Debating a Bill of Rights for Australia

The Commonwealth of Australia is perhaps the only nation with a written Constitution but no Bill of Rights. It is interesting to note that the drafters of the Australian Constitution rejected the idea of a list of fundamental rights thus placing full confidence in the duly elected government to uphold and protect these rights. One of the oft-cited reasons for this state of affairs is that common law as applicable in Australia is sufficient to guarantee full protection of the basic rights of every individual in Australia. 

 The Federal Government has been contemplating the enactment of a Bill of Rights for quite some time. It is interesting to note the arguments against such an enactment, the key ones being:

1. Australia has an impeccable human rights record.

2. A Bill of Rights would vest too much power in the judiciary.

3. With a Bill of Rights, the Australians would run the risk of stating too much in very general terms. (This seems a baseless argument as Australia is a signatory to the ICCPR which itself states rights in general terms and is used as a counter-attack to any attempt towards a codified Bill of Rights.)

Other arguments for and against can be found in this paper here by Justice David Malcolm AC, the then Chief Justice of Western Australia. Arguing intensely for a Bill of Rights, J. Malcolm pointed out the exact difference between the law in Australia and most European countries thus,

Australia, without a Bill of Rights, is now outside the mainstream of legal development in English speaking countries, particularly those most comparable in their political and legal systems, including New Zealand and Canada. While it is true that the United Kingdom lacks a domestic Bill of Rights, the possibility and increasingly the fact of recourse to the European Court of Human Rights and the flow-on effect to decisions by United Kingdom courts, means that the United Kingdom does, in effect, have a Bill of Rights. The European Court has not regarded the common law in a number of areas as protecting human rights adequately. The new United Kingdom Government has announced its intention to legislate to make the Convention a part of the domestic law.

According to the doctrine of incompatibility as applicable under Section 4 of the Human Rights Act, 1998, any domestic legislation or a part thereof violating provisions of the European Convention on Human Rights (ECHR) can be declared as incompatible with the Convention by the Judiciary. Except for the state of Victoria which recently enacted the Victorian Charter of Human Rights and Responsibilities, the rest of Australia is immune from the application of the doctrine. Thus it is a debatable question whether common law is indeed sufficient to protect basic human rights in Australia.

With the forever burning issue of the rights of the Aboriginal people and the now raging and continuous “curry-bashing” perpetrated against Indian students with the Government not taking sufficient action, the atmosphere for a debate on the need and desirability of a Bill of Rights for Australia is fresh again. Hope this time the controversy will see a favorable end.

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