Research Paper 20 1998-99

George Williams, Consultant
Law & Bills Digest Group
11 May 1999

Contents

Major Issues
Introduction
Rights in the Australian Constitution
Federal Human Rights Legislation

Attempts at Reform

Arguments For and Against
A Gradual Path Forward

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:

2. section 80 guarantees the right to trial by jury (although the High Court has severely limited the protection offered by this provision(5))

3. section 116 provides for a range of religious freedoms, including the right to engage in the free exercise of any religion

4. section 117 prohibits the imposition of 'any disability or discrimination' on account of State residence

5. section 92 provides that 'trade, commerce and intercourse among the States ... shall be absolutely free', and

6. 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:

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:

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:

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:

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:

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:

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:

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