.(20) If there is not
sufficient conformity, or proportionality, between the law and the
obligation, the law will be invalid. The Court has shown
flexibility in leaving the scope and means of implementation to
Parliament. For example, the Racial Discrimination Act relies upon
the International Convention on the Elimination of All Forms of
Racial Discrimination(21), the Sex Discrimination Act upon the
Convention on the Elimination of All Forms of Discrimination
Against Women, and the Disability Discrimination Act upon
International Labour Organisation Convention 111-Discrimination
(Employment and Occupation) Convention, the International Covenant
on Civil and Political Rights 1966 and the International Covenant
on Economic, Social and Cultural Rights 1966.
Commonwealth anti-discrimination legislation has
another important constitutional dimension. Where Federal
legislation is inconsistent with State legislation, it renders the
State legislation 'invalid' in accordance with section 109 of the
Constitution.(22) The width of the Commonwealth's
anti-discrimination legislation, together with the broad
interpretation given to section 109 of the Constitution by the High
Court, means that there is significant scope for such legislation
to protect human rights, at least as against action by the States
and Territories. Sir Harry Gibbs, a former Chief Justice of the
High Court, commented that in section 9 of the Racial
Discrimination Act 'we may already have what appears to be a bill
of rights, limited it is true in scope, which is effective[ly]
entrenched against the States'.(23) This has proved correct in the
field of native title, where inconsistency with the Racial
Discrimination Act rendered inoperative legislative attempts by the
Queensland and Western Australian Governments to extinguish or
limit the native title held by indigenous peoples in their
State.(24) It is also true of the Human Rights (Sexual Conduct)
Act 1994 (Cwlth), section 4(1) of which provides:
'Sexual conduct involving only consenting adults acting in private
is not to be subject, by or under any law of the Commonwealth, a
State or a Territory, to any arbitrary interference with privacy
within the meaning of Article 17 of the International Covenant on
Civil and Political Rights.' Section 4(1) was clearly designed to
override, under section 109 of the Constitution, sections 122 and
123 of the Criminal Code Act 1924 (Tas), which
made homosexual sexual activity between consenting adult males a
crime. A matter was brought before the High Court to test whether
the Commonwealth law was effective in achieving this. However,
before the High Court could decide the issue, the provisions were
repealed by the Tasmanian Parliament.(25)
The Scope for Further
Legislation
Statutes such as the Racial Discrimination Act,
the Sex Discrimination Act and the Disability Discrimination Act
demonstrate the important role that the Federal Parliament has
already played in the protection of human rights. However, these
statutes go only a small way to meeting Australia's international
obligations under treaties such as the International Covenant on
Civil and Political Rights 1966. Further opportunities exist for
the Federal Parliament to exercise its constitutional powers,
through legislation and other means, to foster the protection of
basic rights. To date, the protection provided is ad hoc and of
limited reach in focussing upon discrimination on the basis of
race, sex or disability. There is therefore scope for the
Parliament to enact a regime of rights protection under its power
over 'external affairs' that would protect other basic rights
listed in the International Covenant on Civil and Political Rights
1966 and the International Covenant on Economic, Social and
Cultural Rights 1966, such as the freedoms of speech, assembly and
movement.
Attempts at Reform
Several States and Territories have made
faltering steps towards enacting a Bill of Rights. Despite several
reports advocating a Bill of Rights,(26) and even the introduction
of such Bills into State Parliaments,(27) the necessary State or
Territory legislation has yet to be passed. At best, State or
Territory statutes have recognised rights on an ad hoc basis, such
as the right of peaceful assembly in the Peaceful Assembly
Act 1992 (Qld). This has left much of the focus for
change at the Federal level.
There have been several attempts by the Federal
Parliament to bring about a statutory Bill of Rights or to amend
the Constitution to recognise new basic freedoms.(28) Amendment of
the Constitution is provided for by means of a referendum under
section 128. A referendum proposal must be passed by an absolute
majority of both houses of the Federal Parliament, or by one House
twice, and then by a majority of the people and by a majority of
the people in a majority of the States (that is, in at least four
of the six States).(29) Forty two proposals, only a few of which
have concerned human rights, have been put to the Australian people
under section 128. Of these, only eight have been passed.(30)
The 1944 Referendum
In 1942 it was proposed at the Constitutional
Convention held in Canberra that the Commonwealth be given a series
of new powers. Such powers were to include the power to make laws
with respect to:
carrying into effect the guarantee of the four
freedoms, that is to say:
(i) freedom of speech and expression
(ii) religious freedom
(iii) freedom from want, and
(iv) freedom from fear.(31)
This proposal would not have amounted to new
guarantees of rights, but would have given the Commonwealth the
power to legislate to guarantee such rights from abrogation by
State legislation. Under section 109 of the Constitution,
inconsistent State legislation would have been rendered
inoperative.
This provision did not emerge in the proposal
that went to the people in a referendum held on 19 August 1944.
Instead the referendum proposal put to the people after being
passed by the Federal Parliament was that the Constitution be
amended to grant the Commonwealth fourteen new heads of power over
post-war reconstruction. The proposal also sought to insert
guarantees of speech and expression as well as extend the guarantee
of religious freedom in section 116 to the States.(32) These powers
and guarantees would only have operated for a period of five years.
The referendum was lost on the national vote with a 45.39 per cent
'Yes' vote to a 53.30 per cent 'No' vote. It received a majority
'Yes' vote in only two States.
The 1967 Referendum
The referendum that has received the highest
'Yes' vote was a proposal put to the people on 27 May 1967. That
referendum gained the support of 89.34 per cent of voters and was
carried overwhelmingly in every State.(33) Previously, section
51(xxvi) of the Constitution had empowered the Parliament to make
laws with respect to: 'The people of any race, other
than the aboriginal race in any State, for whom it is deemed
necessary to make special laws'. The 1967 referendum deleted the
words in italics. It also repealed section 127 of the Constitution,
which had provided: 'In reckoning the numbers of the people of the
Commonwealth, or of a State or other part of the Commonwealth,
aboriginal natives shall not be counted'.
Although these changes to the Constitution have
been popularly seen as granting Aboriginal people 'equal rights'
and in particular the right to vote,(34) this is not correct. The
right to vote in Federal elections had been denied to Aboriginal
people by section 4 of the Commonwealth Franchise Act 1902
(Cwlth), and, even where Aboriginal people might have been entitled
to vote under section 41 of the Constitution,(35) in practice the
vote was denied to them.(36) This was reversed and the franchise
extended to Aboriginal people by amendments to the Commonwealth
Electoral Act 1918 (Cwlth) made in 1962,(37) although
even then it was not compulsory for Aboriginal people to enrol to
vote. While the 1967 changes to the text of the Constitution
extended the races power to Aboriginal people and repealed the
discriminatory section 127, they did not actually grant Aboriginal
people any rights. Indeed, it remains unclear whether the extension
of the races power in section 51(xxvi) to Aboriginal people gave
the Federal Parliament the power to legislate for the detriment, as
well as the benefit, of Aboriginal people.(38)
The Human Rights Bill 1973
Despite the success of the 1967 referendum, the
next two attempts to bring about greater protection for fundamental
rights came in the form of statutory Bills of Rights. In 1973
Senator Lionel Murphy, as Attorney-General in the Whitlam Labor
Government, introduced the Human Rights Bill 1973 (Cwlth) into the
Federal Parliament. The Bill sought to implement the International
Covenant on Civil and Political Rights 1966 in Australia and would
have protected a range of rights such as freedom of expression,
freedom of movement, the right to marry and found a family and
individual privacy.(39) It even sought to prohibit 'Any propaganda
for war'.(40) Murphy promoted the Bill on the basis that the
Constitution provides scant protection for rights, arguing that
'although we believe these rights to be basic to our democratic
society, they now receive remarkably little legal protection in
Australia'.(41) He stated:
What protection is given by the Australian
Constitution is minimal and does not touch the most significant of
these rights ... Ideally, in my view, a Bill of Rights should be
written into the Australian Constitution ... [T]he enactment of
this legislation will be a significant milestone in the political
maturity of Australia. It will help to make Australian society more
free and more just.(42)
The rights listed in the Bill would have
overridden inconsistent State legislation under section 109. The
Bill provided that Commonwealth legislation would also be
ineffective if it breached any of the rights listed in the Bill
unless the Commonwealth statute expressly provided that it was to
operate notwithstanding the Human Rights Bill.(43) It also went
further than subsequent attempts at statutory Bills of Rights in
one critical respect. The rights listed could be enforced not only
against governmental action, but also against private action.(44)
The Human Rights Bill met strong opposition and was never enacted,
lapsing with the prorogation of Parliament in early 1974. Murphy
was appointed soon after to the High Court, where he broadly
interpreted the express rights in the Constitution and held that a
number of other rights could be implied by the instrument.(45)
The Evans and Bowen Bills
The failure of the Human Rights Bill did not end
attempts to bring about rights protection by Federal implementation
of international instruments. The Whitlam Government, for example,
was successful in enacting the Racial Discrimination Act, while the
Hawke Labor Government enacted the Sex Discrimination Act. Senator
Gareth Evans, as Attorney-General in the Hawke Government, sought
to take up where Murphy had left off in promoting a statutory Bill
of Rights. In 1983 he oversaw the drafting of a Bill of Rights Bill
that, like its 1973 predecessor, would have implemented
international rights instruments. However, the 1983 model was
weaker than its 1973 predecessor in several ways,(46) most
significantly in that it would only have applied to governmental
action, whereas the Murphy Bill would have applied to any action
that infringed the protected rights. Although the Evans Bill was
given Cabinet support, it was not introduced into Parliament.
Attorney-General Lionel Bowen replaced Evans after the December
1984 Federal election. After being redrafted and its operation
watered down,(47) the Bill was introduced into the Federal
Parliament in November 1985 as the Australian Human Rights Bill
1985 (Cwlth). It was passed by the House of Representatives but
failed to gain majority support in the Senate. Encountering strong
opposition, the Bill was finally withdrawn in November
1986.(48)
The Constitutional Commission and the 1988
Referendum
The Bills promoted by Murphy, Evans and Bowen
sought to enact a statutory Bill of Rights. In the wake of the
failure of the Bowen Bill, the Hawke Government changed tack. It
established the Constitutional Commission in December 1985 to
report on the revision of the Australian Constitution in order,
inter alia, to 'ensure that democratic rights are guaranteed'.(49)
The Commission was assisted by an Advisory Committee on Individual
and Democratic Rights under the Constitution. This Committee
reported in 1987.(50) It did not recommend a Bill of Rights as
such, but recommended the insertion of several new rights scattered
throughout the Constitution. Overall, the proposal was a relatively
modest one. While it proposed new rights such as 'a right to a
speedy trial'(51) and a right to vote, rather than suggesting that
the Constitution should guarantee freedom of expression generally,
the Committee found that it should only protect expression
'concerning government, public policy, and administration, and
politics'.(52) Moreover, it recommended that under a new section
117A a Commonwealth or State Parliament should be able to abrogate
the rights listed in the Constitution by passing legislation
expressly stating that a statute was to 'operate notwithstanding'
the constitutional guarantee.(53)
The Constitutional Commission responded in an
interim report in April 1987,(54) in which it made recommendations
to expand the scope of the express rights already in the
Constitution, but also foreshadowed the need for wider change. For
example, it was recommended that the protection of religious
freedom in section 116 of the Constitution be extended to laws
passed by the States and Territories. The Commission's final report
was provided in June 1988,(55) and was far more ambitious. It
proposed significantly greater protection for rights by
constitutional means than had its Advisory Committee. The
Commission recommended that a new Chapter (Chapter VIA - Rights and
Freedoms)(56) be inserted into the Constitution, containing a wide
range of fundamental rights drawn heavily from the Canadian Charter
of Rights and Freedoms.(57) It also recommended that a person whose
rights were breached should be able to gain an appropriate remedy
in the courts. The Commission rejected the limited guarantee of
expression proposed by its Advisory Committee, and instead
recommended a freedom of expression not limited as to content.(58)
The Commission also rejected the insertion of a provision that
would allow the Commonwealth or the States to pass legislation
'notwithstanding' a guarantee in the Constitution. A majority of
the Commission found that a power to 'opt-out' or override
constitutional guarantees 'is inconsistent with the whole process
of entrenching rights in the Constitution'.(59)
Bowen had requested that the Commission provide
an interim report so that a referendum to amend the Constitution
could be held in 1988, the bicentenary of white settlement of
Australia. Accordingly, after the interim report had been provided,
but before the Commission had completed its final report, the Hawke
Government announced that it would initiate constitutional change.
Legislation was introduced to this effect on 10 May 1988, with four
proposals put to the Australian people on 3 September 1988. The
proposals were derived, with some variations,(60) from the
recommendations of the Constitutional Commission in its interim
report. The first and third proposals concerned four-year maximum
terms for the Federal Parliament and recognition of local
government, respectively. The second proposal sought to guarantee
'one vote, one value' by requiring that the population count in
each electorate not deviate by more than 10 per cent. This proposal
would also have inserted a right to vote into the Constitution.(61)
The fourth proposal also sought to guarantee basic freedoms, but
only by extending the operation of existing guarantees in the
Constitution.(62) Section 80 would have been repealed and replaced
with a provision guaranteeing trial by jury for offences under
Commonwealth, State and Territory laws 'where the accused is liable
to imprisonment for more than two years or any form of corporal
punishment'. New sections 115A and 115B would have extended the
guarantee of 'just terms' for any 'acquisition of property' to
State laws and laws made in respect of the Territories by the
Commonwealth under section 122 of the Constitution. Finally,
section 116 would have been deleted and replaced with a section
guaranteeing the religious freedom already spelt out in section 116
not just in regard to Commonwealth laws but also in respect of laws
passed by a State or Territory.
All four proposals were defeated nationally and
in every State. For the proponents of change, the results were
dismal. The highest national 'Yes' vote for any of the proposals
was 37.10 per cent, which was in respect of the proposal on 'one
vote, one value'. The fourth proposal received an astonishingly low
vote, the lowest of any of the proposals. Nationally, 30.33 per
cent of voters registered a 'Yes' vote, while 68.19 per cent voted
'No'. This was the lowest 'Yes' vote ever recorded in Australia. In
South Australia the 'Yes' vote was only 25.53 per cent, while in
Tasmania it was 25.10 per cent. The failure of the 1988 referendum
undermined any move to insert other rights into the Constitution or
to implement the final report of the Constitutional Commission.
The 1998 Constitutional
Convention
The failure of the 1988 referendum was a factor
in the lack of headway on rights issues at the 1998 Constitutional
Convention.(63) That Convention was called by the Federal
Government to debate an Australian republic. It was premised on a
restricted view of what it means to be a republic by being based
upon the assumption that Australia would become a republic once
there is an Australian as Head of State. The focus of the
Convention was on change to the symbols and traditions of the
Constitution. Although some delegates were elected to the
Convention on the basis that Australia could not be said to be a
republic unless the Constitution were to protect fundamental
freedoms, there was little support for the canvassing of rights
issues at the Convention. This was due to the agenda of the
Convention being limited to issues concerning whether, when and how
Australia might make the transition to a republic. It was also due
to the belief of many republicans at the Convention, who might
otherwise have supported a Bill of Rights, that to consider the
republic and a Bill of Rights concurrently would be to load the
republican option with a millstone at any subsequent
referendum.
There was, however, some recognition at the 1998
Convention of the need to protect basic rights. The Communique of
the Convention(64) recognised the need to incorporate a new
preamble to the Constitution in the event of a shift to a republic.
It was agreed that this preamble should include, among other
things, affirmation of the rule of law and acknowledgment of the
original occupancy and custodianship of Australia by Aboriginal
peoples and Torres Strait Islanders. The Convention left open
whether the following should also be recognised: affirmation of the
equality of all people before the law; recognition of gender
equality; and recognition that Aboriginal people and Torres Strait
Islanders have continuing rights by virtue of their status as
Australia's indigenous peoples. Any force such provisions might
have had as an aid to constitutional interpretation was muted by
the decision of the Convention that the preamble should be of
symbolic relevance only, and should not have any legal effect. To
this end, it was resolved that Chapter III of the Constitution
should be amended to state that the preamble could not be used to
interpret other provisions of the Constitution.
The second way in which the need for greater
change was reflected at the Convention was that the delegates
supported an ongoing constitutional review process. The Convention
resolved that, if a republican system of government were to be
introduced by referendum, at a date not less than three years or
more than five years thereafter, the Commonwealth Government should
convene a further Constitutional Convention. This Convention would
review the operation and effectiveness of the republican system of
government introduced by a constitutional referendum, as well as
address any other matter related to the operation of the Australian
system of government under republican arrangements, including the
rights and responsibilities of citizenship and constitutional
aspects of indigenous reconciliation. If the Australian people
support a republic at a referendum, this ongoing constitutional
review process might be an appropriate forum in which to debate the
merits of an Australian Bill of Rights.
Arguments For and Against
There are strong arguments for and against a
Bill of Rights for Australia. The most significant arguments are
set out below.(65)
The main arguments for a Bill of Rights are
that:
-
- Australian law affords inadequate protection to fundamental
freedoms
-
- it would give recognition to certain universal rights
-
- it would give power of action to Australians who are otherwise
powerless
-
- it would bring Australia into line with the rest of the
world
-
- it would meet Australia's international obligations
-
- it would enhance Australian democracy by protecting the rights
of minorities
-
- it would put rights above politics
-
- it would improve government policy making and administrative
decision making
-
- it would serve an important educative function, and
-
- it would promote tolerance and understanding in the
community.
The main arguments against a Bill of Rights
are that:
-
- rights are already well protected in Australia
-
- the political system itself is the best protection of rights in
Australia
-
- it would be undemocratic to give unelected judges the power to
override the judgment of a parliament
-
- it would politicise the Australian judiciary
-
- it would be very expensive given the amount of litigation it
would be likely to generate
-
- it would be alien to the Westminster tradition of parliamentary
sovereignty
-
- it would actually restrict rights that is, to define a right is
to limit it
-
- it would ignore legitimate differences between different
regions of Australia
-
- rights listed in constitutions or statutes actually make little
or no difference to the protection of fundamental freedoms
-
- it would be unnecessary as the High Court is already protecting
rights through its interpretation of the Constitution and its
development of the common law, and
-
- it would be unable to take account of changing conceptions of
rights and would protect some rights (for example, the right to
bear arms) that might not be so important to future
generations.
In 1967 Sir Robert Menzies argued that 'the
rights of individuals in Australia are as adequately protected as
they are in any other country in the world'.(66) His position was
that Australia did not need a Bill of Rights, as basic freedoms
were adequately protected by the common law and by the good sense
of elected representatives as constrained by the doctrine of
responsible government. This reflected the views of the framers of
the Australian Constitution expressed in the 1890s. Sir Owen Dixon,
a former Chief Justice of the High Court, suggested that the
framers questioned why 'doubt be thrown on the wisdom and safety of
entrusting to the chosen representatives of the people ... all
legislative power, substantially without fetter or
restriction'.(67) For these, and other, less acceptable, reasons
(notably the desire to enable the States to pass laws that
discriminated in employment on the basis of race), the framers
rejected a clause adapted from the United States Bill of Rights
that would have meant that a State could not 'deprive any person of
life, liberty, or property without due process of law, or deny to
any person within its jurisdiction the equal protection of its
laws'.(68)
The rejection of a Bill of Rights by the framers
and Menzies, was influenced by the works of two nineteenth century
English constitutional commentators, J Bryce(69) and AV Dicey.(70)
Both were sceptical of rights guaranteed in written constitutions.
Writing in the context of responsible government, Dicey argued that
civil liberties could be adequately protected through the common
law and political processes.(71) The failure to include a Bill of
Rights in the Australian Constitution was consistent with the
notion of parliamentary sovereignty, which Dicey described as the
'dominant characteristic of our political institutions'.(72) By
parliamentary sovereignty, Dicey meant 'that Parliament ... has ...
the right to make or unmake any law whatever and, further, that no
person or body is recognised by the law of England as having a
right to override or set aside the legislation of Parliament'.(73)
This was expressed in a diluted form in the Australian Constitution
with the grant of plenary power to the Commonwealth in the
specified areas listed mainly in sections 51 and 52, but subject to
the adoption of the United States notion of judicial review, under
which the High Court can invalidate legislation inconsistent with
the Constitution.(74) Parliamentary sovereignty found clearer
expression in the unwillingness of the Convention delegates to
fetter the power of the new Federal and State Parliaments to
abrogate human rights.(75)
This view of a Bill of Rights has not gone
unchallenged. Dicey's position has been undermined in the United
Kingdom, where the Human Rights Act 1998 has been
enacted.(76) Even among the framers of the Australian Constitution,
there were supporters of entrenched rights. The most notable was
Andrew Inglis Clark, a former Tasmanian Attorney-General and author
of the draft 1891 constitution upon which much of the present
document is based.(77) Richard O'Connor, one of the first justices
of the High Court, unsuccessfully argued that rights attaching to
the citizenship of the Australian people were needed:
We are making a Constitution which is to endure,
practically speaking, for all time. We do not know when some wave
of popular feeling may lead a majority in the Parliament of a state
to commit an injustice by passing a law that would deprive citizens
of life, liberty, or property without due process of law.(78)
A Bill of Rights has many weaknesses and
limitations. Legally protected rights can be 'blunt tools for
redressing social injustice'.(79) Some of these weaknesses are
apparent in the Canadian Charter of Rights and Freedoms and,
perhaps more clearly, in the United States Bill of Rights. However,
this does not negate the importance of such an instrument in
protecting fundamental rights against the exercise of arbitrary
power in a modern State. A statement of human rights enacted by the
Federal Parliament would have the potential to make a positive and
lasting contribution to the liberty of Australians and could
promote important values such as tolerance of cultural diversity.
Arguably, such a contribution is needed today, nearly one hundred
years after the Australian Constitution came into force.
The statement of Menzies set out above, while
accurate when made 30 years ago, arguably could not be repeated
with the same conviction today. Sir Anthony Mason, a former Chief
Justice of the High Court, has become a strong proponent of a Bill
of Rights.(80) He has remarked:
the common law system, supplemented as it
presently is by statutes designed to protect particular rights,
does not protect fundamental rights as comprehensively as do
constitutional guarantees and conventions on human rights ... The
common law is not as invincible a safeguard against violations of
fundamental rights as it was once thought to be.(81)
Brian Burdekin, a former Australian Human Rights
Commissioner, also commented in 1994 that: 'It is beyond question
that our current legal system is seriously inadequate in protecting
many of the rights of the most vulnerable and disadvantaged groups
in our community'.(82) Such comments reflect the need to shield
basic rights from the exercise of arbitrary power, such as that
exercised in the past to remove indigenous children from their
families. The correctness of these statements has now been
recognised in other nations that had relied upon the common law
tradition to protect rights, but have subsequently passed statutory
Bills of Rights. For example, the United Kingdom Parliament has
enacted the Human Rights Act 1998 (UK), while the
New Zealand Legislature has passed the New Zealand Bill of
Rights Act 1990.
A Gradual Path
Forward
Parliamentary Leadership
A rights regime cannot be imposed upon the
Australian people. Neither should it be. An imposed regime would
not achieve the aims of a Bill of Rights. Rights are meaningless
unless they exist within an appropriate legal, political and
cultural environment. After all, the 1936 USSR Constitution
contained a Bill of Rights at the height of the great purges
initiated by Joseph Stalin. What is necessary is change that
engenders a culture of rights protection, including a tolerance and
respect for rights, built upon the fundamental values held by the
Australian people. Accordingly, any scheme that is designed to
better protect civil liberties by way of constitutional or
statutory change must be judged according to its scope, not only to
change the text of the law but also to bring about a culture of
rights protection in Australia. This has been a notable success of
the Canadian Charter, which has been praised for its 'success in
enhancing the 'culture of liberty' in Canada'.(83)
Any system of rights protection based upon the
High Court implying a Bill of Rights from the Constitution is
inadequate. Implied rights are unlikely to become matters of common
knowledge and invocation if they are created by the High Court,
even if they are soundly based in the text of the Constitution.
They lack the sense of community participation possible as a result
of the Federal Parliament bringing about either a statutory or
constitutional Bill of Rights. While judicial leadership on rights
is better than no leadership at all, it is a poor substitute for
political and popular leadership. It will be extremely difficult to
bring about a rights culture in Australia except where rights are
founded upon the commitment of the Australian people and their
elected representatives.
The failed 1988 referendum to change the
Australian Constitution demonstrated the difficulty of gaining a
'Yes' vote.(84) It showed that bipartisan support is essential for
constitutional change and that the support of the Australian people
cannot be assumed even for a proposal that is designed to protect
the rights of Australians as against government. Hence, to achieve
reform in the area of constitutional rights it will be necessary to
build a broad political and popular base for change underpinned by
real understanding of the issues and proposals. The result of the
1967 referendum, as well as a recent successful referendum in New
South Wales that entrenched judicial independence and the security
of tenure of judges in the Constitution Act 1902
(NSW),(85) shows that it is possible to gain the support of the
Australian people in favour of changing the Constitution to protect
human rights. However, the 1988 result shows that this is by no
means easy and that any attempt to insert new rights into the
Constitution should be carefully considered and prepared.
A Statutory Bill of Rights
The experience of the New Zealand Bill of
Rights Act 1990 demonstrates the potential
effectiveness of a statutory Bill of Rights and the value, at least
initially, of protecting rights using this means rather than by
amendment of the Constitution. The United Kingdom experience under
the Human Rights Act 1998 (UK), which has many
similarities to the New Zealand model, may also bear this out in
the near future. As statutory Bills of Rights, being instruments
that are not constitutionally entrenched, they can be repealed or
altered by parliament. They accordingly do not amount to an
irrevocable transfer of sovereign power from the legislature to the
judiciary. Despite this limitation, the New Zealand instrument, in
the hands of a cooperative judiciary, has made an important
contribution to the protection of basic freedoms.
The New Zealand Bill of Rights Act
offers little on its face value in the way of rights protection. It
is an ordinary unentrenched Act of the New Zealand Parliament. The
Act recognises a number of rights, ranging from the freedoms of
expression (section 14) and association (section 17) to the 'right
not to be subjected to medical or scientific experimentation
without that person's consent' (section 10). The protection
afforded to such rights by the statute is limited. Section 2 states
that: 'The rights and freedoms contained in this Bill of Rights are
affirmed' and section 3 that the Act applies to acts done by the
legislative, executive, or judicial branches or by a person or body
in the performance of a public function carried out under law.
Under section 5, the listed rights 'may be subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society'. However, under section
4:
No court shall, in relation to any enactment
(whether passed or made before or after the commencement of this
Bill of Rights), -
(a) Hold any provision of the enactment to be
impliedly repealed or revoked, or to be in any way invalid or
ineffective, or
(b) Decline to apply any provision of the enactment -
by reason only that the provision is inconsistent with any
provision of this Bill of Rights.
At best, the statute allows the judiciary, under
section 6, to interpret an enactment of the New Zealand Parliament
so as to prefer 'a meaning that is consistent with the rights and
freedoms contained in this Bill of Rights'. While the meaning of
each of sections 4, 5 and 6 is clear, they produce a difficult and
confusing interaction.(86) For example, it is not easy to reconcile
the protection afforded to the rights listed in the Act by section
5 with the limits placed by section 4 upon the power of a court to
actually protect such rights. Despite the apparently limited
protection granted by section 6 to the rights listed in the New
Zealand Bill of Rights Act, judicial application has meant
that the Act has played a prominent, and perhaps unexpected, role
in fostering civil liberties.(87) The former President of the New
Zealand Court of Appeal, Sir Robin Cooke, in a moment of hyperbole,
described section 6 as a 'key and strong section' that is 'a weapon
of justice' for the judiciary.(88) Generally, the Act has been
'regarded by judges as a fundamental constitutional document which
must be given what has been called a purposive
interpretation'.(89)
The effectiveness of the New Zealand Bill of
Rights Act suggests that if the goal is to bring about an
effective scheme of rights protection in Australia, there should
not be any immediate move to insert a Bill of Rights in the
Constitution. The 1988 referendum and the lack of basic knowledge
of Australians about their constitutional system (90) repudiates
such a course. A recent survey also found a 'deep partisan divide
among legislators over a bill of rights' and concluded from this
that 'any possibility of constitutional entrenchment by means of
referendum is out of the question'.(91) Instead, a more gradual
course should be adopted that seeks to build and marshal community
support and understanding so as to effect social, political and
legal change. The Federal Parliament must play a central role in
this process.
A first step for the Federal Parliament might be
to convene a joint parliamentary committee, or a special commission
consisting of both parliamentary and non-parliamentary members, to
publicly examine ways in which the Federal Parliament could work to
enhance the level of protection afforded to fundamental freedoms in
Australia. The terms of reference of the body should be drafted to
enable it to examine models such as the United Kingdom's Human
Rights Act and the New Zealand Bill of Rights Act, and to determine
whether a modified form of either statute would be appropriate for
Australian conditions and the extent to which the parliamentary
committee system could play a role under such a statute. The body
should also be empowered to identify core rights and freedoms
consistent with the values of contemporary Australians that are the
most deserving of protection.
Reform of the
Committee System
Parliamentary committees can play an important
role in examining legislation for compliance with human rights
principles.(92) The Federal Parliament's existing committee system
reflects this. The Senate Standing Committee for the Scrutiny of
Bills examines all bills that come before the Parliament. Under
Senate Standing Order 24(1)(a) the Committee is charged with
reporting whether Bills and Acts:
(i) trespass unduly on personal rights and
liberties
(ii) make rights, liberties or obligations
unduly dependent upon insufficiently defined administrative
powers
(iii) make rights, liberties or obligations
unduly dependent upon non-reviewable decisions
(iv) inappropriately delegate legislative
powers, or
(v) insufficiently subject the exercise of
legislative power to parliamentary scrutiny.
This Committee does not examine delegated
legislation. Under Senate Standing Order 23 a separate committee,
the Senate Standing Committee on Regulations and Ordinances,
examines delegated legislation by applying like criteria.
Each of the Canadian Bill of Rights
1960, the New Zealand Bill of Rights Act
1990 and the Human Rights Act 1998 (UK) contains
a non-judicial means of securing compliance. Under section 3 of the
Canadian Bill of Rights, section 7 of the New Zealand Bill of
Rights Act and section 19 of the Human Rights Act, the Federal
Minister of Justice, the Attorney-General or a Minister of the
Crown, respectively, are required to report on legislation
introduced into parliament, so as to highlight any inconsistencies
and incompatibilities with the rights protected under the relevant
instrument. The weakness in this approach is that it entrusts the
responsibility for detecting breaches of the instruments to the
government that has proposed the legislation. A Canadian
commentator has suggested that: 'To put real teeth into such a
provision, a standing committee of the House of Commons would have
to be established'.(93)
The Australian committee system might be adapted
to make a greater contribution to the protection of fundamental
rights. A joint standing committee of the Federal Parliament, or
standing committees of both the Senate and the House of
Representatives, might be created to examine legislation and
delegated instruments for compliance with a statutory Bill of
Rights or, in the absence of such a Bill, with an agreed list of
fundamental rights. Alternatively, the mandates of the existing
Senate Standing Committee for the Scrutiny of Bills and the Senate
Standing Committee on Regulations and Ordinances might be extended
by expanding the meaning of 'personal rights and liberties' to
include a defined set of basic freedoms.
The creation of a committee in the Commonwealth
Parliament or the expansion of the brief of existing committees
would serve two primary purposes. It would allow the vetting of
legislation before enactment so as to reduce the likelihood of
Commonwealth legislation breaching basic freedoms. It would also
build parliamentarians into the rights protection process. This
latter aspect should contribute to a greater understanding of such
issues by representatives and, through media coverage of committee
deliberations, submissions and reports, by the Australian
people.
Constitutional
Protection in the Longer Term?
It is difficult to see that any proposal for a
Bill of Rights in the Constitution could succeed without some
process of familiarisation for both the players in the political
process and the community. Over time, a statutory Bill of Rights
enacted by the Federal Parliament and supervised through the
committee system, perhaps supplemented or even preceded by
statutory Bills of Rights enacted by State and Territory
governments,(94) would contribute positively to a rights culture
within Australian society. This process should also help to
establish which rights are deserving of protection and which are
not. In the longer term, those rights that are generally accepted
might be incorporated into the Constitution by a referendum held
under section 128.
Even after certain rights have been incorporated
into the Constitution, it may be appropriate to follow the example
of the Canadian Charter of Rights and Freedoms and allow the
Federal Parliament to override some or all of such rights by
passing legislation expressly indicating an intent to change the
law notwithstanding the constitutional position, or by requiring
that the Parliament achieve a specified majority.(95) In its 1988
report, a majority of the Constitutional Commission found that a
power to override constitutional guarantees 'is inconsistent with
the whole process of entrenching rights in the Constitution'.(96)
However, a final decision on whether an override clause would be
appropriate in the Australian Constitution would depend upon the
operation of a like clause within a statutory Bill of Rights.
Section 33(1) of the Canadian Charter of Rights
and Freedoms provides that: 'Parliament or the legislature of a
province may expressly declare in an Act of Parliament or of the
legislature, as the case may be, that the Act or a provision
thereof shall operate notwithstanding a provision included in
section 2 or sections 7 to 15 of this Charter.' A declaration made
under section 33(1) has, under section 33(3), an operation of five
years, after which time the declaration may be re-enacted. It is
important to note that the 'notwithstanding' clause requirement in
section 33(1) does not apply to all of the rights listed in the
Charter, just to the rights listed in sections 2 and 7 to 15. This
means that a legislature can abrogate rights such as 'the right not
to be arbitrarily detained or imprisoned' (section 9), the rights
to equality under the law and freedom from discrimination on the
basis of race (section 15), and even the fundamental freedoms
listed in section 2 (which include 'freedom of thought, belief,
opinion and expression, including freedom of the press and other
media of communication'). On the other hand, other rights such as
the right to vote in federal elections (section 3) and the right to
'enter, remain in and leave Canada' (section 6(1)) are beyond the
reach of a notwithstanding clause.
Since 1982, the override clause has only(97)
been applied by the Quebec,(98) and has never been invoked by the
Canadian Parliament. The political price to be paid in invoking
section 33(1) has been too high. For example, a government desiring
to override the 'right not to be subjected to any cruel and unusual
treatment or punishment' in section 13 of the Charter must be
prepared to meet strong and organised resistance from many sections
of the community.(99) This does not necessarily mean that section
33(1) has been a failure. It continues to offer an escape valve
should the interpretation of the Charter by the Canadian judiciary
ever stand in the way of overriding public policy objectives. An
override clause may thus enable basic rights to be defined and
understood as part of a dialogue between Parliament and the
Judiciary, without giving sole responsibility for their protection
to either arm of government.(100)
Which
Rights?
In protecting rights by statutory means or by
constitutional entrenchment difficult decisions must be made about
which rights should be protected. Again, this would best be
determined over time, step by step. Before seeking to protect a
wide range of rights, the Parliament might move to protect a few
core rights that are obviously regarded as basic and fundamental to
Australian democracy. This should not include rights such as 'due
process of law' in the Fifth and Fourteenth Amendments to the
United States Constitution, which has a highly developed meaning in
the United States context but no resonance in Australia.(101) Core
rights might include the right to vote, freedom of expression and
freedom from discrimination on the basis of race, sex or
disability, or perhaps collective rights such as the cultural
rights of Australia's indigenous peoples.(102) In each case such
rights should be carefully defined and limited. The success of
legislation such as the Racial Discrimination Act may mean that it
will soon be possible to gain popular and political support for
inserting a guarantee of freedom from discrimination on the basis
of race in the Australian Constitution. Otherwise, a good place to
start would be to examine the rights protected under the
International Covenant on Civil and Political Rights 1966, or those
favoured by the Constitutional Commission in its 1988 report(103)
or by the Queensland Electoral and Administrative Review Commission
in its 1993 report.(104) Other rights, such as those in the
International Covenant on Economic, Social and Cultural Rights
1966, might be examined once a culture of rights protection by way
of statutory or constitutional means has begun to emerge.
Difficult issues arise as to whether the
Constitution should ultimately guarantee rights as between citizens
rather than merely as between citizen and government.
Traditionally, constitutional rights in Australia have conferred
protection from government action, rather than as between private
actors, such as landlord and tenant or employer and employee. Where
there has been a desire to protect rights between citizens, this
has been proposed not by constitutional means, but by statute, such
as the Sex Discrimination Act. This delineation needs to be
reassessed. Today, the exercise of private rather than public power
may pose the greater threat to the basic rights of Australians. The
increasing privatisation of government and the corresponding
exercise of what had been considered to be public power by large
corporations means that it may be appropriate to constitutionally
guarantee rights as against non-governmental action. For example,
the right to privacy is arguably in greater danger of abrogation by
secret surveillance undertaken by large corporations than by the
actions of government. Given also many Australian prisoners are
held in private rather than public prisons(105) and that there are
now more private than public police in Australia,(106) it may no
longer be appropriate to limit the protection conferred by the
Constitution to protection from governmental action.
Conclusion
An incremental approach to protecting rights by
statutory means before constitutional means and of protecting
certain rights before others is a pragmatic and potentially
achievable means of bolstering rights protection in Australia.
Importantly, it is also a process that would allow the oversight of
the Federal Parliament at every step in continuing to build a
culture of rights protection. This would maximise the chances of
achieving a workable balance between, enabling the judiciary to
foster the rights of Australians and not vesting misplaced faith in
the courts, to solve Australia's pressing social, moral and
political concerns.
Endnotes
1. See, for example, Australian Capital
Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
2. See, for example, Leeth v
Commonwealth (1992) 174 CLR 455 at 470.
3. See G. Williams, 'Lionel Murphy and Democracy and Rights' in
M. Coper and G. Williams, eds, Justice Lionel Murphy -
Influential or Merely Prescient? Federation Press, 1997, p.
50.
4. Amendment of the Australian Constitution is
provided for by section 128 of the instrument, which allows for a
referendum of electors initiated by the Federal Parliament. This is
the only way that the text of the Constitution can be altered,
section 128 providing that 'This Constitution shall not be altered
except' in the manner set out in that section.
5. See G. Williams, Human Rights under the
Australian Constitution, Oxford University Press, 1999, pp.
103-10.
6. Compare Ansett Transport Industries
(Operations) Pty Ltd v Wardley (1980) 142 CLR 237, p. 267 per
Murphy J. (The Constitution makes no discrimination between the
sexes. It may be that an implication should be drawn from its terms
that the Parliament's legislative powers do not extend to
authorising arbitrary discrimination between the sexes).
7. Australian Capital Television Pty Ltd v
Commonwealth (1992) 177 CLR 106.
8. P. Hogg, Constitutional Law of
Canada Carswell, 4th ed., 1997, p. 779.
9. See Human Rights Act 1993
(NZ).
10. See P. Bailey, Human Rights: Australia
in an International Context, Butterworths, 1990, Chapters 6,
7; N. O'Neill and R. Handley, Retreat from Injustice: Human
Rights in Australian Law, Federation Press, 1994, Chapter 17
see also Privacy Act 1988 (Cwlth).
11. See also Affirmative Action (Equal
Employment Opportunity for Women) Act 1986 (Cwlth);
Equal Employment Opportunity (Commonwealth Authorities)
Act 1987 (Cwlth); Public Service Act
1922 (Cwlth).
12. Brandy v Human Rights and Equal
Opportunity Commission (1995) 183 CLR 245.
13. Human Rights and Equal Opportunity
Commission Act 1986 (Cwlth). See P. Bailey, Human
Rights: Australia in an International Context Butterworths,
1990, Chapter 5. Note that the Human Rights Legislation Amendment
Bill 1998 and the Human Rights Legislation Amendment Bill No 2 1999
propose important changes to the Human Rights and Equal Opportunity
Commission. For example, under the Human Rights Legislation
Amendment Bill 1998, the Commission's inquiry and determination
functions would be repealed and replaced with a scheme whereby
complaints not resolved through conciliation could be continued in
the Federal Court in order to obtain an enforceable determination.
Under the Human Rights Legislation Amendment Bill No 2 1999, the
Commission would be restructured and renamed the Human Rights and
Responsibilities Commission.
14. K. Guest, The Elusive Promise of Equality:
Analysing the Limits of the Sex Discrimination Act 1984,
Research Paper no. 16, Department of the Parliamentary
Library, 1998-99.
15. Kartinyeri v Commonwealth (1998)
152 ALR 540.
16. (1996) 187 CLR 1.
17. Commonwealth v Tasmania (1983) 158
CLR 1.
18. ibid.
19. Richardson v Forestry Commission
(1988) 164 CLR 261; Queensland v Commonwealth
(Tropical Rainforests Case) (1989) 167 CLR 232;
Victoria v Commonwealth (Industrial Relations Act
Case) (1996) 187 CLR 416.
20. Commonwealth v Tasmania
(Tasmanian Dam Case) (1983) 158 CLR 1 at 259 per Deane
J.
21. Koowarta v Bjelke-Petersen (1982)
153 CLR 168.
22. Viskauskas v Niland (1983) 153 CLR
280; University of Wollongong v Metwally (1984) 158 CLR
447. See generally A. R. Blackshield and G. Williams,
Australian Constitutional Law And Theory: Commentary and
Materials, Federation Press, 2nd ed, 1998, Chapter 7.
23. H. Gibbs, 'The Constitutional Protection of
Human Rights' Monash University Law Review, vol. 9 (1),
1982, p. 13.
24. Mabo v Queensland (No 1) (1988) 166
CLR 186; Western Australia v Commonwealth (Native
Title Case) (1995) 183 CLR 373. Recent amendments to the
Native Title Act 1993 (Cwlth) by the Native
Title Amendment Act 1998 (Cwlth) may mean that these
results would not now be reached by the High Court.
25. Criminal Code Amendment Act
1997 (Tas), sections 4, 5.
26. Australian Capital Territory
Attorney-General's Department, A Bill of Rights for the
ACT? (Australian Capital Territory, 1993; Constitutional
Committee of the Victorian Parliament, Report on the
Desirability or Otherwise of Legislation Defining and Protecting
Human Rights Government Printer, 1987; Electoral and
Administrative Review Commission, Report on Review of the
Preservation and Enhancement of Individuals' Rights and
Freedoms Electoral and Administrative Review Commission,
August 1993; Sessional Committee on Constitutional Development,
Final Draft Constitution for the Northern Territory
Legislative Assembly of the Northern Territory, August 1996.
Compare Legal, Constitutional and Administrative Review Committee,
The Preservation and Enhancement of Individuals' Rights and
Freedoms: Should Queensland Adopt a Bill of Rights? (November
1998).
27. Constitution (Declaration of Rights) Bill
1959 (Qld); Constitution (Declaration of Rights and Freedoms) Bill
1988 (Vic). See Australian Capital Territory Attorney-General's
Department, A Bill of Rights for the ACT? Australian
Capital Territory, 1993, pp. 91-3; Electoral and Administrative
Review Commission, Report on Review of the Preservation and
Enhancement of Individuals' Rights and Freedoms Electoral and
Administrative Review Commission, August 1993, pp. 51-3.
28. See P. Bailey, Human Rights: Australia
in an International Context, Butterworths, 1990, pp. 51-5; H.
Charlesworth, 'The Australian Reluctance About Rights' Osgoode
Hall Law Journal, vol 31 (1), 1993, pp. 205-10; B. Galligan,
'Australia's Rejection of a Bill of Rights' Journal of
Commonwealth and Comparative Politics, vol. 28, 1990, p. 344;
P. Hanks, 'Constitutional Guarantees' in H. P. Lee and G.
Winterton, eds., Australian Constitutional Perspectives
1992, pp. 123-6; N. O'Neill and R. Handley, Retreat from
Injustice: Human Rights in Australian Law Federation Press,
1994, pp. 79-83.
29. Voting in a referendum is compulsory under
section 45 of the Referendum (Machinery Provisions) Act
1984 (Cwlth).
30. For the results of each referendum, see A.
R. Blackshield and G. Williams, Australian Constitutional Law
and Theory: Commentary and Materials, Federation Press, 2nd
ed, 1998, pp. 1183-8.
31. Post-war Reconstruction: A Case for
Greater Commonwealth Powers, Government Printer, 1942, p.
116.
32. Constitutional Alteration (Post-War
Reconstruction and Democratic Rights) Bill 1944 (Cwlth).
33. The 'Yes' vote is sometimes cited as being
90.77 per cent. However, this figure excludes the fact that 1.58
per cent of votes cast were informal.
34. See B. Attwood and A. Markus, The 1967
Referendum, or When Aborigines Didn't Get the Vote, Aboriginal
Studies Press, 1997, Chapter 5.
35. Section 41 of the Constitution states: 'No
adult person who has or acquires a right to vote at elections for
the more numerous House of the Parliament of a State shall, while
the right continues, be prevented by any law of the Commonwealth
from voting at elections for either House of the Parliament of the
Commonwealth'.
36. A. R. Blackshield and G. Williams,
Australian Constitutional Law and Theory: Commentary and
Materials, Federation Press, 2nd ed, 1998, pp. 160-1. See P.
Stretton and C. Finnimore, 'Black Fellow Citizens: Aborigines and
the Commonwealth Franchise' Australian Historical Studies
1993, vol. 25, p. 521.
37. Commonwealth Electoral Act 1962 (Cwlth).
38. Kartinyeri v Commonwealth (1998)
152 ALR 540.
39. Human Rights Bill 1973 (Cwlth), sections 11,
16, 18, 19.
40. ibid., section 12.
41. Commonwealth Parliamentary Debates,
vol 58, Senate, 21 November 1973, p. 1972.
42. ibid., pp. 1972-4.
43. Human Rights Bill 1973 (Cwlth), section
5(3). As to the effectiveness of such a clause, see G. Williams,
'Locking in the GST Rate', Research Note no. 12,
Department of the Parliamentary Library, 1998-99.
44. Human Rights Bill 1973 (Cwlth), section
40.
45. See G. Williams, 'Lionel Murphy and
Democracy and Rights' in M. Coper and G. Williams, eds.,
Justice Lionel Murphy - Influential or Merely Prescient?
Federation Press, 1997, p. 50.
46. H. Charlesworth, 'The Australian Reluctance
About Rights', Osgoode Hall Law Journal vol. 31 (1), 1993,
pp. 208-9.
47. See ibid., p. 209; N. O'Neill and R.
Handley, Retreat from Injustice: Human Rights in Australian
Law, Federation Press, 1994, pp. 81-2.
48. The Government was, however, successful in
enacting the Human Rights and Equal Opportunity Commission
Act 1986 (Cwlth).
49. Constitutional Commission, Final Report
of the Constitutional Commission, AGPS, 1988, vol. 1, p.
1.
50. Constitutional Commission, Report of the
Advisory Committee on Individual & Democratic Rights under the
Constitution, AGPS, 1987.
51. ibid., p. 49.
52. ibid., p. 55.
53. ibid., p. 38.
54. Constitutional Commission, First Report
of the Constitutional Commission, AGPS, 1988, 2 vols.
55. Constitutional Commission, Final Report
of the Constitutional Commission, AGPS, 1988, 2 vols.
56. Constitutional Commission, Final Report
of the Constitutional Commission, AGPS, 1988, vol. 1, p.
476.
57. See G. Ferguson, 'The Impact of an
Entrenched Bill of Rights: The Canadian Experience', Monash
University Law Review, vol. 16, pp. 216-17.
58. Constitutional Commission, Final Report
of the Constitutional Commission, AGPS, 1988, vol. 1, p.
508.
59. ibid., p. 492.
60. See P. Hanks, 'Constitutional Guarantees' in
G. Winterton and H. P. Lee, eds, Australian Constitutional
Perspectives, 1992, pp. 125-6.
61. Constitution Alteration (Fair Elections)
Bill 1988.
62. Constitution Alteration (Rights and
Freedoms) Bill 1988.
63. See, on the Convention, G. Williams, 'The
1998 Constitutional Convention - First Impressions', Current
Issues Brief no. 11, Department of the Parliamentary
Library, 1997-98.
64. Report of the Constitutional
Convention, vol. 1, Report of Proceedings, Commonwealth of
Australia, 1998, pp. 42-50.
65. This list includes arguments from P. Bailey,
Human Rights: Australia in an International Context
Butterworths, 1990, pp. 62-76; Constitutional Commission,
Report of the Advisory Committee on Individual and Democratic
Rights under the Constitution AGPS, 1987, Chapters 3 and 4; M.
Kirby, 'The Bill of Rights Debate' Australian Lawyer, vol.
29, no. 11, December 1994, p. 16; Legal, Constitutional and
Administrative Review Committee, The Preservation and
Enhancement of Individuals' Rights and Freedoms: Should Queensland
Adopt a Bill of Rights? Legislative Assembly of Queensland,
Issues Paper no. 3, September 1997, pp. 8-9; M. Zander, A Bill
of Rights? Sweet & Maxwell, 4th ed. 1997.
66. R. Menzies, Central Power in the
Australian Commonwealth, Cassell, 1967, p. 54.
67. O. Dixon, Jesting Pilate, Law Book
Co, 1965, p. 102.
68. G. Williams, Human Rights under the
Australian Constitution Oxford University Press, 1999, pp.
37-42; J. M. Williams, 'Race, Citizenship and the Formation of the
Australian Constitution: Andrew Inglis Clark and the "14th
Amendment"', Australian Journal of Politics and History,
vol. 42, 1996.
69. J. Bryce, The American
Commonwealth, Macmillan, 1st ed. 1888, 3rd ed. 12 vols.
70. A. V. Dicey, Introduction to the Study
of the Law of the Constitution, Macmillan, 1st ed. 1885, 10th
ed. 1959.
71. ibid., pp. 195-202.
72. ibid., p. 39.
73. ibid., pp. 39-40.
74. J. A. Thomson, 'Constitutional Authority for
Judicial Review: A Contribution from the Framers of the Australian
Constitution' in G. Craven, eds, The Convention Debates
1891-1898: Commentaries, Indices and Guide Legal Books,
Sydney, 1986, vol. 6, p. 173.
75. See O. Dixon, Jesting Pilate, Law
Book Co, 1965, p. 101-2.
76. See also E. Barendt, 'Dicey and Civil
Liberties', Public Law, 1985, p. 596.
77. See J. M. Williams, 'With Eyes Open': Andrew
Inglis Clark and our Republican Tradition' (1995), Federal Law
Review, vol. 23, p. 149; J. M. Williams, 'Race, Citizenship
and the Formation of the Australian Constitution: Andrew Inglis
Clark and the '14th Amendment', Australian Journal of Politics
and History, vol. 42, 1996, p. 10.
78. Official Record of the Debates of the
Australasian Federal Convention, 1891-1898, reprinted Legal
Books, 1986, vol. 4, Melbourne, p. 688.
79. J. Bakan, Just Words: Constitutional
Rights and Social Wrongs, University of Toronto Press, 1997,
p. 152.
80. See A. Mason, 'A Bill of Rights for
Australia?', Australian Bar Review, vol. 5, 1989, p. 79.
Compare H. Gibbs, 'The Constitutional Protection of Human Rights',
Monash University Law Review, vol. 9, 1982, p. 1.
81. A. Mason, 'The Role of a Constitutional
Court in a Federation: A Comparison of the Australian and the
United States Experience', Federal Law Review, vol. 16
(1), 1986. See J. A. Toohey, 'A Government of Laws, and Not of
Men?', Public Law Review, vol. 4, 1993, p. 163.
82. B. Burdekin, 'Foreword' in P. Alston, ed.,
Towards an Australian Bill of Rights Centre for
International and Public Law, Australian National University, 1994,
p. v.
83. R. Penner, 'The Canadian Experience with the
Charter of Rights: Are there Lessons for the United Kingdom?',
Public Law, 1996, p. 123.
84. See B. Galligan and J. R. Nethercote,
The Constitutional Commission and the 1988 Referendums,
Centre for Research on Federal Financial Relations, Australian
National University, 1989.
85. Constitution Act 1902 (NSW),
section 7B and Part 9, as amended by the Constitution
(Entrenchment) Amendment Act 1992 (NSW).
86. A. S. Butler, 'The Bill of Rights Debate:
Why the New Zealand Bill of Rights Act 1990 is a Bad Model for
Britain', Oxford Journal of Legal Studies, vol. 17, 1997,
p. 323.
87. P. A. Joseph, 'The New Zealand Bill of
Rights', Public Law Review, vol.7, 1996, p. 162.
88. R. A. Cooke, 'A Sketch from the Blue Train:
Non-Discrimination and Freedom of Expression: The New Zealand
Contribution', New Zealand Law Journal, vol. 10, 1994, p.
10.
89. J. Elkind, 'New Zealand's Experience with a
Non-Entrenched Bill of Rights' in Alston ed., Towards an
Australian Bill of Rights, Centre for International and Public
Law, Canberra, 1994, p. 252.
90. Civics Expert Group, Whereas the People:
Civics and Citizenship Education, AGPS,1994. See K. Krinks,
'Creating the Active Citizen? Recent Developments in Civics
Education', Research Paper no. 15, Department of the
Parliamentary Library, 1998-99.
91. B. Galligan and I. McAllister, 'Citizen and
Elite Attitudes Towards an Australian Bill of Rights' in B.
Galligan and C. Sampford, eds, Rethinking Human Rights,
Federation Press, 1997, pp. 145-6. The same conclusions were
reached by the Senate Standing Committee on Constitutional and
Legal Affairs, A Bill of Rights for Australia? An Exposure
Report for the Consideration of Senators, AGPS, 1985, p.
35.
92. See D. Kinley, The European Convention
on Human Rights: Compliance without Incorporation, Dartmouth,
1993.
93. P. H. Russell, 'A Democratic Approach to
Civil Liberties' University of Toronto Law Journal, vol.
19, 1969, p. 126. See J. L. Hiebert, 'A Hybrid Approach to Protect
Rights? An Argument in Favour of Supplementing Canadian Judicial
Review with Australia's Model of Parliamentary Scrutiny'
Federal Law Review, vol. 26, 1998, p. 115.
94. Following the enactment of the Canadian
Bill of Rights 1960, statutory Bill of Rights were
also enacted by Alberta (Alberta Bill of Rights 1972
(Alberta)) and Quebec (Quebec Charter of Human Rights and
Freedoms 1975 (Quebec)).
95. M. R. Wilcox, An Australian Charter of
Rights? Law Book Co, 1993, pp. 265-6 has suggested that an
override might be permitted where it is supported by the Australian
people voting at a referendum. However, this would set too high a
standard. It would also achieve little given that, in any event, a
referendum would be sufficient to amend the Constitution to expunge
the right.
96. Constitutional Commission, Final Report
of the Constitutional Commission, AGPS, 1988, vol. 1, p.
492.
97. On one occasion, Saskatchewan also sought to
take advantage of section 33(1), but this ultimately proved
unnecessary when the Supreme Court of Canada held that the
Saskatchewan law did not breach the Charter. See RWDSU v
Saskatchewan [1987] 1 SCR 460.
98. Quebec did not give its approval to the
Canadian Charter of Rights and Freedoms. It argued that a federal
Charter is unnecessary in Quebec given the Quebec Charter of
Human Rights and Freedoms 1975. Much of Quebec's use of
section 33(1) came as a protest against the imposition of the
Charter of Rights and Freedoms. Soon after the Charter came into
effect, the Quebec Parliament passed An Act Respecting the
Constitution Act 1982, which added a standard-form
'notwithstanding' clause to every statute then in force in Quebec.
Each new piece of legislation was also drafted to include the
'notwithstanding' clause. This latter practice stopped with a
change of government in Quebec in December 1985. When, under
section 33(3) of the Charter, the 1982 Act ceased to operate after
five years in 1987, the new Parliament also failed to re-enact the
'blanket override' in the Act. This government did, however, apply
the notwithstanding clause in five pieces of legislation, including
in An Act to Amend the Charter of the French Language
1988, which prohibited the use of the English language on outside
commercial signs. See J. L. Hiebert, 'Why Must a Bill of Rights be
a Contest of Political and Judicial Wills? The Canadian
Alternative' Public Law Review vol. 10, 1999, p. 34; P.
Hogg, Constitutional Law of Canada Carswell, 4th ed, 1997,
p. 909.
99. P. Hogg, Constitutional Law of
Canada Carswell, 4th ed, 1997, p. 914.
100. J. L. Hiebert, 'Why Must a Bill of Rights
be a Contest of Political and Judicial Wills? The Canadian
Alternative' Public Law Review, vol. 10, 1999, p. 22.
101. F. Brennan, 'An Australian Convert from a
Constitutional Bill of Rights', Public Law Review, vol. 7,
1996, p. 132.; F. Brennan, 'Thirty Years On, Do We Need a Bill of
Rights?', Adelaide Law Review, vol. 18, 1996, p. 123.
102. See F. Brennan, 'The Indigenous People" in
P. D. Finn, ed., Essays on Law and Government: Principles and
Values, Law Book Co, 1995, vol. 1, p. 33; F. Brennan,
Securing a Bountiful Place for Aborigines and Torres Strait
Islanders in a Modern, Free and Tolerant Australia
Constitutional Centenary Foundation, 1994; Constitutional
Commission, Report of the Advisory Committee on Individual and
Democratic Rights under the Constitution, AGPS, 1987, Chapter
10; Sessional Committee on Constitutional Development, Final
Draft Constitution for the Northern Territory, Legislative
Assembly of the Northern Territory, August 1996.
103. Constitutional Commission, Final Report
of the Constitutional Commission, AGPS, 1988, 2 vols; See M.
R. Wilcox, An Australian Charter of Rights? Law Book Co,
1993 pp. 249, 252-61.
104. Electoral and Administrative Review
Commission, Report on Review of the Preservation and
Enhancement of Individuals' Rights and Freedoms Electoral and
Administrative Review Commission, August 1993. For a table
comparing the rights recommended in this report as against the
rights put forward in the 1988 report of the Constitutional
Commission and the rights listed in the Australian Human Rights
Bill 1985 (Cwlth) and the Constitution (Declaration of Rights and
Freedoms) Bill 1988 (Vic), see Legal, Constitutional and
Administrative Review Committee, The Preservation and
Enhancement of Individuals' Rights and Freedoms: Should Queensland
Adopt a Bill of Rights?. Legislative Assembly of Queensland,
Issues Paper no. 3, September 1997, pp. 10-2. Compare Legal,
Constitutional and Administrative Review Committee, The
Preservation and Enhancement of Individuals' Rights and Freedoms:
Should Queensland Adopt a Bill of Rights? November 1998.
105. See Corrections Act 1986 (Vic). In
1997-98, 15.4 per cent of the prisoner population (excluding
periodic detainees) was held in privately operated prisons in
Australia (up from 7.9 per cent in 1996-97): Steering Committee for
the Review of Commonwealth/State Service Provision, Report on
Government Services 1999, volume 1: Education, Health,
Justice, AusInfo, 1999. In some jurisdictions, the percentage of
prisoners in private gaols is much higher, such as in Victoria
where the percentage is 50 per cent: R. Harding, 'Private Prisons
in Australia: The Second Phase', Trends and Issues in Crime and
Criminal Justice no. 84, Australian Institute of Criminology,
April 1998.
106. C. D. Shearing and P. C. Stenning, eds.,
Private Policing, Sage, 1987. According to T. Prenzler and
R. Sarre, 'Regulating Private Security in Australia', Trends
and Issues in Crime and Criminal Justice no. 98, Australian
Institute of Criminology, November 1998, p. 1: 'Police numbers have
not declined relative to population, but have been outstripped by
security. The gap would be considerably wider if one were to
include unlicensed personnel'. Prenzler and Sarre at 2 (Table 1)
give the number of police in Australia as at July 1997 as
42 093 and the number of security personnel as
94 676.