Should Australia Have a Bill of Rights?

A bill of rights is a list of the fundamental rights of citizens of a country. It exists to protect the rights of individuals from being violated by the state or by other individuals. A bill of rights can be entrenched or unentrenched. An entrenched bill of rights is contained within the constitution of the country, meaning it cannot be changed by an act of parliament but only by referendum. An unentrenched bill of rights is an ordinary act of parliament which can be altered or repealed by parliament.

Australia is the only liberal democracy not to have either a constitutionally entrenched bill of rights or rights or a national human rights act. A debate on whether Australia should have a bill of rights has raged since the 1970s.

What human rights protections does Australia have?

Australia has never had a bill of rights to offer protection of human rights in a single document. Victoria and the ACT are the only jurisdictions within Australia to have enacted human rights acts. Rights have been found in the constitution, common law and legislation.

The Australian Constitution does not contain a bill of rights, but it does contain some limited rights protections. The rights contained in the constitution are the right to vote (Section 41), the right to trial by jury (Section 80), freedom of religion (Section 116), protection against acquisition of property on unjust terms (Section 51), and prohibition on discrimination on the basis of state of residency (Section 117). The constitution also contains an implied right to freedom of political communication. State and federal laws that are inconsistent with rights provided by the constitution can be challenged in the High Court.

Australia also enjoys rights derived from common law, such as the right to a fair trial.

Arguments in favour of a bill of rights

In recent years, many Australians have been pushing for a bill of rights. This has occurred in response to events that have been perceived as human rights abuses that a bill of rights could guard against. Examples of such abuses include the Northern Territory Intervention rolled out in 2008, which many feel to have infringed on the rights of Aboriginal Australians and the treatment of asylum seekers in detention. Increasingly draconian federal ‘security’ legislation, being passed in response to fears of terrorism, have also prompted calls for human rights protections as civil liberties sometimes conflict with such legislation.

Supporters of a bill of rights argue that parliament cannot be trusted to protect human rights and that a bill of rights is needed to strengthen and consolidate human rights protections and ensure that legislation passed conforms to human rights principles.

Supporters argue a bill of rights would encourage social inclusion, provided a means of redress to minorities suffering unfair treatment.

Other arguments in favour of a bill of rights for Australia are that this would improve Australia’s international reputation and would allow for current and past human rights violations to be addressed.

Arguments against a bill of rights

Opponents of a bill of rights for Australia argue that such a measure would fetter the powers of parliament to legislate as appropriate and would give an undesirable amount of power to the courts. They argue that parliament can be relied on to protect our human rights and not to pass laws that contravene these rights.

A bill of rights that is constitutionally entrenched is very hard to change. The US constitution, for example, contains protections of rights such as freedom of speech and the right to bear arms. The right to bear arms contained in the second amendment has meant, in practice, that it is very difficult for the US Parliament to legislate for gun control.

Other arguments sometimes advanced against a bill of rights are that such a piece of legislation would only benefit criminals and minorities, would clog the courts with claims and that Australians do not support such a move.

Recent attempts to pass a Bill of Rights

In 2010, the National Human Rights Consultation was established to investigate which human rights should be protected and promoted, whether these rights were sufficiently protected and promoted and how Australia could better protect and promote human rights. The committee recommended the passage of a federal human rights act together with other methods of addressing the promotion of human rights, such as education. The Rudd government did not follow the recommendation of a human rights act.

In 2017, independent MP Andrew Wilkie introduced the Australian Bill of Rights Bill into the house of representatives. This was a bill containing a codification of human rights entitlements contained in international human rights conventions, such as freedom of speech, freedom of religion and freedom from torture. The bill also contained a number of social and economic rights such as the right to adequate childcare and the right to an adequate standard of living. The bill sought to make Australian legislation invalid to the extent of its inconsistency with the rights provisions contained within it. The bill was defeated in August 2017.