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Human Rights in Australia and the effect of a Bill of Rights on the Australian Legal
System
It is expressed in the ‘Universal Declaration of Human Rights’ that human rights appertain to
everyone, everywhere and every day.1 With the uproar of totalitarian regimes and the
atrocities of World War II, development of constitutions was dominated by human rights
concept, and many countries opted for a written Constitution to protect human rights. While
Australia has signed to most of the human rights treaties laid out by the UN, it is alone,
amongst western liberal countries, that does not have a comprehensive fundamental human
rights instrument at the constitutional level. The first part of the essay will scrutinize how the
Ancient Common Law and the Commonwealth Constitution structures the Australian legal
system to protect human rights. The latter mechanism will be discussed with reference to
separation of power, and the system of representative and responsible government. Section
two of the essay will expound the advantages and disadvantages of a bill of rights in the
Australian legal system on two main effects: Firstly, the interaction of a bill of rights with the
current political system and secondly, with the legal system. The prime contention is its
constrains the parliament and the executive from creating relevant legislation to protect
individual rights. On the flip side, legislative and common law measures have gaps and are
alone insufficient to protect certain rights. It is argued that a bill of rights will aid to correct
deficiencies that exist in the current system. Secondly, it explores the effect of a bill of rights
in terms of legal prerogative. While a bill of rights provides individual with legal prerogative
to challenge alleged rights contravention in court, it is argued that this may lead to an
‘explosion of litigation that clogs up the courts.' Moreover, it could operate as a ‘rogue
1
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd
plen mtg, UN Doc A/810 (10 December 1948)
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criminal.'
Part 1
Ancient common law rights derive from the common law of England and are integral to the
Although the common law is restricted to parliamentary ruling, the protection is substantial
Products Pty Ltd v Australian Workers’ Union.3 Where a statute is ambiguous, the courts are
Australia is a party.
There are five express rights entrenched in the constitution. To name a few these include
protection against acquisition of property on unjust terms (section 51 (xxxi)), the right to a
trial by jury (section 80) and freedom of religion (section 116). These rights are explicit and
do not need further judicial interpretation. Implied rights, on the other hand, are ambiguous
and, therefore, derive from constitutional interpretation of the court. A notable implied right
includes inter alia: the right to vote (section 41). The Nationwide News Pty Ltd v Wills and
Australian Capital Television Pty Ltd v Commonwealth4 is also a salient case where the Court
ruled the right to freedom of political communication as the freedom of speech. The right to
freedom of speech has been held as an implied right from sections 7 and 24, and this right has
2
Wik Peoples v Queensland (1996) 187 CLR 1 at 182.
3
221 CLR 309.
4
(1992) 177 CLR 1.
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been clarified by the courts as necessary if people are to choose their representatives freely.5
Equally significant is the case of Dietrich v The Queen6, a case that identified the rights to a
fair trial, legal representation and access to justice as fundamental to common law.
The common law rights upholds Australian democracy while protecting some fundamental
human rights. Moreover, the precedent set in Mabo v Queensland7 allows courts to
reinforce the ancient common law as a source of human rights. Furthermore, the flexibility of
common law allows for rights to be amended on a case-by-case basis, which may better
Structural Protection
The structure of Australian legal system protects human rights through Separation of Powers,
Representative Government and Responsible government. Lord Lloyd expresses that human
rights ‘is best provided by the detailed legislation of a democratically elected sovereign
parliament.’8
Separation of powers is the notion where power is shared amongst the three branches of
government, namely: executive, legislative and judicial, where their ‘functions are respective
and powers are mutually exclusive.’9 The first three chapters of the Constitution embody
their respective powers and define how they interact. In combination with the Rule of Law,
Separation of power protects people from misuse of power. Overarching is the bicameral
system that entails with separation of powers. The bicameral system provides for both
judicial review and a system of ‘checks and balances’ to ensure that no government has
5
Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v
Commonwealth (1992) 177 CLR 1.
6
(1992) 177 CLR 292.
7
[No 2] (1992) 175 CLR 1,42.
8
A.J.M. Milne, ‘Should we Have a Bill of Rights?’ (1977) 40 The Modern Law Review 389-
396, 389.
9
Peter Butt (ed), Concise Australian Legal Dictionary (LexisNexis Butterworths, 4th ed,
2011) 530.
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unfettered power. The Constitution requires the legislation to be passed in both upper and
lower Houses of the Parliament for it to become an Act. This ensures that the law reflects the
best interests of voters. Furthermore, the upper House serves as the role of review. It can
of power by mandating the Members of the Parliament responsive to the people at elections.
It means to protect the rights of ‘a majority of individuals.' Section 7,24,28 and 13 of the
Constitution promote the representative government principle for this reason. Regular
elections should incentivise Members of Parliament to endorse the needs and views of the
Responsible government is in charge of both the legislature and executive to uphold their
Committee. The committee examines both bills and legislative instruments for compatibility
with all Australia’s international human rights obligations and reports to Parliament. This
mechanism is political and persuasive in a way that the Parliament is responsible for acting
responsibly and respond to the needs of the society, facilitate the operation of representative
Section 128 of the Constitution is significant to human rights protection in Australia. This
section of the Constitution entails that a referendum may only change a Constitution. It
requires a double majority for a proposed referendum that is passed through parliament to be
successful. It is dire for a document like the Constitution to be stabled. The strict procedure
protects individuals from the government making not approved amendments to the
constitution.
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Part 2
Political Interference
Previous debates on whether Australia should introduce a bill of rights in their Constitution is
centred around its impact on the integrity of Australian democratic structures and processes.
The provision of a single document to define the rights of an individual stifles the ‘motion of
no confidence’10 in Australian legislatures and put a limitation upon the laws that reflect the
will of the majority of the people. This also threatens the ‘majoritarian democracy’11 which is
integral to the Australian legal system. Opponents of the bill of rights are impressed by how
well parliamentary democracy functions in Australia, and so argue that citizens can trust our
legislators to reflect the need of the society. Furthermore, all States and Territories have anti-
discrimination legislation and human rights agencies that yield human rights protections
through laws and policies. Some direct incorporations are the Racial Discrimination Act
(Cth) 1975 and the Sex Discrimination Act (Cth) 1984. A corollary to this argument, as
expressed by Kirby J, is that a set of rights is constricted to new human rights issues and
‘protect those that are no longer important.’12 Today’s bill of rights may not reflect the
human rights problems in the future. Furthermore, the flexibility of parliamentary law
making to amend or make statutes as the need arises is not a feature a bill of rights has to
offer. In this way, it would require a costly and arduous constitutional amendment to change
Further concerns arise concerning the courts. An addition of a constitutional bill of rights
could interfere with current politics. The politicization of the tribunals is well exemplified by
the United States, where power is shifted from elected representatives to the judiciary. An
10
Michael Kirby, ‘A Bill of Rights for Australia – But do we need it?’ (Speech delivered at
the Legislative Council Chamber, Queensland, 4 October 1994).
11
Andrew Byrnes et al, Bill of Rights in Australia (University of New South Wales Press,
2009) 55.
12
Ibid.
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entrenched bill of rights prevails over Parliamentary statutes, which would allow an unelected
branch of the government a larger flexibility in decision making amounting a form of judicial
It is a fair contention that the introduction of a bill of rights will infringe parliamentary
sovereignty and shift emphasis from majoritarian democracy to protecting the rights of the
Parliament should value ‘the primacy of the individual’14 and distrust popular democratic
rights of individuals may lead to the ‘tyranny of the majority.’15 Current human rights
protection framework fails to highlight social inclusion to safeguard the rights of minorities,
such as the Indigenous society and refugees. It is often noted that Parliaments do not deal
with every problem, especially those that are controversial. These problems are, if at all,
often left to be solved by the courts. Mabo16 is an example where the absence of a bill of
rights delayed the judicial process to reach a decision. The United State Congress negated
this legislative inaction by invoking the bill of rights in the courts. A bill of rights will
provide guidance and power to the court to make just decisions for difficult questions.
While the common law has developed to protect some individual rights, it is susceptible to
certain limitations. The common law is contingent in the sense that the parliament can
13
Byrnes et al, above n 11, 56.
14
Brian Galligan, ‘Parliamentary Responsible Government and the Protection of Rights’
(Papers on Parliament No 18, Parliamentary Library, Senate, 1992).
15
Ibid.
16
Mabo v The State of Queensland [2] (1992) 175 CLR 1.
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‘legislate to alter, restrict or negate any protection created by the common law.’17 It is frail
within a meaning that the Parliament has the power to extinguish the right. Furthermore, the
ex post facto functioning of the common law doctrine limits the addressing of individual
rights. It is not possible to develop a general human right without a case. The judicial scope
to interpreting human rights on a case-by-case basis may contravene individual rights and
also lead to incremental development of relevant principles. The provision of a written source
of the fundamental constitutional document to human rights will ‘restrict the creativity of the
judge.' A Bill of Rights will mandate the courts to approach the interpretation of statutes
Legal Prerogative
A bill of rights may distort the legal system by providing citizens legal prerogative to
challenge their alleged rights. This may ‘clog up the courts’18 and only benefit lawyers more
than anyone. It is feared that lawyers will render every issue a matter of human rights to
‘complicate, delay and exercise control’ litigations.19 Although this is a reasonable claim,
there is insufficient evidence to support it. Byrnes notes that only two percent of appellate
cases gave rise to major human rights issues on the Human Rights Act 1998.20 Moreover,
courts have established a system to filter out weak claims to negate the ‘clogging of the
defences to elude prosecution. Although, evidence indicates small cases where individuals
evade conviction due to technicalities. In fact, enforcing human rights in criminal courts has
17
David Malcom, ‘Does Australia Need a Bill of Rights?’ (1998) 5(3) Murdoch University
Electronic Journal of Law 22, 12.
18
Byrnes et al, above n 11,65.
19
Ibid.
20
Ibid.
21
Ibid, 66.
22
Ibid.
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often lead to development and reinforcement of the criminal justice system.23 The availability
of a bill of rights would ensure the legitimacy of the people withal and educate people to
Conclusion
This essay has demonstrated how the Australian law protected human rights and outlined the
possible effects of introducing a bill of rights to the Australian legal system. The discussed
human rights protection mechanisms include Ancient Common Law Rights and Structural
Protection. The advantages and disadvantages of a bill of rights are expounded regarding its
correlation with parliamentary democracy and its role in legal systems. It suggests that while
a bill of rights would stifle the Australian polity of democracy, it would place value upon
shielding the minority from rights incursions, who are often infringed from society. It also
individuals with legal prerogative. The decision to be made upon a bill of rights debate is one
for all Australian. There will always be a trade-off. However the bill of rights debate is one
23
Byrnes et al, above n 11, 66.