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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

interference with the Australian democratic system. An introduction of a bill of rights

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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charter’ where emphasis shifts from majoritarianism to individual, such as an ‘undeserved

criminal.'

Part 1

Ancient Common Law Rights

Ancient common law rights derive from the common law of England and are integral to the

functioning of parliamentary democracy. The common law is referred as ‘the ultimate

constitutional foundation in Australia’2 and has a significant influence on constitutional and

statutory interpretation. It is a repository of human rights that are developed case-by-case.

Although the common law is restricted to parliamentary ruling, the protection is substantial

and constitute to ‘principle of legality,' as conceded by Gleeson CJ in Electrolux Home

Products Pty Ltd v Australian Workers’ Union.3 Where a statute is ambiguous, the courts are

mandated to interpret it by Australia’s obligations under a human rights treaty to which

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

implement international human rights mechanisms as an ‘interpretive aid,' which may

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

reflect the need for a changing society.

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

amend the bill to reflect the need of society better.

The political principle of representative government functions to prevent government’s abuse

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

majority of the people who voted in the MP.

Responsible government is in charge of both the legislature and executive to uphold their

democratic mandate to negate misuse of government power. The parliament, which is an

establishment of the Constitution, entail committees to scrutinise government actions and

expenditure, known as the Commonwealth Parliamentary Human Rights Scrutiny

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

government and to protect individual from the abuse of government power.

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

rules introduced by the judiciary.

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

imperialism. This infringes Australia’s key political element of ‘simple majoritarianism,’13

where an undelegated body of government represents the rights of society.

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

minority or marginalised groups. A popular American liberal assumption is that the

Parliament should value ‘the primacy of the individual’14 and distrust popular democratic

values, such as majoritarianism. In alignment to this American polity, democracy in action is

imperfect, and the significant dependence on an unconstrained Parliament to protect the

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

concerning the written rights and freedoms of the individual.

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

courts’ phenomenon. Furthermore, a bill of rights has potential to operate as a ‘rogues

charter,’21 protecting ‘undeserving criminals’22 by allowing them to use human rights

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

become more aware of their fundamental rights.

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

explores the role of a bill of rights as a representation of social legitimacy providing

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

that should not be overlooked.

23
Byrnes et al, above n 11, 66.

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