For and against a Bill of Rights

There has been debate in Australia over the need for constitutional or statutory
protection of human rights since the 1890s, when Tasmanian Attorney-General,
Andrew Inglis Clark, suggested entrenching some basic rights in the Constitution.
Current debate has been stimulated by the 2001 Bill of Rights inquiry in New South
Wales and the 2002 Bill of Rights inquiry in the Australian Capital Territory, as well
as the adoption of such rights protection by all other countries with Westminster
systems.

There are strong arguments for and against a Bill of Rights (either statutory or
constitutional) for Australia. These have been set out by people such as Peter Bailey,
Justice Michael Kirby and Michael Zander. Their main arguments are summarised
below.

For

Australian law does not protect fundamental freedoms.

A Bill of Rights would give recognition to certain universal rights.
A Bill of Rights would give power of action to Australians who are otherwise
powerless.
A Bill of Rights would bring Australia into line with the rest of the world.
A Bill of Rights would meet Australia’s international obligations.
A Bill of Rights would enhance Australian democracy by protecting the rights of
minorities.
A Bill of Rights would put rights above politics and arbitrary governmental
action.
A Bill of Rights would improve government policy-making and administrative
decision-making.
A Bill of Rights would serve an important educative function.
A Bill of Rights would promote tolerance and understanding in the community.

1
A
Against

Rights are already well protected in Australia.

R
The High Court is already protecting rights through its interpretation of the
Constitution and the common law.
C
Rights listed in the Constitution or Acts actually make little or no difference in
pprotecting rights.
The political system itself is the best protection of rights in Australia.
T
A Bill of Rights would actually restrict rights, that is, to define a right is to limit it.
A Bill of Rights would be undemocratic to give unelected judges the power to
ooverride the judgment of parliament.
A Bill of Rights would politicise the Australian judiciary.
A Bill of Rights would be very expensive given the amount of litigation it would
g
generate.
A Bill of Rights would be alien to our tradition of parliamentary sovereignty.
A Bill of Rights would protect some rights (for example, the right to bear arms)
that might not be so important to future generations.

The above is an extract from George Williams, A Bill of Rights for Australia
(University of New South Wales Press, 2000), reproduced with the kind permission of
the author.

For further on this issue, see the website of the Gilbert & Tobin Centre of Public Law
at the University of New South Wales:
http://www.gtcentre.unsw.edu.au/bills-of-rights-resources.html
Justice and the Rule of Law:
The Constitution and Protecting Rights
5.1The Rule of Law and Source of Laws

5.2 What is a Constitution?

5.3 The Separation and Division of Powers

5.4 Legalism or Constitutionalism in Australia?

5.5 The High Court of Australia and Rights

5.6 An Australian Bill of Rights?

This aim of this week is to introduce you to the concepts of the rule of law and
civil and political rights in the context of the operations of Australian legal and
judicial institutions. In this week's study you will examine (a) the
Commonwealth Constitution, (b) how it determines the structure of
governance, and (c) how it influences the exercise of civil and political rights
by Australians. Of particular interest will be an analysis of the power and
influence of the High Court of Australia. Here, we consider issues concerning
the separation of powers between the executive, the parliament and the
judiciary. We shall examine the notion and significance of the rule of law,
constitutionalism and discuss the debate over whether Australia needs a Bill
of Rights. This week's study takes up in an Australian context some of the
issues first raised in Week 3.

1.The Rule of Law and Source of Laws

The principle called 'rule of law' lies at the heart of individual freedom and
liberal democracy. David Beetham and Kevin Boyle (1995: 71) describe this
principle in the following way:
The rule of law embodies the simple principle that all state
officials, whether elected or non-elected, should act within the
law and the constitution, on the basis of powers that are legally
circumscribed ... . The principle can be traced back to the
Aristotelian idea that the best government involves the 'rule of
laws, not of me'. In its modern form the principle evolved from
the struggle to limit the arbitrary discretion of the monarch and
his or her officials, by requiring legal authorisation for all
executive action.
The rule of law comprises both an informal culture of values and formal
procedures. Wherever the early colonists of New South Wales, whether
convicts, emancipists, or free settlers, saw the imposition of arbitrary authority
of the Governor they called for the establishment of the rule of law (see Neal
1991: 85—113). Some of their concerns are evident in the following document
which criticises the existing legal system and requests the introduction of trial
by jury.

Read:Petition to the Prince Regent. [1819] 1980. In F. Crowley ed.

Colonial Australia 1788—1840. A Documentary History of
Australia. Melbourne: Thomas Nelson, pp. 247—9.

The independence of the judiciary is central to the rule of law, only through
the existence of an independent judiciary can there be confidence that the law
is administered without 'fear or favour'. As Justice Michael Kirby (1997: 2) of
the High Court has noted, 'when you take the independence of the judges
away, all that is left is the power of guns or of money or of populist leaders or
other self-interested groups.' The rule of law itself presupposes equality of
treatment before the law. This means that no-one is to be above the law, that
justice is available for all, that the law protects all citizens. For some, the
reality of the rule of law must include the right to legal representation for all
accused as a necessary part of ensuring equal treatment before the law.

3
Hence the issue of the availability of legal aid becomes firmly embedded in
debates about the rule of law. One of the main assumptions underlying the
provision of legal aid is that justice ought not depend on the accident of
poverty.
The rule of law is the governing principle that requires governments and
individuals to abide by particular laws and not arbitrary decisions. In Australia,
there are different levels of courts (state and federal) which, depending upon
their function, are concerned with adjudicating four main sources of law (see
Hughes and Leane 1996: 44-7):
the common law or law made by the previous decisions of courts in
England and Australia;
legislation or statutory law made by parliament and their official orders,
regulations and rules or 'subordinate legislation' which may be made by
the public service and statutory authorities;
constitutional law based upon the Commonwealth Constitution and
adjudicated by the High Court of Australia;
international law concerns the relations between sovereign states and
may be influential where a country signs an international treaty;
customary law is that which is based upon the authority of conventions,
traditions and common practices maintained by a people. It may not be
codified in writing but known through and the oral culture of a society.
The constitution of a polity is often regarded as the most important source of
law. This leads us to examine in more detail the nature of a constitution.

2.What is a Constitution?
A constitution is, at its most basic level, a means of arranging a political
system. It provides:
a fundamental legal framework and organisational structure for
government; and
for the various functions and powers given to the different political
institutions within the polity;
Because a constitution is regarded as a higher or more fundamental source of
law, it is usually more difficult to change than ordinary laws based on acts of
parliament.
A constitution will also tell us something about the values on which a political
system is based. In other words, a constitution is concerned with legal and
political institutions, with their functions and procedures and also with broader
civic values. Sometimes these values are indicated in the preamble to the
constitution. Although most preambles are largely symbolic, constitutional
courts may use them to clarify the meaning of other parts of the constitution.

United States of America

'... to form a more perfect union, establish justice, ensure domestic

tranquillity, provide for the common defence, promote the general
welfare, and secure the blessings of liberty ...'

Republic of Ireland

'... to provide the common good, with due observance of

Prudence, Justice and Charity, so that the dignity and freedom of
the individual may be assured, true social order attained, the unity
of our country restored, and concord established with other
nations.'

Republic of South Africa

5
 '... to lay the foundations for a democratic and open society in
which government is based on the will of the people and every
citizen is equally protected by law.'

Constitutional Centenary Foundation. 1998. Quest for a preamble.

Round Table No. 2: 1, 3.

A constitution establishes formal relationships between the government and

the governed. In this sense, a constitution achieves a basic requirement in a
democracy, which is to protect its citizens from arbitrary decisions of
government. In the Australian case, the constitution does this by placing limits
on the powers of government and by allowing for the establishment of a final
arbiter of governmental power, the High Court of Australia.
It is important to recall that whilst the Australian Constitution is a written
document, a constitution can also be unwritten. The British Constitution for
instance does not exist as one single document, it has evolved over hundreds
of years of legal and political practice but it is nowhere systematically codified
into a single document. The British Constitution, again unlike the Australian,
can be changed or amended by normal parliamentary processes. Its
structures, procedures and values are located not only in various laws but
especially in established political practices or conventions. The British
Constitution provided the fundamental political values or conventions which
inhere in the Australian Constitution which are that government should be
representative, responsible and accountable to the people.
This mix of the British and American styles of government, has brought with it
some distinctive Australian difficulties. The Constitution for instance, whilst
establishing the respective powers of the federal compact, does not specify
nor even refer to, the unwritten conventions upon which the Westminster
system of government operates. Responsible government, the primacy of the
House of Representatives and even the office of the Prime Minister, are
nowhere mentioned in the Australian Constitution, yet these constitutional
conventions play a very important role in the successful functioning or process
of the Australian Constitution.

Read:R.A. Hughes and G.W. Leane, 1996. The Australian federal

constitution, pp. 117—37.

Nonetheless, the Australian constitution does set out clearly the separation
and division of powers between different levels of Australian government and
different institutions of governance. One of the major point of contention over
the last decade is the role of the High Court judgements in altering the
balance of power between Commonwealth and State governments.

3.The Separation and Division of Powers

As we have discussed in earlier weeks, the Australian system of government
is a unique. It combines an American-style federal system and its attendant
written Constitution, with the Westminster system of parliamentary
government. In Australia, as in America, the Constitution is the backbone of
this system. Unlike their American counterparts, few Australians would know
its key features, let alone be able to recite its opening lines or 'preamble'. Of
particular interest here, is that our Constitution nowhere mentions 'citizens' or
'citizenship'.
Yet, the Commonwealth Constitution does set out the relative powers
between three different arms of federal government. It assigns distinct powers
to three areas:
legislative power or the power to make new laws resides with the
Parliament which comprises members elected by the people
executive power which is the power to implement and administer law is
exercised by the government but formally resides with the Governor-
General who acts on advice from the ministers
judicial power which is the power to interpret and enforce law resides
with the judiciary and courts.

In the Australian system of government, legislative and executive power come

together in the Parliament to conform to the Westminster system of ministerial
responsibility to Parliament which also lies at the heart of our system. In short,
the Parliament makes the laws, the Executive carries them out, and the High
Court determines their constitutionality or legality. In Australia political power
is maintained separately from judicial power, guaranteeing the independence
of the judiciary. This is what is meant by the separation of powers.
As we saw in an earlier week, the Australian Constitution also establishes the
formal structure of federalism, setting out the respective powers of the federal
and state jurisdictions. This is known as a division of powers. Established at
7
the turn of the century and often requiring interpretation, this division of
Commonwealth and State power is in turn arbitrated by the High Court of
Australia, the only court in Australia the existence of which is guaranteed
under the Constitution. The High Court therefore, plays a crucial role in the
functioning of Australia as a federation. Insofar as the Court reflects the
separation of powers between parliament, the executive and the judiciary, its
independent operation is equally crucial to the functioning of Australia as a
democracy. Justice Mary Gaudron takes an even stronger view (The Highest
Court ABC-TV 26 May, 1998) when she says: 'It is the glue that binds society
together.'
Justice John Toohey of the High Court of Australia has written an article which
upholds the role of the courts and judicial independence in a liberal
democracy. Central to his argument is the claim that judicial review of
parliamentary legislation is not opposed to democracy but crucial to its
defence. In Toohey's (1993: 160) view, the rule of law enables courts to fulfil
their responsibilities to protect citizens against the abuse of legislative and
executive power.

Read:J. Toohey, 1993. A government of laws, and not of men?

Public Law Review 4(3): 158—74.

One of the points to be drawn from Toohey's article is that there are a number
of sources of substantive law: customary law, common law, natural law.
Implicit in his analysis, however, are also two other sources of law, namely
constitutional law based upon national constitutions, whether written or
unwritten and parliamentary legislation or statute law. The next section takes
up a number of the issues concerning the methods by the High Court of
Australia has come to its decisions in constitutional and other cases.

4.Legalism or Constitutionalism in Australia?

As a written document with the High Court as its arbiter, judicial
interpretations of the Australian Constitution has been influenced more by
legal considerations than political ones. As Hocking (1997: 243) points out:
The dominant legal discourse in Australia which developed during the interwar
period was a strict legalism which rested on a literal reading of judgments and
legislative texts in order to arrive at their meaning and thence their application.
A constitution that is treated solely as a legal document will tend to be
resistant to change, and stamped with the prejudices of the 19th century.
Because of this tendency towards legalism many critics have argued that it
has become increasingly irrelevant to problems confronting the Australian
polity today.
Advocates of legalism, however, claim that High Court justices can and ought
to interpret the Constitution according to a strict, or literal, meaning of its
written provisions. The legalists contend that such judicial decision-making
ought not take into account contextual factors of a political, economic or social
nature. It is argued that, in this way, legalism prevents judges from engaging
in politics and that politics is thereby kept out of the Court's deliberations. This
legalist approach aims to concentrates on the written text of the Constitution
and pays little or no attention to either the intention of a particular legislation
or contemporary political expectations.
Critics of legalism argue that such an approach necessarily minimises, or
even ignores, the attendant unwritten conventions which are an important
feature of our Constitution and which ought to be considered in its
interpretation. Opponents of legalism also argue that it presupposes an
artificial distinction between political and legal decision-making. This has the
consequence that in so doing legalism keeps the law out of step with
changing interests and values and treats today's society as irrelevant. On this
view, the essential adaptability of the Constitution is lost. The late High Court
Justice Lionel Murphy clearly enunciated his opposition to the then
predominant legalism throughout his decade on the High Court. In 1982
Murphy (cited in Hocking 1997: 243 fn 1) argued:
the widely held view that judges should not consider economic, social or
political factors in reaching their decisions is a political approach to law-
making, calculated to preserve the existing order. ... It is impossible, for
example, to understand the recent judicial differences in Australia over
statutory interpretation in income tax and other areas without looking at the
social and economic setting. Most judges understand this, and occasionally a
few of them say it.
Critics of legalism would favour instead a notion of constitutionalism which
sees the constitution not simply as a legal document but as a blueprint for
governance built around a set of values shared by the community. A liberal
constitution which is understood in this way, as a legal and political framework
for governing a liberal democratic society, will need a degree of flexibility. This
flexibility is essential if the basic constitutional principles are to continue to
operate throughout changing historical circumstances.
All this suggests that for constitutionalists, the constitution will take its
meaning from the values of the society within which it operates, and not the
other way around. Societies do not remain the same over time, and even in
the hundred years since the Australian constitution was first planned, debated
and established, progress in technology, for example, has raised issues which
could not have been foreseen. The Australian Constitution was drafted before
the coming of radio, before television, before the introduction of a national

9
social security system, and even before the development of a national
economy. It is hardly surprising that in some areas, the Constitution quickly
became anachronistic, and for some, a deliberate barrier to radical or
progressive governmental change.
For the Australian Labor Party in particular, the narrow legalistic focus of the
early High Courts' interpretations of the constitution gave rise in the immediate
years after federation to a very limited view of its possibilities. The constitution
quickly came to be considered as a restrictive and inflexible document, which
circumscribed many of the core economic platforms of the Australian Labor
Party, in particular its contentious socialisation objective. It was a view best
articulated in Gough Whitlam's seminal essay of 1957, 'The Constitution
versus Labor'. In this essay Whitlam drew attention to the deep conflict
between the constitutional foundations of the Australian politico-legal
institutions and the Labor party. The Labor party, Whitlam (1957: 16) argued,
'has been handicapped, ... by a Constitution framed in such a way as to make
it difficult to carry out Labor objectives and interpreted in such a way as to
make it impossible to carry them out.' Indeed, generations of High Court
Justices had ruled in concert with Whitlam's pessimism. As a result both of its
legal structure and its judicial interpretation, Whitlam (1957: 44) saw the
Constitutional framework as one 'which enshrines Liberal policy and bans
Labor policy'.

10

5.The High Court of Australia and Rights

A right is a claim made by individuals or groups that entitles them to be
treated in a particular way by other people or institutions. Although the
Constitution sets the formal guidelines for Australian government and law, it
has been a long-standing point of contention that the Constitution does not
specifically protect most of the political and civil rights that we would see as
fundamental to a liberal democratic society. The framers of our Constitution
believed that rights would be better protected by laws passed by the
Parliament rather than by specifying rights in the Constitution. There were,
however, vigorous arguments over the matter during the Constitutional
Conventions (see Williams 1996). Australia remains one of the few countries
in the world without a constitutional charter of rights. This means that rights in
Australia are neither inalienable nor inviolable. Rights are granted, protected,
limited and potentially removed by acts of government. For Hugh Emy this is
one of the weaknesses of the Australian Constitution.

Read:H. Emy, 1996: Citizenship, democracy and the constitution.

In S.R. Davis ed. Citizenship in Australia: Democracy, Law and
 Society. Melbourne: Constitutional Centenary Foundation, pp. 22
—33.

As Hugh Emy (Emy 1996: 25) discusses, despite the existence of section 41
which appears to guarantee the right to vote, the High Court has not ruled to
this effect.
The Constitution does not affirm the right to vote for all those over eighteen
years of age. Instead, sections 8 and 30 leave it to the Federal Parliament to
decide who shall vote in Federal elections.
Although the right to 'one vote, one value'–that each vote shall have an equal
weight may appear to be protected by section 24 of the Constitution which
states that the House of Representatives 'shall be composed of members
directly chosen by the people of the Commonwealth' (see McKinlay 1975/6),
the High Court has not affirmed this right. That is, there is no absolute
constitutional guarantee of political rights such as the right to vote, and the
notion of 'one vote, one value'. Furthermore, the constitution makes only
scattered reference to civil rights. For example, freedom of religion is
guaranteed under section 116; the right to a trial 'on indictment' to be by jury
protected under section 80; and section 52(xxxi) provides that property
acquisition by the Commonwealth should be on fair terms.
Yet even these apparently clear statements of civil rights have been subject to
unexpected legal outcomes. Trial by jury, which might appear to be enshrined
under section 80 has been read by several High Court decisions not to apply
to trials for charges not heard 'on indictment'. As interpreted by the High
Court, section 80 contains no effective guarantee of trial by jury, even in
serious cases, if that case is not heard on indictment. As Justice Murphy
pointed out in his dissecting judgment in this case, 'Parliament could provide
the death penalty for any offence' yet by making it an offence to be heard only
before a magistrate and not on indictment, there would be no jury trial, making
a mockery of the constitution. In Murphy's view (in Li Chia Hsing case 1982):
'The jury system is the main social defence against governmental and other
oppression, the main instrument for preserving the liberties of the people.'
Nevertheless, Emy points out that the High Court, particularly under the Chief
Justice Sir Anthony Mason, has found that there exists in the Constitution an
implied right to freedom of political communication and debate. Emy (1996:
31) summarises the argument:
The Court reasoned that since the Constitution could be presumed to
authorise a system of representative democracy, this in turn entailed freedom
of debate. This line of reasoning pointed the way towards the discovery of
other implied rights.
An important right more recently acknowledged by the court is the right to
legal representation. Although this had been taken unsuccessfully to the
bench in a well-known case in 1977 (McInnis), more recently the Court found
that such a right did exist (Dietrich). All cases must therefore ensure that legal
representation has been provided to an accused.

11
In many respects, the Mason High Court developed a jurisprudence, or theory
of law, that had been clearly enunciated earlier by the late High Court Justice
Lionel Murphy. Murphy was appointed to the High Court by the Whitlam Labor
government in 1975 and remained a justice until his death in 1986. Murphy
was a prominent proponent of the constitutionalism discussed above, which
led him to consider that,
the Constitution establishes both a legal and a political framework, not in
abstraction but for a democratic Australian society. It is through this prism that
we make sense of the written Constitution, transforming it from a literal text
into a living Constitution ... in which can be read implications of democratic
rights, human rights and the rule of law, what Murphy called the 'great
principles of justice' (Hocking 1997: 250).
In a speech to the National Press Club in 1980, however, Murphy (cited in
Hocking 1997: 250) made clear his view that rights were not being adequately
protected in Australia:
the leaders of our society proclaim to the nation and other nations that our
society, our laws, are conducted according to certain fundamental principles,
for example the rule of law–equal justice and opportunity for all, equal
protection of laws–and they state that everyone is entitled to live in freedom
and dignity. These are fine principles, regrettably they are not strictly
observed.
The ideals of law are most admirable. The problem is to get the courts to
implement in practice what the law proclaims to be in theory. The High Court's
success will be judged by the extent to which it does implement the great
ideals of justice and human rights.
This view has not received universal assent. Jeffrey Goldsworthy, for
example, has argued that judicial enforcement of rights has the potential to
harm democracy.

Read:Goldsworthy, J. 1995. Judicial enforcement of rights can

damage democracy. Australian 9 March: 9.

Chief Justice Gerard Brennan, who succeeded Sir Anthony Mason, takes up
the issue of judicial indepedence and outlines several of its foundations or
guarantees. His paper is the subject of criticism by John Hyde.

Read:Brennan, G. 1995. Towards a true people's court. Australian

27 July: 12 and
Hyde, J. 1995. Brennan's vision is flawed. Australian 4 August: 13.

Hugh Emy takes up a number of these issues to argue that the constitution
ought to be 'democratised'. Among the reforms he suggests is to devise and
insert a new preamble and incorporate a Bill of Rights into the constitution.
In considering the place of human rights in Australia we need to ask which
rights are essential to our democratic polity. Hugh Emy and Owen Hughes
(1991: 296) identify six types of rights in this context: political, civil, legal
process, economic, rights of equality and social rights. Each of these can be
detailed further as follows:
Political Rights
free and fair elections
one vote one value
Civil
freedom of speech
freedom of association
freedom of the press
freedom of religion
Legal Process Rights
freedom from arbitrary arrest
fair and speedy trial
legal counsel
presumption of innocence
protection against cruel and unusual punishment
protection against self-incrimination
Economic Rights
to own property
compensation on just terms if property is compulsorily acquired
right to work
right to with-hold labour
freedom of contract
to an adequate standard of living
Rights of Equality
equal protection under the law
against discrimination
Social Rights
education
privacy

13
 protection of cultural, linguistic and environmental heritages
As Emy asks, which of these rights do we consider fundamental to our system
of government, and therefore as requiring protection? Does this mean that we
need a Bill of Rights in Australia in order to protect these rights?

14

6.An Australian Bill of Rights?

The question of whether Australia should have a Bill of Rights has been a
point of political debate since before Federation. The framers of our
Constitution rejected the notion of a Bill of Rights incorporated within the
Constitution, preferring to leave such protections for the Parliament to
determine. This debate was given renewed impetus in the 1970s during the
stormy period in office of the Labor government under Gough Whitlam
(elected 1972 and again in 1974) which introduced a Human Rights Bill in
1974 under the then Attorney-General Lionel Murphy. This Bill was strongly
opposed by the Liberal and Country Party Opposition and did not pass
through the Opposition dominated Senate. Murphy's 'Why Australia Needs a
Bill of Rights', published in 1974 by the Attorney-General's Department, has
become one of the best known and most popular documents in this debate. It
provides an eloquent denunciation of the failure of the courts and parliament
to maintain basic democratic protections and the absence of many of these
rights at common law.
The former Liberal Prime Minister Sir Robert Menzies (Menzies 1973/4)
contributed a widely disseminated series of articles in which it was claimed
that the Human Rights Bill 1974 was unconstitutional, that it would involve the
High Court in political determinations and that, regardless of all these points,
democratic rights and freedoms were already adequately protected by
common law and responsible government. These arguments have been
revisited many times over the last three decades. Ronald Sackville and Harry
Gibbs canvass a number of the key issues.

Read:R. Sackville, 1995. Towards an Australian charter of rights.

Constitutional Centenary 4(4): 23—5, and
H. Gibbs, 1995. The legislative or constitutional protection of
human rights. Constitutional Centenary 4(4): 25—8.

In support of a Bill of Rights it is claimed that:

there would be clear limits placed on actions of government in terms of
 any potential interference in the exercise by citizens of their democratic
rights;
a Bill of Rights would operate as a constraint on the passage of
discriminatory legislation by either the Australian parliament or the
states;
a Bill of Rights would free citizens from their unprotected reliance on
judicial and legislative restraint;
a Bill of Rights provides an educative function, alerting citizens to their
rights and to the means of protecting them;
a Bill of Rights gives citizens a firm legal basis for the protection of
rights;
a Bill of Rights would place Australia on a firmer footing from which to
meet its obligations as a signatory to the International Convention on
the Protection of Civil and Political Rights.
Those against a Bill of Rights argue that a Bill of Rights:
could be seized upon by a radical High Court bench to accomplish
radical change;
would in some way permanently restrain the power of the Parliament in
a way that is incompatible with the principles of democratic
government;
would enable the judiciary to establish its own political agenda against
the wishes of the legislature;
is a creature of its time and will inevitably become another rigid
document that does not allow for changing social values and political
developments in its interpretation;
could be taken by governments and courts as establishing maximum
levels of rights to be upheld rather than setting a minimum standard.
Such a view would prevent the extension of further rights other than
those clearly specified in the Bill of Rights;
is ultimately unpredictable. Our own history of constitutional
interpretation should alert us to just how unpredictable the impact of
apparently unambiguous statements may be in skilled legal hands.
In 1994 the Parliamentary Joint Standing Committee on Foreign Affairs,
Defence and Trade presented a report which again recommended the
adoption of an Australian Bill of Rights. The topic continues to be a source of
political controversy.

15

15
Conclusion
This Study Week has drawn attention to a number of principles and legal
institutions that are critical for the effective operation of a liberal democracy.
Central concepts are the rule of law and the separation of powers. You have
also been introduced to a number of the Australian debates on these topics.
Of major importance is the Commonwealth Constitution and the role of the
High Court in Australian democracy. One of the key issues is whether the
High Court has, at times, usurped the powers of parliament or whether it is
simply performing its traditional role in a system of checks and balances.
These issues have often prompted debates about whether Australia ought to
have a bill of rights. In the next Study Week we shall examine in more detail
the nature of the political institutions of liberal democracy in Australia and
assess further whether they are fulfilling their various objectives.

Review for Week 5

Before proceeding, you ought to review your understanding of this

week's topic by:
(a) reading again the documents for this week and completing the
related Study Questions in the Workbook, for which there are no
answers provided.

Does Australia Need a Bill of Rights?

Author: The Hon Mr Justice David Malcolm AC
Chief Justice of Western Australia

Subjects: Australia Constitution (Other articles)

Human rights (Other articles)
Human rights law and legislation (Other articles)

Issue: Volume 5, Number 3 (September 1998)

Category: Comment

The Hon Phillip Pendal MLC;

Ladies and Gentlemen
1. I am very pleased not only to have been invited here today to speak to you
concerning an Australian Bill of Rights but also to provide my support for
Amnesty's ongoing efforts to promote observance of human rights throughout
the world. The guarantee of certain basic human rights to the individual is an
 important aspect of the observance of human dignity and integrity. There is
however a broad range of approaches to human rights adopted by countries
which share similar origins. The omission of a Bill of Rights from our
Constitution is one of the elements which marked it as different to the United
States Constitution from which a number of principles were derived. It was
not however an omission by accident. The inclusion of a Bill of Rights was
proposed and debated at the Constitutional Conventions which lead up to the
drafting of the Australian Constitution. Its inclusion was defeated, somewhat
ironically, on the basis that a 'due process' provision would undermine some of
the discriminatory provisions in place at that time, including those laws which
were enacted to the detriment of Aboriginals and Asian immigrants.

2. A number of attempts have since been made to amend the Constitution to

include a Bill of Rights. Commonwealth Parliamentary enquiries in 1929 and
1959 rejected the proposal. A referendum in 1942 which proposed inter alia a
limited measure of protection for freedom of expression and the extension of
freedom of religion to the States was also defeated[1]. In 1985 the Australian
Government introduced into the Commonwealth Parliament the Australian
Bill of Rights Bills. Following a strong and lengthy debate in the Parliament
the Government decided on 18 August 1986 not to proceed with the Bill. In
1988 the Constitutional Commission recommended an entrenched Bill of
Rights of the kind adopted in Canada and proposed that a new chapter be
added to the Australian Constitution for that purpose.[2] This proposal was not
taken up by the Government. However, referendums on a number of proposals
were held late in 1988. There were three human rights provisions which bound
the Commonwealth which it was proposed should also bind the States, namely
freedom of religion, compulsory acquisition of property only on just terms and
trial by jury. These proposals attracted a vote in favour of only 30 per cent.
This was the lowest "Yes" vote in any Commonwealth referendum to date.

3. The context in which the current debate over a Bill of Rights is occurring is
the impending celebration of the centenary of Australia's existing Constitution
in 1901. This event has helped stimulate a series of reflections on the
Constitution which have found their main political expression in the debate
over whether and, if so, when Australia should become a Republic. From the
standpoint of constitutional lawyers and the future of democracy in Australia a
more significant issue has been raised by the discussion of the need for
fundamental reforms to the Australian system of government. In the latter
context, a Bill of Rights has began to loom large as one of the component parts
of an overall package of recommended reforms.[3] At the Constitutional
Centenary Conference of 1991 to celebrate the Sydney Constitutional
Convention of 1891 a proposal to incorporate a guarantee of basic rights was
put at the forefront of the agreed statement of the Conference. The Conference
said:

"There was strong support for a guarantee of basic rights in some form,
entrenching basic rights and especially democratic basic rights."[4]

17
4. A similar consensus has been demonstrated at subsequent conferences and
conventions organised by or in conjunction with the Constitutional Centenary
Foundation which was established following the Sydney Conference.

5. Prior to considering the merits and pitfalls of a Bill of Rights it is important to

understand that certain individual rights are already recognised at common
law. The "common law", in its broadest sense, means judge-made law and
judge-developed law. As such, I include the interpretation of statute law, that
is, the law as enacted by parliament, and the interpretation of constitutional
provisions by the judiciary. The common law has protected civil and political
rights in four main ways. First, it has recognised and protected a number of
rights and freedoms which it has seen as fundamental. Secondly, responding to
the avalanche of legislation which regulates our conduct, it has developed
rules of statutory construction which limit the degree of legislative
encroachment onto our rights and freedoms. Thirdly, the Australian High
Court has in recent years begun to give new life to express guarantees in the
Constitution. Fourthly, some judges have suggested that limitations on
legislative competence to contravene fundamental rights are to be found in the
"peace, order and good government" formulae in our Constitutions, or in
implications to be drawn from the structure of the Australian Commonwealth
Constitution and the free and democratic nature of Australian society.[5]

6. For example, in the context of the right of an accused person to a fair trial, the
High Court has applied this as a general principle and found a new set of
circumstances which have been to held to have deprived an accused of that
right. This is a shift away from the traditional approach of looking at specific
circumstances, such as a misdirection to the jury or the wrongful admission of
evidence, to see whether the accused was deprived of a fair trial. In McKinney
v The Queen the majority said that:

"The central thesis of the administration of criminal justice is the

entitlement of an accused person to a fair trial according to the
law." [6]

7. This was the justification for laying down a rule of practice requiring a trial
judge to give a warning to the jury about uncorroborated police evidence of a
confession. This was in the context where corroboration was readily available
by means of video recording of interviews with the police. Brennan J
dissented on this point saying that the improvement sought to be made by
laying down a rule of practice, which would in future require investment in the
necessary equipment by the executive government, was not a proper function
of a court and was "more appropriate to the exercise of legislative power than
it is to the exercise of judicial power".[7]
8. The right to a fair trial was also the basis for holding in Jago v District Court
of NSW[8] that a court has the power to permanently stay proceedings if by
reason of undue delay there will be a situation in which there will be "nothing
a trial judge can do in the conduct of the trial (which) can relieve against its
unfair consequences"[9]. This approach was taken a substantial step further in
Dietrich v The Queen[10] in which it was held that while the common law of
Australia did not recognise the right of an indigent accused person on trial for
a serious offence to be provided with counsel at public expense, a court had
power to stay criminal proceedings that will result in an unfair trial. This
power extends to a case in which representation of the accused by counsel is
essential to a fair trial. This will be so in most cases in which an accused is
charged with a serious criminal offence. In such a case an application for an
adjournment or a stay by an accused who is indigent and who is unable to
obtain representation through no fault of his or her own should be granted
until representation is available. This requires a prognosis to be made about
the likely unfairness of the trial if the accused is unrepresented. If the trial
goes ahead without representation and is unfair, the conviction will be liable to
be quashed on the ground that there has been a miscarriage of justice. This
was so held by Mason CJ, Deane, Toohey, Gaudron and McHugh JJ. Brennan
J dissented, again asserting that the court was making an unwarranted
intrusion into executive and legislative functions by declaring a common law
entitlement to legal aid.[11].

9. In terms of international human rights norms, Australia's accession to the

Optional Protocol to the International Covenant on Civil and Political Rights
has brought "to bear on the common law the powerful influence of the
Covenant and the international standards it impacts".[12] It may be expected
that the results of individual petitions to the United Nations Committee could
have similar results in Australia to those which have occurred in England as a
result of the accession of the United Kingdom to the European Convention on
Human Rights and the decisions of the European Court. It must be
acknowledged, however, that many of the rights recognised by the
International Covenant on Civil and Political Rights are not currently
protected by the common law.

10. In Australia, some recent developments in the common law have been
expressed to be made consistently with international norms. In Mabo v
Queensland [No 2] in which Brennan J (with whom Mason CJ and McHugh J
agreed) said:

"The common law does not necessarily conform with international

law, but international law is a legitimate and important influence on the
development of the common law, especially when international law
declares the existence of universal human rights. A common law
doctrine founded on unjust discrimination in the enjoyment of a civil
and political rights demands reconsideration. It is contrary both to
international standards and to the fundamental values of our common
law to entrench a discriminatory rule which, because of the supposed

19
 position on the scale of social organisation of the indigenous
inhabitants of a settled colony, denies them a right to occupy their
traditional lands.[13]
This was a significant part of the rationale for abandoning the fiction of terra
nullius which was the basis for the "discriminatory rule" of the common law
departed from in Mabo.

11. Australia is a party to the United Nations Convention on the Rights of the
Child under which the best interests of the child are declared to be a "primary
consideration" in all relevant actions concerning children.[14] In Minister for
Immigration v Teoh[15] it was held that the provisions of the Convention were
relevant to a decision to deport the father of children. While such provisions
were not incorporated into domestic law, accession to the Convention resulted
in an expectation that those making administrative decisions in actions
concerning children would take into account as a primary consideration the
best interests of the children, who were themselves Australian citizens. Their
father was not, although he had applied for resident status. Mason CJ and
Deane J[16] said that the provisions of an international Convention to which
Australia was a party, especially one which declares universal fundamental
rights, may be used by the courts as a legitimate guide in developing the
common law. It was acknowledged, however, that courts should act in this
fashion with due circumspection, when the Parliament itself has not seen fit to
incorporate the provisions of a convention into domestic law. A departmental
instruction which, in effect, ignored the interests of the children was held to
render the proceedings invalid for want of procedural fairness.

12. While the common law has developed to protect some civil rights, the
question of the ability of the common law to develop so as to deal with
ongoing infringements of those rights was examined by the Chief Justice of
South Australia, the Hon John Doyle (then Solicitor General of South
Australia) and Ms Belinda Wells in 1992. They strongly suggested that "no-
one should underestimate the capacity of the common law to adapt to change
in society.[17] It was conceded, however, that there are two "obvious
limitations" on the ability of the common law to protect human rights. The
first is the principle of parliamentary supremacy which, in the context of
common law protection of civil rights, holds that parliament may legislate to
alter, restrict or negative any protection created by the common law. The
second is the basic approach of the common law to the question of rights in
terms of the identification of what is left after the limitations and restrictions
imposed by law. For example, freedom of speech is a residual right, being
what is left subject to the application of the law of defamation, contempt,
sedition, official secrets, confidentiality, etc.

13. To these limitations, two further limitations might be added. The first is that,
while the courts are increasingly responding to society's attitude to human
rights, the capacity of the common law is limited to the extent that it is
opportunistic. No general statement of relevant rights can be developed in
 response to the individual case. The Court is restricted to a declaration of
rights as between the parties before it. The second is that the development of
the common law is dependent upon the doctrine of precedent. To the extent
that the courts develop an approach based upon general rights such as the right
to a fair trial or the right to freedom of speech or expression, the approach
must be a reasoned and principled, based on a balancing of the interests
involved and with an eye to consistency[18] with previous decisions.

14. In England, the limited capacity of the common law to adapt and change is
illustrated by the decision of the House of Lords in relation to blasphemous
libel in R v Lemon: R v Gay News[19]. The question was whether an intent to
blaspheme was an element of the offence. It was held that it was not. Lord
Scarman observed that it was his duty to state "the existing law in a form
conducive to the social conditions of the 20th century"[20] and for "a plural
society which recognises the human rights and fundamental freedoms of the
European Convention".[21] His Lordship, however, was not prepared to
extend the principle of blasphemy to any religion other than Christianity. This
would involve a change in the law which he was prevented from making
because it was "shackled by the chains of history".[22] In other words, if there
was to be a change it was a matter for the legislature not the courts.

15. Apart from the limitations upon the development of the common law to
protect human rights that I have outlined, it should also be remembered that
there is also a current controversy in Australia regarding the extent to which
the judiciary should be entitled to develop and make new law. In recent times,
the judiciary, an in particular the High Court, has been the subject of a great
deal of criticism by the public, politicians and some media for seeking to make
new law. This is said to be the exclusive function of Parliament. The process
of judges and courts developing, making and occasionally changing the
common law has been going on for a very long time. The common law
developed and modified by judges over the centuries is as much a part of our
law as an Act of parliament. Parliament is supreme however. Within the limits
of its constitutional power parliament can change the law which has been
declared by the Courts. There is no reason to change this system. As Justice
McHugh of the High Court pointed out in 1988:

"Law-making by judges is likely to remain controversial, but its

existence seems essential. The need for and the right of the judge to
make law in appropriate cases is now well-established."[23]

Doyle and Wells, however, caution that:

"In considering the proper rule of the common law in the protection of
human rights we have to bear in mind that in Australia the High Court
is working within a system in which there is no Bill of Rights,
entrenched or unentrenched, to guide it. The court has no clear

21
 mandate from society to strike down legislation for contravening
human rights and no guidance as to the rights to be protected. The
courts might act more confidently in this area if parliament provided
some indication of the rights which are to be given the greatest
weight."[24]

16. A systematic and extensive survey of popular opinion conducted in 1993

found that 54 per cent of Australians did not think that human rights are well
protected under the existing system. Seventy-two per cent were in favour of
the Adoption of a Bill of Rights and 61 percent believed that the final decision
in relation to human rights matters should rest with the courts rather than the
Parliament.[25] The same survey also found that the views of most politicians
were significantly different from those of the people they represent. Thus 78
per cent of Members of Parliament, at both Commonwealth and State levels,
concluded that human rights were already well protected within Australia. Not
surprisingly, 76 per cent also considered that Parliament rather than the courts
should be the final arbiters in matters affecting human rights. While the views
of Labor Parliamentarians (89 per cent of whom favoured a Bill of Rights)
were radically different from those of their Liberal Party and National Party
colleagues (with 68 and 78 per cent, respectively, opposed), there are
presumably at least some who support the views expressed by the former
Commonwealth Minister of State, Mr Gary Johns. According to Mr Johns,
"the debate about the rights of individuals and the rights of minority
groups . . . has now reached a point of diminishing returns". In his view, there
is, there are "no more great gains that can be made in the battle for rights . . .
for women, migrants, blacks, homosexuals or every other subgroup". In Mr
Johns' opinion, this view is shared by most Australians: "the majority don't
associate with any of these groups and there is a point at which the vast
majority say, 'I have had enough, society is reasonably fair . . .'."[26]

17. This approach seems to rest on two assumptions. The first is that the status
quo will not deteriorate any further and therefore no additional protection is
required. The second is that the rights of groups such as women, Aborigines,
gays and migrants are already protected to the greatest extent possible, or at
least feasible, within our society. Anti-discrimination legislation exists at both
State and Commonwealth levels. Other commentators have also expressed the
view that the existing degree of protection is essentially adequate. Thus, for
example, one author has concluded that "we have not been blind to the threat
to liberty and we have developed our own ways of dealing with it. In practice
our civil rights are as safe here as anywhere on earth."[27]

18. This perspective finds scant support in other quarters. In 1986, the then Chief
Justice of the High Court of Australia, Sir Anthony Mason, wrote that:

". . . the common law system, supplemented as it presently is by

statutes designed to protect fundamental human rights, does not protect
 fundamental rights as comprehensively as do constitutional guarantees
and conventions on human rights . . . The common law is not as
invincible as it was once thought to be".[28]
This view is echoed by Hilary Charlesworth who considers that:

"Common law protection of rights is minimal; the Commonwealth

government's power to legislate to implement international obligations
with respect to human rights has been only partially and inadequately
exploited; the States generally have given the protection of human
rights a low legislative priority; and Australian participation in
international human rights instruments has often been diffident."[29]

19. The question whether Australia should have a Bill of Rights and, if so, in what
form and with what content is essentially a political question. Opinions differ
regarding whether it is proper for a judge to express an opinion one way or
another on the question. In 1988 a former Chief Justice of the High Court, Sir
Anthony Mason, announced that he had changed his mind on the answer to the
question and was now in favour of a Bill of Rights. He did so because
Australia was going against the international trend and was getting out of step
with comparable countries such as Canada.[30] The former Chief Justice, Sir
Gerard Brennan, has been more circumspect when he said in 1992:

"We could introduce a Bill of Rights and have it administered by our

existing courts, but would Australians wish that to be done? The voting
at the last referendum suggests that the answer is resoundingly
negative. However, non-party political interest in and discussion of the
Constitution in the last decade of this century, restores the question to
the agenda. I do not propose an answer to the question for reasons
which I shall mention. The question is essentially political and should
be answered by reference to the political needs that might be satisfied
by an entrenched Bill of Rights and the burdens which might be
imposed by its introduction."[31]

20. When considering what we mean by a Bill of Rights, Lord Browne-Wilkinson

has provided some useful terminology. He uses the term "the full Bill" to refer
to the rights that are judicially enforceable and that cannot be overridden by
Act of Parliament. An example of this is the Bill of Rights of the United States
of America. What His Lordship calls a "half-way Bill" would be enforceable
against the executive and, in the absence of clear statutory enactment to the
contrary, it would be presumed that Parliament in passing legislation did not
intend to infringe these rights. However, a half-way Bill would not give the
courts the power to invalidate an Act of Parliament. The half-way Bill is
typified by New Zealand's Bill of Rights.[32]

21. The arguments for and against a Bill of Rights have been well expounded in
the 1987 Report of the Advisory Committee to the Constitutional Commission

23
 on Individual and Democratic Rights.[33] I now briefly outline these
arguments, some of which I have already touched upon.

22. The arguments in favour of a Bill of Rights include the following:

1. The Inadequacy of Present Constitutional Provisions. Many
submissions made to the Committee drew attention to the narrow scope
and interpretation of existing Constitutional guarantees. Section 80 of
the Constitution provides that "The trial on indictment of any offence
against any law of the Commonwealth shall be by jury . . .". This
guarantee has been side-stepped by the Commonwealth Parliament
legislating to have offences tried summarily, ie, without indictment,
even when offences attract the possibility of substantial terms of
imprisonment. In 1928 the High Court held that the Parliament was not
bound to provide for a trial on indictment for offences carrying more
than one year's imprisonment.[34] This situation led Deane J to
comment that: "The guarantee of trial by jury which is contained in
s.80 of the Constitution has been drained of most of its strength by the
combined effect of the Parliament and the decisions of this Court . . .".
[35] Other concerns include the right to vote and freedom of religion.
There is no direct right confirmed by section 41 of the Commonwealth
Constitution. The right is derivative and dependent upon the right to
vote at an election "for the more numerous House of the Parliament of
the State". Freedom of religion may be cut down by State laws except
to the extent restricted by anti-discrimination legislation.
2. The Inadequacy of the Common Law. I have already dealt with the
debate surrounding this issue, so I will not dwell on it except to say
that the Committee noted that usually such rights that are recognised
under the common law are those left after all the exceptions and
limitations to them have been dealt with. Take the example of free
speech: the right to free speech at common law is that which is left
after the censorship laws, defamation, contempt of court, contempt of
parliament, sedition, criminal libel, blasphemy, radio and television
programme standards, and many other minor limitations have made
frequently and quite proper but occasionally excessive inroads.
3. Statutory Erosion of Rights Upheld by the Common Law. It was also
emphasised to the Committee that all common law rights and freedoms
can be overridden by otherwise valid Commonwealth, State and local
government legislation. The will of the legislature is paramount and no
matter how harsh or oppressive it can override the individual's
common law rights and freedoms.
As Millhouse J said in Grace Bible Church v Reedman[36]:
". . . in the absence of a Bill of Rights . . . the citizens of this
State do not have rights which may not be overridden by Act of
the South Australian Parliament."
It is sometimes said that Parliament is the great bastion of our liberties.
 However, a government wishing to be seen as doing something
decisive when confronted with a problem that is inconveniencing many
people or causing public pressure for a response can and will infringe
fundamental rights and freedoms of all. It is argued that the approach
of the Parliamentary process to human rights is illustrated by the
relative absence of any safeguards in the law-making system itself as
against infringements of these rights. Much legislation passes through
Parliament at considerable speed, most of it has not been looked at in
any great depth, except by a small number of public servants and
possibly the opposition spokesperson's relevant Minister. The amount
of legislation enacted by Parliaments has increased greatly, and that
increase is exceeded only by the amount of delegated legislation that is
produced.
Legislation is supposed to be scrutinised by the Parliament, but the
strong party discipline and the entrenched power of the executive have
diminished the safeguard significantly. In most of our legislatures there
is little or no evidence of effective safeguards in respect of delegated
legislation. In recent times, however, lack of control by the party in
Government in the Senate has seen much closer scrutiny of
Commonwealth legislation.
4. Enhancement of Democratic Government. The twentieth century trend
toward judicial review of governmental actions would be extended by
entrenching limits on governmental power in the Constitution. The
idea that governments are not rulers but the servants of the people has
only slowly gained acceptance in Australia. Once it is appreciated that
governments exist to govern for the people, it follows that individuals
have rights which governments cannot transgress or transgress only to
the extent necessary to uphold the rights of other people.
5. The Educative Role of Constitutional Rights. It was suggested to the
Committee that the entrenchment of rights into the Constitution would
have a crucial educative role. It would be more than a legally
enforceable catalogue of fundamental rights and freedoms. It would
alert people to their own rights and confront them with the rights of
others and the need to develop compromises between conflicting
rights. Australians would also have a comprehensive means of
educating themselves about the significance of their fundamental rights
and freedoms, and so they would acquire a readily accessible set of
principles by which to measure the conduct of the government.
6. An Additional Guide for Judicial Interpretation. Some submissions put
to the Committee suggested that the inclusion of a Bill of Rights in the
Constitution would provide a statement of rights which could be used
in the interpretation of legislation. At present there is no touchstone
which judges can use to interpret legislation so that it can achieve its
objectives.
7. A Means of Meeting Australia's Treaty Agreements. It was submitted
to the Committee that the growth of international concern about human

25
 rights had given rise to an expectation that civilised countries will
guarantee for their citizens clearly stated and readily enforceable
rights.
When in Government, both major political parties have undertaken
obligations on behalf of Australia in international law by ratifying
treaties such as the International Covenant of Civil and Political
Rights, the International Covenant on Economic Social and Cultural
Rights, the International Convention on the Elimination of All Forms
of Discrimination Against Women, the International Convention on the
Elimination of All Forms of Racial Discrimination and the
International Convention on the Rights of the Child. Australia has also
signed numerous International Labour Organisation Conventions. To
date Australia has met its international obligations to varying degrees.
In some cases it was suggested to the Committee that Australia had
failed to fulfil its obligations to protect relevant human rights, and
constitutional entrenchment of a Bill of Rights would ensure that these
obligations are fulfilled. The entry into international treaties has no
direct impact on Australian domestic law in the absence of legislation
to implement the treaty, particularly when the international obligation
undertaken by the Commonwealth can only be implemented by a State.
The significance of an international treaty to which Australia is a party
was discussed by Mason CJ and Deane J in Minister for Immigration v
Teoh.[37]
23.

i.The arguments against a Bill of Rights in Australia have principally relied upon
the protection afforded by the common law. Sir Harry Gibbs, former Chief
Justice of the High Court, has said:

"In Australia there seems to be no reason to fear such gross violations

of human rights as those which regularly occur in some other
countries. . . . The common law has proved to be a flexible and
effective instrument for the protection of freedom and the mitigation of
injustices that might otherwise be brought about by ill-considered
legislation.[38]

0.Some of the arguments are based on the contention that a Bill of Rights would
confer too much power on the courts and, in particular, the High Court. Others
contend that existing constitutional protections are sufficient.

1.Another argument against a written Bill of Rights is that many rights may be left
out and over the course of time, those that are left out may be perceived to be
of lesser value and consequently more readily susceptible to extinction.[39]

2.Another perceived problem with a Bill of Rights is that rights and freedoms tend
 to be stated in very general terms. Many of the articles in the defeated
Australian Bill of Rights granted "rights" and "freedoms" in very general
terms without qualification. The United States allow influences such as the
political philosophy or values of the person called upon to interpret such
legislation to result in widely differing interpretations. This has often been
used as an example of the danger inherent in broad statements of principle.

3.When legislation such as the proposed Australian Bill of Rights gives very wide
powers to courts to decide issues which may involve questions of social
policy, the fear is expressed that results may differ according to the social or
political philosophy of the judges that decide each case. In these circumstances
it is argued uncertainty and injustice may be introduced into the law. This
seems to be the most fundamental argument against constitutional
entrenchment of a Bill of Rights. A number of commentators see the issue of
rights the subject of a Bill of Rights as the exclusive domain of the elected
representatives of the people. An active judicial role in relation to a Bill of
Rights is therefore seen as an affront to "Parliamentary sovereignty" and the
inherently democratic nature of the operation of Parliamentary system. It is
contended that the judges are not elected, not representative and not
sufficiently accountable. This argument proceeds on the basis that broad
written principles entrenched in the Constitution will probably result in
incompatibility with the present structure of the common law and will involve
judges in the policy and politics of a nation to an excessive extent.[40]

4.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.[41] 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.

5.It is disappointing to note that to date in Australia there has been very little
sustained thought or research devoted to the fundamental issues of the detailed
nature and content of a Bill of Rights. As Professor Philip Alston has pointed
out:

"As long as this continues to be the case, Australia runs a strong risk of
either acquiring a Bill of Rights by default, or by sanctioning the
adoption of one on the basis of poorly informed and ill-thought
through political deal-making. It is therefore time to grasp the nettle
and engage in a sustained national debate over the options which are
realistically available to us as we enter into the twenty-first century.

27
 [42]

6.In the various debates regarding the Australian Constitution in the lead up to the
Centenary of Federation in 2001 the main focus has been on the questions
whether Australia should become a republic and, if so, when and in that event
how should the Head of State be selected, elected or appointed. The question
whether there should be a Bill of Rights does not seem high on the national
agenda, despite the opinion polls, because of the current level of controversy
regarding the extent of the judicial power. There are also critical views
expressed in the States regarding the external affairs power of the
Commonwealth. This criticism has been directed to accession to the United
Nations Convention on the Rights of the Child and other treaties without
adequate consultation with participation by the States. This has been a
recurring issue at Constitutional Conferences and Conventions and other
discussions promoted by the apolitical Constitutional Centenary Foundation.
Issues of human rights tend to be debated in a context where the real questions
are sometimes obscured by economic, racial and other issues which lead to
those promoting the cause of fundamental rights being referred to as "bleeding
hearts" and "do-gooders".

7.I hope that the approaching millennium will see a rational and detailed national
debate on the desirability, scope and content of a Bill of Rights. While much
has been achieved through the development of the common law, the courts
have had to pay a price for this in terms of criticisms that they have taken too
much power to themselves. The guidance provided by a Bill of Rights would
be one way of both assisting the courts as well as re-asserting the supremacy
of Parliament. At the same time it will need to be acknowledged by Parliament
that the courts will become more involved in the weighing of competing
considerations, including those of a policy nature in the interpretation and
application of a Bill of Rights, whether entrenched or unentrenched. This is
what has occurred in Canada. While some decisions have been controversial,
the status of the Supreme Court of Canada has been enhanced by its work in
this area.