Bill of Rights - a survey of opinion

by Lydia McKenzie

'[The Constitution] says very little about what it is to be Australian. It says practically nothing about how we find ourselves here - save being an amalgamation of former colonies. It says nothing of how we should behave towards each other as human beings and as Australians(1)'

Introduction

There is an emerging view that because of the difficulties, false starts and failures that the Bill of Rights campaign should be abandoned. Professor W Sadurski from the University of Sydney has warned against "rehashing the conventional and rather stale debates about 'the merits and demerits of a Bill of Rights', the debate in which it seems, everything that could have been said, has been said (2)."

While from afar it may appear that all the constituent parts of a human rights regime necessary for a healthy civil society are present, upon close examination, it is clear that this regime is inadequate to protect domestic human rights. Of course we may try to continue to depend on the existing law, the parliamentary process and indirect methods of quasi-constitutional reform, such as refinement and development of the High Court's interpretive methodology and the creative use of existing constitutional powers, or even the media to protect and enforce human rights. These measures have already been moderately successful in making significant improvements to the state of human rights law in Australia. To the politicians upon whom we depend to make these changes, who are constantly used to bowing to political compromise, maintenance of the status quo must indeed appear attractive.

However, can we afford to continue to take this approach? The theoretical inadequacy alone would not be a valid argument for massive reform in this area if in practice individual rights and freedoms were respected and significant examples of human rights abuse did not occur. However, a quick glance at our recent history raise such human rights violations such as the treatment of asylum seekers, of the mentally ill and aged and of indigenous Australians. Overall, in areas ranging from public health, education, housing, immigration and rural policy, it is evident that the rights of minority groups and the civil rights of individuals are not only largely unprotected, but are sometimes directly violated by Australia's domestic legislation.

Moreover, there is an increasingly relevant argument that a Bill of Rights would provide an accessible statement of community values (3) and help to improve government function, which is subject to political and arbitrary government action. A formal Bill of Rights could also take us a step closer to corporate responsibility for human rights abuses perpetrated against both employees and the community in which they operate, the need for which was exemplified by the recent events surrounding the building and construction corporation James Hardie. (4)

Gough Whitlam in 1972, said that we should not set limits on what we can achieve together, for our country, our people and our future. (5) Australia should aspire to the lofty ideal of a comprehensive system of uncompromised human rights in Australian law, in the pursuit of a justice that will 'promote human rights and fundamental freedoms for all'. (6)

This paper will begin with a discussion of the background to this call for constitutional reform. It will then examine the current domestic human rights regime, particularly focusing on the emerging role of international law in domestic human rights law and the development of constitutional law. Next, the paper will discuss the various models for the introduction of a Bill of Rights and the most desirable model for Australia.

Human rights legislation

Legislative protection has been the primary method by which successive governments have incorporated human rights principles into Australian law. This has by and large been undertaken in a piecemeal fashion by dealing with discreet issues in separate pieces of legislation. (20)

The piece of human rights legislation with the most universal application is the Human Rights and Equal Opportunity Act 1986 (Cth), which established the Human Rights and Equal Opportunity Commission (HREOC), Australia's national human rights protection body. (21) There are a number of other Commonwealth statutes which provide protection against specific human rights abuses (22), including rights for indigenous Australians, privacy rights and anti discrimination rights. The protection offered by the various pieces of Federal, State and Territory legislation is without great controversy and evidences the significant improvements Parliament has made in protecting human rights, including landmark achievements such as the introduction of the basic wage and the development of alternative dispute resolution mechanisms in the workplace. Moreover, under the present Constitutional provision in s109, federal legislation will override state where the two are inconsistent. This gives the Commonwealth significant power to protecting human rights against action by States and Territories. (23)

However, there are several limitations on the effectiveness of this makeshift 'patchwork' of piecemeal legislation. Furthermore, the ad hoc approach favoured by governments to date has failed to create a comprehensive and complete statement of our aspirations in regard to human rights and there is considerable difficulty in legislating to protect human rights which are often difficult to define and identify in absolute terms. Also, while a piece of legislation may appear to offer a certain protection on paper, it can prove to be ineffectual in practice. (24)

Statute law is also vulnerable to amendment or repeal by subsequent legislation. Under the principle of parliamentary sovereignty, the government of the day can act to remove a right or freedom by legislation just as easily as it can protect it. (25) This is of significance given the current climate in which such social issues have fallen low on the list of priorities as a political issue. (26)

Such important and fundamental human rights should not be vulnerable to the vicissitudes of populist politics, particularly given the decreasing role of the legislature in policy development and the decline of robust parliamentary debate. (27)

A recent example of the potential for abuse in the absence of any formal protection of human rights was the series of anti-terrorism laws introduced after the events of September 11 2001 in the USA, which give unprecedented powers to the government and its agencies undermining such rights and protection as against arbitrary detention and privacy. (28)

Furthermore, a fundamental flaw in such an ad hoc approach is that it fails to cover the full spectrum of international human rights which Australia has an obligation to uphold and enforce, such as those protected under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). (29)

Many of these rights have already been comprehensively incorporated by many other western nations, but not by Australia. (30)

Common law rights

Australian common law also provides for the protection and enforcement of certain human rights principles, where statute is silent. (31)

Examples of common law human rights protection include the right of counsel when accused of a serious crime; (32) the obligation of a court to refuse to allow an unfair trial to proceed; (33) the interpretation of permissible limits on freedom of movement in Australia (34) and native title rights, developed under Mabo v Queensland (No 2). (35)

However, like statute law, the common law fails to offer a complete regime for the protection of human rights. The common law is restricted to a assertion of rights as between parties. (36) Accordingly it is very difficult for a broad standard of rights to be created or consistently applied. (37)

Further, the common law suffers from its own inherent limitations, which have restricted its potential to play a larger role in rights protection. Common law rights, such as liberty, are often treated as a 'negative' right, that is, there is such an entitlement unless superseded by statute or common law. Moreover, the Court has a duty to be consistent with prevailing precedent in its judgment. Furthermore, any principle developed by the Court may be quickly overridden by Parliament to the extent that it is inconsistent with legislation over the same subject matter. (38)

Regardless, the ability of the common law to develop to become a more effective protector of human rights should not be understated. As common law rights are rights which have been developed by the courts, rather than by the legislature, their ongoing development is only restricted by judicial imagination and the evolution of legal theory. (39) In the event that any a Bill of Rights were enacted, common law human rights could not only co-exist with it, but would continue to develop under its aegis.

Rights arising under international law

It is international law which offers one of the more exciting opportunities for the protection and development of domestic human rights. The application of international law in the domestic arena has attracted controversy in recent years. However, in light of a lack of Constitutional protection for basic human rights, it is not entirely surprising that Australia has had to look towards the international arena for a statement of its obligations and the human rights of its citizens.

International law arises from a mixture of international convention, international custom, general principles of law as recognized by civilized nations and subject to Article 59 of the UN Convention, judicial decisions and the teaching of highly qualified publicists. (40)

The most important direct source of international law for Australia has been the many international treaties adopted by the executive. There are a significant number of such arrangements; however, the primary international human rights treaties to which Australia is a party include:(41)

Universal Declaration of Human Rights (the UDHR), (42) which is a 'statement of rights to which [in 1948] no country objected'; (43)
International Covenant on Economic, Social and Cultural Rights (the ICESCR), (44) which calls for progressive implementation (45) by State parties;
International Covenant on Civil and Political Rights (the ICCPR) (46) which calls for immediate implementation (47) by State parties.

There are also a number of specific human rights instruments that deal with specific aspects of human rights law to which Australia is a party and thus raises additional international human rights obligations(48).

Customary law which applies to Australia includes such rights as the right to life, liberty and security of person, equality before the law and equal protection of the law, freedom from arbitrary arrest, detention or exile and various economic, social and cultural rights. (49)

Australia's international human rights obligations also arise out of the operation of customary international law and also a special branch of it known as jus cogens. (50) International human rights considered to be in the category of jus cogens include 'the prohibitions on slavery, genocide and racial discrimination.'(51)

However, while there is a profusion of international human rights law, few such international human rights norms have been specifically incorporated into Australian municipal law, including such fundamental treaties as the ICCPR and ICESCR, which protect, for example political and civil rights, as discussed above.

The consequence of this at the Federal level is that if a person's international human rights are breached in Australia, there is little capacity to have this remedied in Australia. (52) This has resulted in a situation where Australian citizens are increasingly turning to international law and UN treaties to seek vindication of their rights (53). Such a method of direct recourse to the international system is not ideal.

However, international human rights instruments do have an impact on the domestic legal system beyond enactment (54). As noted by Professor D Kinley and P Martin from the Castan Centre for Human Rights Law, informal institutions, policy and other processes for human rights protection often supplement the more formal legal devices for human rights implementation. These influence policy through such bodies as the Attorney-General's Department and the Department of Foreign Affairs and Trade, as well as the HREOC (55) and the assorted State and Territory Equal Opportunity Commissions and Anti-Discrimination Boards.

Also, while it is not expressly provided for in the Constitution, the High Court has been willing to extend the capacity for international human rights laws to be applied through the domestic law, thus partly remedying this situation. Accordingly, international human rights law is now being applied in Australia's domestic courts by the Court in four main ways (56): directly, through the enactment of the provisions of a treaty ratified by Australia in an Act of Parliament, (57) or if unincorporated, by the founding of a 'legitimate expectation'; (58) as a tool to aid the interpretation of domestic legislation; (59) as a source of assistance in the development of the common law; (60) and, contentiously, as a tool to interpret Australia's constitution. (61) This has improved human rights protection and has provided better access to redress through the domestic system for those whose human rights have been breached, where the international law acceded by Australia has not yet been enacted by an Act of Parliament.

This application of international law is a reflection of what is happening in the global arena. Increasingly domestic courts are using international law as a reference as the boundaries between State and international interests blur, with the result that domestic affairs are becoming increasingly under international scrutiny (62).

It is expected that over time, international law will become a more influential and valuable resource, and the author awaits with anticipation to see the effect of the 'legitimate expectation' principle raised in Teoh and to what extent international law will be used to mould the Constitution to more closely resemble the very different needs and aspirations of today's Australia. As stated by A Mullins and C Saunders, from the Centre for Comparative Constitutional Studies at the University of Melbourne:

'from John Locke and Immanuel Kant to our days, the greatest philosophers have urged humans along a dual path, to democratically constitute their national polities and to redesign the international arena...whether those in power wish it or not, a shared world popular culture, for better or worse.'(63)

However, at the present time, international human rights law has not been fully implemented nor does it operate directly in Australian municipal law. It is inadequate to protect against the violation of human rights in Australia.

Constitutional rights

Essentially, however, human rights protection is best dealt with as a constitutional issue and there are a number of express and implied rights in the Constitution which can be argued to have implications for human rights.

Express rights are those rights directly protected by provision in the Constitution. The few express human rights in the Constitution include: the right to vote; (64) the right to trial by jury; (65) the right to freedom of religion; (66) the right to freedom from disabilities or discrimination on the basis of State residence; (67) the right to review government action; (68) the right to freedom of interstate travel; (69), acquisition of property on just terms (70). Several of these provisions have been frequently applied to strike down Federal and State laws inconsistent with the rights protected within the provisions. (71)
However, it is submitted this provision of fundamental freedoms does not go nearly far enough. The Constitution does not directly refer to such basic rights as the right to privacy; the right to health or education, the right to freedom of expression or such other basic conditions of human dignity (72).

Moreover, the value of the freedoms which do exist in these provisions is questionable. For example, the drafting of these provisions has been both problematic and limiting, (73) and the language used is often anachronistic. (74) In some cases, the protection offered by an express constitutional right does not extend equally to all citizens (75). Additionally, the High Court's approach to interpretation of these provisions has been extremely narrow, (76) particularly in regard to political and civil rights. (77) The protection has thus often been of little utility.

Implied rights

In recent years the High Court has shown a willingness to depart from the literalist approach to constitutional protection espoused in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (78) and, in the past few decades, has accepted that human rights may be implied by the structure and language of the Constitution. (79) Implied rights are recognized ad hoc, at the Court's discretion, an example of which rights is the Court's recognition of the freedom of political communication. (80) Other implied freedoms that have received some Court support include the freedom of equality (81) and the freedom of association. (82)

However these implied rights are also subject to considerable uncertainty. For example, the extent of implied rights is unclear and their existence is controversial. Members of the Court have been inconsistent in the application of the implied rights, there has been disagreement between the members of the bench regarding the existence of, and basis for, such rights (83) and the Court has expressed frustration at the paucity of implied rights that do exist in the Constitution (84). Furthermore, the constant renewal of the members of the Court increases this vulnerability to reinterpretation and revision (85).

On balance therefore, as a result of uncertainties, inconsistency and interpretation, both express and implied rights in the Constitution offer little protection of human rights. However, these rights are still capable of a wider operation than has so far been granted by the Court.

To this end, the Court has already begun to explore the boundaries of our express rights which should be expanded further, such as seen in Kirby J's decision in Cheng v The Queen (86) where his Honour argued that framers of the Constitution did not intend, nor did they enjoy the power, to create a constitution that would exist as it is forever, and in the Court decision in Polyukhovich v Commonwealth, (87) which explored the possibility of rights being implied from the separation of powers in the Constitution and the protection of judicial process (88). Such approaches, given depth by emerging principles (89), for example, in international law, may significantly widen the protection offered by the Constitution.

Consideration of a Bill of Rights

In light of the inadequacies of the status quo, a more radical alternative would be to introduce a formal entrenched Bill of Rights, which would provide a comprehensive charter of universally recognized human rights for Australians. Already, there have been numerous attempts at both State and Federal level to introduce some form of a Bill of Rights into Australia.

In the State arena, but with one recent exception in the Australian Capital Territory, (90) all attempts at change have failed. In NSW, the NSW Parliament's Standing Committee on Law and Justice carried out an inquiry into a Bill of Rights initiated by the then Attorney General Jeff Shaw. This was in defiance of the position taken by the Premier, Bob Carr, who had been quoted as stating that a Bill of Rights was unlikely to occur while he had the position of Premier. (91) In the end, no Bill of Rights was recommended. Despite apparent popular support in the submissions received by the committee, it was not prepared to recommend that the Government should introduce any such measure. (92) Instead of a Bill of Rights, the report recommended that Parliament become 'a more effective guardian of human rights through such measures as the establishment of a legislation review committee.' (93)

There have also been attempts at the Federal level, which have also been unsuccessful in introducing a comprehensive regime. Attempts include a referendum in 1944 to insert guarantees of free speech and expression and extend to the States the guarantee of religious freedom in s116; (94) a referendum in 1967 to remove negative references to Indigenous peoples from the Constitution and to extend the races power to allow the Commonwealth to pass laws for their welfare; (95) a Human Rights Bill in 1973 which would have implemented the ICCPR in Australia; (96) an Australian Human Rights Bill in 1985; (97) the constitutional commission and 1988 referendum which was to recommend a revision of the Constitution in order, among other things, to 'ensure that democratic rights are guaranteed'; (98) the 1998 constitutional convention and 1999 referendum which initially addressed human rights in a proposed preamble; (99) as well as various bills from independents, such as the Human Rights (Mandatory Sentencing for Property Offences) Bill 2000 introduced by Senator Bob Brown, of the Australian Greens, in response to the Northern Territory legislation on the same topic. (100)

Changed context

There are several factors which have changed the context of the debate since these failures which make the introduction of a Bill of Rights not only more desirable, but more probable. These include the approach taken by the Court in creating a quasi domestic Bill of Rights, as raised above, the emergence of an authentically universal and increasingly effective international human rights regime, the impact of globalisation, as well as the persistence of coexisting debates regarding other areas of constitutional reform such as in regard to federalism and the republic debate. Moreover, it is arguable that the ACT's adoption of the Human Rights Act 2004 (ACT) may act as a conditioner for the rest of the country, and could encourage other jurisdictions within Australia to investigate this initiative.

The scepticism about the value of such established guarantees of rights, including the claim that a Bill of Rights is incompatible with our concept of democracy. (101) and would upset the Federal balance, (102) increased litigation, etc and the argument that such a regime would be difficult to design, implement and enforce, is now largely unsustainable. This is particularly true when you consider the variety of models that have been successfully implemented globally, and that Australia is now one of the few Western countries without a Bill of Rights of some description.

Possible models

There are many unexplored opportunities for the introduction of a formal human rights regime. The existing New Zealand, Canadian, UK and South African models offer considerable insight into the different rights protection regimes for Australia to consider in developing its own Bill of Rights. (103) These models all seek in differing ways to maintain the delicate balance between the three arms of government, especially in regard to the roles of parliament and the judiciary. These include arrangements by which subordinate legislation may be quashed or ignored, which include provision for declarations of incompatibility; arrangements by which a charter of rights has the status of ordinary legislation and therefore no superiority over other legislation, and arrangements with legislative override clauses. Furthermore, in light of concerns regarding parliamentary democracy, many of these schemes provide for pre-enactment scrutiny of bills for any potential inconsistency, a measure which is already in place in the Australian Senate.

New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights is a non-entrenched statutory charter of fundamental rights and freedoms, which has the status of an ordinary act of parliament. (104)

There are three categories of civil and political rights protected under the Bill:

rights associated with 'life and security of the person', including the right to refuse to undergo medical treatment;

democratic and civil rights, which range from electoral rights to freedom from discrimination and the rights of a member of an ethnic, religious or linguistic minority to enjoy, with other members from that minority, 'the culture, and to profess and practice the religion or to use the language, of that minority'; and

rights relating to 'search, arrest and detention rights'. (105)

The New Zealand Bill of Rights does not include any rights relating to Indigenous peoples or the rights under the Waitangi treaty (106). Pre-existing rights protected under New Zealand law which are not referred to in the New Zealand Bill of Rights remain valid, and the Act applies to all legal persons, which includes corporations.

It should be noted that the architecture of the model means that the New Zealand Bill of Rights Act has limited legal effect in that is only to be preferred over ordinary legislation and public actions (107). The Bill of Rights cannot, either directly or by implication, override other inconsistent legislation. Moreover, this has been further weakened by a provision within the Act which has been interpreted to mean that in the event of a conflict between the Bill of Rights Act and any other statute, the other statute is to prevail (108).

On the other hand these limitations have should not be overstated; the legislation has had a significant impact in New Zealand, particularly in regard to criminal law and procedure. There has been an enormous amount of case law on the subject and the Court of Appeal has insisted that the Bill of Rights Act is to be given a purposive interpretation (109). As Philip Joseph, Associate Professor of Law at the University of Canterbury, has observed: "we hear criticisms today for what the Act has achieved, not for what it has not achieved". (110) Nevertheless, it remains that whether there is a conflict or inconsistency with other legislation, then now amount of interpretation can come to the assistance of the Act (111)

Canadian Charter of Rights and Freedoms 1982

The adoption of a Bill of Rights in Canada was a two-step process. Canada first adopted a statutory Bill of Rights in 1960, the effect of which was greatly limited by interpretation by the Canadian judiciary. In 1982, the Canada Act created the Canadian Constitution, in which the Charter of Rights and Freedoms 1982 (the Charter) was incorporated. The Canadian Charter is one of the few constitutions which operate nationally and sub-nationally. (112)

The Charter set out various categories of rights drawn from national and international sources:

fundamental freedoms (including conscience and religion, thought, expression and association);

democratic rights (the right to vote, the maximum duration of legislatures and their minimum annual meeting times);

legal rights (procedural rights in criminal matters and the right to an interpreter in all proceedings);

official language rights and the education rights of minority language groups.

The Charter also referred to aboriginal and treaty rights of the indigenous peoples. These rights are enforceable, and remedies can be granted by the court as deemed appropriate and just.

The Charter has constitutional status in Canada, and therefore any law inconsistent with the Charter has no force or effect to the extent of that inconsistency. However, some of its provisions can be overridden by an Act of the Canadian Parliament or of a provincial legislature, if done so expressly (113). Further, there are two provisions which restrict its operation. Section 1 qualifies the rights and freedoms by making them subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The second, section 33, which was inserted at the last minute as the price of the provinces' agreement to the Charter, allows any Canadian legislature to exclude legislation from most of the Charter's operation by express declaration for (renewable) five year periods.

The Charter's reception has been mixed. As a result of its enactment, the Canadian Supreme Court has, controversially, been called upon to examine a number of social and political issues (114). Criticism of this outcome has ranged from arguments that the Court is now unduly political to the criticism that, in their duty, the Court has failed to promote any real social justice. It has also been argued that the Charter has failed to address the real causes of social injustice it was introduced to remedy (115). Another issue with the Charter has been the misuse of its provisions by various groups and corporate bodies to avoid legislative restrictions designed to prevent them from harming and exploiting others (116). This model exemplifies the argument that a bill of constitutional rights alone does not advance real social justice, but that this requires major cultural, political and economic change.

British Human Rights Act 1998

Another model for comparison is the British Human Rights Act 1998 (UK) (the Human Rights Act), which recently came into operation on 3 October 2001.

Under the Human Rights Act human rights do not become part of Britain's substantive domestic law. Instead, the legislation requires that all other legislation is to be read and given effect to in a way that is compatible with the European Convention on Human Rights (117). It further requires public authorities to act in accordance with Convention rights (118). However, a public authority will not have acted unlawfully under the Act if as a result of a provision of primary legislation it could not have acted differently. These rights are enforceable, and remedies can be granted by the court (119).

Significantly, this model preserves parliamentary supremacy in the UK and promotes dialogue between the three branches of government regarding human rights protection. Courts are unable to strike down legislation incompatible with Convention human rights standards; instead they can make a formal declaration of incompatibility, thus raising the issue with parliament who may amend legislation if they deem it appropriate.

The success of the Human Rights Act is yet to be fully tested. However, already it appears to have had a positive effect on the UK legal culture, for example in regard to the recognition and protection of prisoners' rights.

South African Bill of Rights

Another model for a human rights regime is the South African Constitution of 1996, which included a Bill of Rights. The South African model was introduced through massive constitutional reform following a time of social, economic and political turmoil.

The South African Bill of Rights is extensive in its protection of rights. It includes:

standard civil and political rights;

economic and social rights including access to health care, food and security; and

other fundamental rights; such as property rights.

The South African Bill of Rights applies to all laws and to all the organs of State and also applied directly in private relations. The provisions of the Bill of Rights may be restricted (as in the Canadian Charter) only by limitations that are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

It may be said that the rights and freedoms articulated under the Bill of Rights in South Africa are, realistically, aspirational. It cannot be denied that there are massive cultural, political and economic barriers in South Africa in particular which hinder the achievement of such lofty aims. However, there have already been some important decisions under the Bill of Rights which illustrate the significant effect that such articulation can have. For example, under the new laws, the South African judiciary decided that under existing immigration law, same-sex partners of permanent South African residents were to be treated in the same way as spouses (120).

Such a thing makes South Africa one of the world leaders in this area. In another decision decided under the interim Constitution, S v Makwan (121) the death penalty was declared unconstitutional because it violated human dignity, the right to life, the right not to be punished cruelly and inhumanely and the right to equal protection of the law. Particularly significant have been such decisions as Grootboom (122) of the South African Constitutional Court which have given considerable force to economic and social rights.

A desirable model

These models suggest a variety of ways to introduce fundamental rights into Australia. What is evident from this study, is that the better models introduce new measures into the domestic system in a more gentle manner and retain a balance between the executive, judicature and legislature, rather than defer almost completely to one or the other.

Professor Hillary Charlesworth from the Australian National University has suggested that the Canadian two-stage model is the most suitable model for Australia. (123) This approach was also recommended by the Australian Law Reform Commission in its report, Equality Before the Law, in 1994 (124). Substantial constitutional reform as seen in South Africa would be unlikely to be accepted by the Australian public and there would be significant difficulty implementing such reform. The two-stage model would allow some time for State and Federal legislatures and courts to become used to working with rights guarantees before they become entrenched. There should also be means for parliamentary scrutiny of draft legislation to ensure its consistency with human rights standards, which is present in all of the described models and also in the new ACT Human Rights Act 2004.

Under this Bill of Rights, the Judiciary should be responsible for the interpretation of rights, which is consistent with the approaches taken in all four models mentioned above, although the British and New Zealand legislation assigns the final word on rights to parliament and the Canadian Charter contemplates legislative override of its provisions. This approach has been criticized in Australia on the grounds that such provision is undemocratic and beyond the expertise of judges. However, without exploring the merits of judicial activism, (125) when combined with a system of parliamentary scrutiny of draft legislation and the potential for legislative override of judicial decisions, an independent judiciary may be one of the best methods to protect rights.

It is also important to address the types of rights that should be protected in an Australian Bill of Rights. 'Human rights' have been criticized, particularly in the Asia Pacific region as being a largely 'western' concept. Moreover views are divergent on whether a bill should include only political and civil rights, or whether it should also consider economic and social rights, as well as community and cultural rights. (126) The UK and New Zealand models have been criticized by the UN Human Rights Committee on the basis that the regimes do not adequately incorporate international human rights law and do not offer sufficient protection.

An Australian model may initially introduce already accepted international statements of rights such as the ICCPR and the ICESCR upon statutory enactment. This may prompt less controversy and such conventions have an established international jurisprudence to aid interpretation. In the second stage of constitutional amendment, tailored rights reflecting our particular national context, such as specific indigenous rights may be included. Ultimately, in designing a model for Australia, care should be taken not to fossilize rights, or to bind Australia to transient public morality. The rights included in the final bill should be flexible so they can remain relevant as society evolves.

Reform of individual State Constitutions

An alternative to the above models is the individual reform of State and Territory constitutions or the enactment of individual statutory Bills of Rights. The States and Territories are separate jurisdictional units and have their own, albeit limited, legislative powers, under which they may introduce their own Bills of Rights (127). Moreover, State constitutions are generally easier to amend; on average the constitutions of Australian States are amended twice a year (128).

This alternative was recently considered in the ACT, which resulted in the introduction of the Human Rights Act 2004 (ACT) (129). The Consultative Committee, headed by Professor Hillary Charlesworth, argued that there was significant merit in enacting a separate ACT Human Rights Act, particularly as it was unlikely that a Bill of Rights would be introduced in the Federal sphere in the current political climate.

The Committee also noted that the Act would not directly interfere with any present Federal or State organ or activity and would effect only on ACT law. In the event that a Federal Bill of Rights was later enacted, the two statutes could exist contemporaneously, for example, as the Bills of Rights of all fifty states of the United States of America co-exist with the national constitution. Further, it was commented that because of the strong traditions of self-government in the States and Territories, Federal Government would be unlikely to overrule such a bill (130).

However, there are significant concerns regarding this option that make it an undesirable first solution. The adoption of separate Bills of Rights would be of limited value due to the fact that such individual efforts, and the limits on State and Territory legislative powers, may result in a similarly disparate, inconsistent and inadequate system of national rights protection. Further, regardless of any tradition, the Federal Government is free to amend State or Territory legislation if it proves inconsistent with Federal policy (131). Moreover, it has been suggested that the main achievement from enactment of the ACT Human Rights Act was symbolic, and did not alter the status of human rights in the ACT in any significant way.

Conclusion

In 1997 Sir Anthony Mason said:

'Australia's adoption of a bill of rights would bring Australia in from the cold...we do not have what is a vital component of other constitutional and legal systems, a component which has a significant impact on culture and thought, and is an important ingredient in the emerging world order that is reducing the effective choices open to the nation state.'(132)

During his term as Prime Minister of Australia, Gough Whitlam took his appreciation of the need for a Human Rights regime to the Australian people. He believed that 'the Constitution [was Australia's] charter of human rights' (133). While the 1974 attempt to introduce a comprehensive human rights bill failed, reform was still pursued through a series of reformist legislation, as well as through indirect means.

It was through these processes that Gough Whitlam successfully introduced a number of critical and fundamental protections, many of which remain today. Amongst his many achievements as Prime Minister, Gough Whitlam signed the ICCPR and ICESCR, and signed and ratified the International Convention on the Elimination of all Forms of Racial Discrimination. Lionel Murphy, first as Attorney General, then as a Whitlam appointee to the High Court, pursued the cause of implied constitutional rights and extended the possibilities of the powers under the Constitution, which were used, for example, to pioneer Federal legislation to outlaw racial discrimination. To this day, Gough Whitlam remains convinced that issue by issue reform is the best method to protect human rights in Australia.

Nonetheless, there is growing support for the contention that we have outgrown this approach. Some form of Bill of Rights has long been appropriate and desirable in Australia, a fact recognized by the majority of its citizens (134). While the form in which a Bill of Rights might take has not yet been widely agreed upon, there is significant support for the bill taking the form of an ordinary statute, which is later given constitutional force.

It is not suggested that a Bill of Rights would be a panacea of all the shortfalls existing the current system. Protection of human rights will best be achieved if the legislature, executive and judiciary engage with the community in a public debate regarding human rights in Australia. Indeed, a variety of solutions may be necessary to bring about such massive reform. However, as observed in other jurisdictions, the mere existence of legal recourse in the sphere of human rights has assisted in the development of a human rights consciousness in the community. (135)

It will be interesting to monitor the impact of the early steps towards such a significant outcome, for example, the effect that legislation such as the Human Rights Act 2004 (ACT) will have on Australia's political and social culture. So too developments such as the introduction of the Age Discrimination Act 2004 (Cth) and the Government's support for development of 'standards' under the Disability Discrimination Act 1992 (Cth), which are hopefully indicative of the Government's increasing levels of commitment towards social justice issues and the further development of Australia's human rights practice (136).

It was a truly huge achievement in the last century that the world's nations were able to overcome their differences and recognize certain universal rights and freedoms in the Universal Declaration of Human Rights. It is now time to contemplate a similar charter for Australia to protect human rights within its own borders. The way forward was perhaps best summarized by the rallying words of HREOC Human Rights Commissioner, Dr Sev Ozdowski:

'The challenge now for people like us...is to recognize that human rights opportunities are still there to be taken.' (137)

Notes

Former ATSIC Chair, Lowitja O'Donoghue.
W Sadurski, "Foreword" in Symposium: Constitutional Rights for Australia (1994) 16 Sydney Law Review, 145 at 146.
A formal bill of rights will create an accessible statement of community values, which was noted as significant by Hillary Charlesworth in the ACT Report on a Bill of Rights. A bill of rights would make the law regarding human rights in Australia more accessible and could be the foundation for a more socially aware and actively engaged citizenry, raising the profile of human rights on the political, legal and social radar. As noted by the International Committee of Jurists wrote in a submission to the ACT Bill of Rights Consultative Committee regarding the Human Rights Act 2004 (ACT):
'It is legitimate to ask whether the citizen knows and understands the basis for their rights and freedoms. The enactment of a Bill of Rights enables all to see clearly the basis of their community rights and obligations.'

This fragmented nature of current coverage remains a serious barrier to the development of a human rights-conscious culture.
For a detailed discussion on this issue, see D Kinley and S Joseph, Multinational Corporations And Human Rights: Questions About Their Relationship (February 2002) 27 Alternative Law Journal 7; and P Redmond, Sanctioning Corporate Responsibility, (2002) 27 1 Alternative Law Journal p23-27. Of increasing contemporary relevance is the argument in favour of a bill of rights is that this would also be a step closer to corporate responsibility for human rights abuses perpetrated against their employees or the community in which they operate. This has been considered in the past, for example under the Whitlam Human Rights Bill 1974, in a 2000 NSW Parliamentary Inquiry and under the Australian Democrats' Corporate Conduct Bill 2000, but these attempts have been largely unsuccessful. However, in light of several recent notable Australian examples of corporate human rights abuse such as James Hardie and BHP in Ok Tedi, corporate responsibility should be vigorously pursued, especially given the inexorable growth in influence these non-state actors have on the economic and social development of their place of business.
Taken from EG Whitlam, 1972 'It's time' speech. A copy of this speech is available at www.whitlam.org.au.
UN Charter, art 1, June 26, 1945
These changes were in regard to senate casual vacancies (s15), the voting rights of Territory residents (s128) and the retiring age of judges (s72).
A copy of the Constitution can be found at www.aph.gov.au/senate/general/constitution/.
R Garran, Prosper the Commonwealth (1958) Angus & Robertson, Sydney at 136.
Ibid.
These changes were not particularly significant. Amongst other things, this repeated failure has been attributed to the political nature of the section 128; the role of political leaders in being sponsors for constitutional change, as well as the apathy and lack of public involvement and education regarding any changes. For an in depth discussion of the problems associated with constitutional amendment see S Bennett, The Politics of Constitutional Amendment, Research Paper No. 11 2002- 03, 23 June 2003 at www.aph.gov.au/library/pubs/rp/2002-03/03RP11.pdf.
C Jackman, Four year terms wins Lib's vote (2002) Sunday Times, 14 April 29; R Peake Libs Seek to Cut Senate Powers, (2002) Canberra Times, 16 April 8.
There was a majority of "No" votes in all states but the ACT, who voted 63.27% in favour of a republic. WA: 58:52%; NT: 51.23%; QLD: 62.56%; SA: 56.43%; NSW 53.57%; VIC: 50.16%. Figures extracted from Australian Electoral Commission's web site http://referendum.aec.gov.au. It has been suggested that the proposal's design itself was inherently and deliberately confusing so to ensure the eventual sound defeat of the proposal. See for example the problems that arose during the republic referendum. G Williams, Constitutional Law: Where to now?, (1999) 24 Alternative Law Journal 299-3000 p299.
For a more in depth discussion of constitutional reform in Australia see B Harris, A New Constitution for Australia, (2002) Cavendish Publishing London, Sydney.
Human Rights Act 2004 (ACT).
For example see Al Kateb v Godwin [2004] HCA 37 (6 August 2004) and Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 (6 August 2004) regarding the Australian constitution and indefinite detention without trial.
Note Dr Sef Ozdowski, Human Rights: A Report Card for Australia and Tasmania, Address to the United Nations Human Rights Conference University of Tasmania, Hobart 21-23 October 2004. A copy of his 2004 Report Card to the UN on Human Rights in Australia can be found at www.hreoc.com.au/human_rights/index.
The drafters of the Australian Constitution decided against the inclusion of a bill of rights and decided that individual rights would be sufficiently protected by the common law and the doctrines of responsible government and parliamentary supremacy upon which the Constitution was founded. See Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 135 Mason CJ.
For an in depth discussion of the extent of these rights, see G Williams, The Case for An Australian Bill of Rights: Freedom in the War on Terror, (2004) UNSW Press Sydney.
This method is preferred by the legislature as it is easier to attain acceptance of the reception of such law incrementally, rather than to attempt radical change, such as the adoption of a Bill of Rights. Note that Australian Parliament began on shaky ground in respect to human rights. The first act of the new federal Parliament in 1901 was to pass the Immigration Restriction Act and the Pacific Island Labourers Act giving effect to the White Australia Policy. Even now, such measures as the current security and anti-terrorism legislation raise some eyebrows.
The Commission covers such areas a sex, racial and disability discrimination. The commission can investigate and make recommendations, but it cannot for example, take action to directly protect an individual's human rights. The body can, for example, conciliate disputes about unlawful discrimination and can intervene in court proceedings where a human rights issue is raised. However, the HREOC Act and the operation of HREOC are plagued with issues. HREOC's recommendations are routinely ignored and its leaders attacked. However well intentioned the mandate of the legislation, the success of HREOC has been due to the high caliber of its Presidents and Commissioners. The weaknesses of the current system in response to major human rights issues are demonstrated by the opposition with which HREOC's inquiry into the 'stolen generations' was received in the political sphere. Indeed the Commission's power to intervene was almost removed by legislative amendment in 1998 by making HREOC subject to approval by the Commonwealth Attorney-General, which demonstrates just how vulnerable its position is.
Other examples of important human rights statute include: the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which gives specific rights to groups of Indigenous Australians; the Administrative Appeals Tribunal Act 1975 (Cth); the Administrative Decisions (Judicial Review) Act 1977 (Cth); and the Ombudsman Act 1976 (Cth). The Privacy Act 1988(Cth) and the Human Rights (Sexual Conduct ) Act 1994 (Cth) also offer protection against specific human rights abuses. The Commonwealth, states and territories have also all passed anti-discrimination legislation including the Racial Discrimination Act 1975 (Cth); the Sex Discrimination Act 1984 (Cth); the Disability Discrimination Act 1992 (Cth); and the Age Discrimination Act 2004 (Cth).
Sir Harry Gibbs, a former Chief Justice of the High Court, has stated in regard to the Racial Discrimination Act that "we may already have what appears to be a bill of rights, limited in its true scope, which is effectively entrenched against the states". This has proved correct in the area of native title in Queensland.
A good example of this limitation can be demonstrated in regard to the anti-discrimination legislation which has little effect on systematic discrimination or to encourage substantive equality.
For example, there have been attempts to limit the scope of the Sex Discrimination Act in 2001, including changes which allow discrimination against women on their marital status and to withhold access to services such as in vitro fertilization to single and lesbian women. Also, proposed amendments to the Sex Discrimination Amendment (Teaching Profession) Bill 2004 were designed to allow the Catholic Education Office to offer scholarships specifically set aside for male student teachers. Neither of these proposed amendments were enacted, demonstrating the difficulty of passing a bill in a Senate dominated by minority parties and the opposition, although such change is not impossible.. Another example , in response to the High Court's 1996 decision in Wik, was the amendment of the Racial Discrimination Act through the implementation of the government's 'ten point plan' which sought to limit native title rights of indigenous Australians. Section 7 of the Native Title Amendment Act 1998 (Cth) provided that the Racial Discrimination Act has no operation where the intention to override native title rights is unambiguous.
This was particularly evident in the Federal election in October 2004, where voters were apparently persuaded by the Liberal focus on economic issues and less so for Labor's social justice oriented policies.
I Margh, Institutions on the Edge? Capacity for Governance, Allen & Unwin, Sydney 2000. According to recent empirical research, the role of the legislature in policy development has decreased dramatically and it is clear that the notion of robust parliamentary debate has become regulated by party allegiance and is no longer an effective mechanism to protect human rights.
See for example, the Criminal Code Amendment (Terrorist Organisations) Act 2004 and the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill (2004). For further discussion, see M Head, Behind The New Anti-Terrorism Laws at www.whitlam.org. Also delivered at 'manufacturing fear: Who's afraid in the 'War on Terror' convened at the University of Technology Sydney on 13 November 2004 by the Social Inquiry Program UTS and the Civil Rights Network. It is an expanded version of a presentation on the ABC Radio National Perspective program on 10 November 2004, entitled Behind The New Anti-Terror Laws.
However, it should be noted that there is scope for the parliament to enact a wider regime of rights protection with its power over 'external affairs' in section 51(xxix) of the Constitution, to protect the rights listed in this and other covenants. For example, the right to health, mentioned under ICESCR art 12, is not protected in federal legislation despite health's status as a topic of rigorous domestic regulation.
Many international human rights norms have not yet been enacted into domestic law. A recent example is Australia's failure to implement fully the Refugee Convention and the related provisions of the ICCPR in the domestic legal framework that both determines the legibility of asylum seekers for protection visas as well as the basis of their enforced detention as their visa applications are processed (Migration Act 1958(Cth), s91R and 474 and Part 2 Division 6). In these circumstances, it has been established that there are no legal remedies available before national courts to compel implementation. Prejudicial precedence over countervailing obligations placed on Australia by international human rights law.
A similar course has been followed in other nations. The British government, for example, incorporated the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 into law with the Human Rights Act 2001 (UK); and the New Zealand Bill of Rights Act 1990 affirms that country's commitment to the ICCPR.
For a discussion of the development of the common law in the field of human rights protection see J Doyle and B Wells, How Far Can the Common Law Go Toward the Protection of Human Rights? In P Alston (ed), Towards an Australian Bill of Rights (1994) Centre for International and Public Law and HREOC, at p107.
In Dietrich v R (1992) 177 CLR 292 in 1992, the High Court of Australia developed the common law to recognize that a person has a right to counsel when accused of a serious crime.
Ibid.
The test for lawfulness of restrictions on freedom of interstate commerce as guaranteed by the Constitution, was stated in various ways in Cunliffe v The Commonwealth (1994) 182 CLR 272.
(1995) 183 CLR 273. In Australia, certain developments in the common law have been expressed to be made consistently with international norms. In Mabo, this contributed to the abandoning of the 'terra nullius' concept.
See, for example the comments in Attorney General v Guardian Newpapers (No 2) [1990] AC 109 (Lord Donaldson MR).
For example, our courts have yet to recognize an individual's right to take legal action to protect his or her privacy despite decisions such as Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, where the High Court refused to recognize a common law right to privacy, which was decided in 1937.
There is a rule of parliamentary supremacy where a statute and the common law conflict, according to the conventional wisdom, the common law is overridden. This is a frequent occurrence. Even where the common law does recognise rights it is always subject to change by parliament. See for example R v Lemsatef [1977] 2 All ER 835, per Lawton LJ at 839. This works in the reverse, parliament may also expand a common law. See HREOC Commission website, How Are Human Rights Protected in Australian Law?, at www.hreoc.gov.au. However, note that despite parliamentary supremacy, the court can interpret legislation to minimize the infringement on rights. See for example Coco v R (1994) 179 CLR 427: "The courts should not impute to the legislation an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language". Therefore, "a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right".
See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; ACT v Commonwealth (1992), Theophanous v Herald Weekly Times Ltd (1994) 182 CLR 104. The common law is also one of the few areas which provides remedies in relation to human rights, for example, for defamation and property rights.
Article 38, Statute of International Court of Justice. Columbia v Peru (Asylum Case) ICJ Reports 1950, p266; UK v Norway (Anglo Norwegian Fisheries Case) ICJ Reports 1951 p116; France v Turkey (SS Lotus Case) PCIJ Reports, Series A No 10.
Note that in addition to these agreements with treaty status, other international activity includes less formal arrangements between Australia and other countries with only 'political or moral weight', including some bilateral aid programs.
10 February 1948, entered into by Australia on that day.
Peter Bailey, Human Rights - Australia in an International Context, (1990) Butterworths Sydney 1.
4 January 1976, entered into by Australia on 10 March 1976.
ICESCR art 2.
23 March 1976, entered into by Australia on 13 November 1980. Australia has also ratified (in September 1991) the First Optional Protocol to the ICCPR which makes it possible for complaints to be made to the UN Human Rights Committee.
ICCPR art 2.
Australia has entered into or support such specific human rights instruments as the Convention Relating to the Status of Refugees, 22 April 1954, entered into by Australia on 22 January 1954. The Migration Act 1958 (Cth) adopts the Convention definition of refugee in s5; Protocol Relating to the Status of Refugees 4 October 1967, entered until by Australia on 13 December 1973; Declaration on the Rights of the Child, 20 November 1959, supported by Australia on that day; Convention on the Rights of the Child, 2 September 1990, entered into by Australia on 16 January 1991; Discrimination (Employment and Occupation)(ILO Convention 111), 15 June 1969, entered into by Australia on 15 June 1964; International Convention on the Elimination of all Forms of Racial Discrimination, 4 January 1969, entered into by Australia on 30 October 1975; Declaration on the Rights of the Mentally Retarded Persons, 9 December 1975, voted for by Australia on that day; Declaration on the Rights of Disabled Persons, 9 December 1975, voted for by Australia on that day; Convention on the Elimination of All Forms of Discrimination Against Women, 3 September 1981, entered into by Australia on 28 August 1983. Note that the current Federal Government has refused to ratify the Optional Protocol to the Convention; Declaration on the Elimination of All Forms of Religious Intolerance, 25 November 1981, supported by Australia on that day; and Convention Against Torture and other Cruel Inhumane and Degrading Treatment or Punishment, 26 June 1987, entered into by Australia on 7 September 1989.
The right to: life, Art 3, UDHR, art 6 ICCPR; liberty and security of person, art 3 UDHR, art 6 ICCPR; equality before the law and without discrimination to equal protection of the law, art 7 UDHR, arts 14(1) and 26 ICCPR; be free from arbitrary arrest or exile, or detention, art 9 UNHR, art 9(1) ICCPR; the economic, social and cultural rights indispensable for...dignity, art 22 UDHR, arts 9 and 15 ICESCR; work, to free choice of employment, to just and favourable conditions, of work and to protection against unemployment, art 23 UDHR, art 7 ICESCR; and to education, art 26 UDHR, arts 13 arts 14 ICESCR.
Jus cogens are principles which a number of jurists have identified as certain basic principles of international law from which states cannot derogate. They are accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character.
Department of Foreign Affairs and Trade, Human Rights Manual, (1993) 31 at www.dfat.gov.au.
The right to make an individual communication or complain at the international level can only be exercised when all domestic legal avenues for redress have been exhausted. This requirement ensures that the international system cannot be used in a frivolous way. It can only be invoked offers not adequate remedy for a violation of internationally recognized rights. In 1991 and 1993, Australia accepted the right of individuals in Australia to complain directly to three of the UN treaty-monitoring bodies (the Human Rights Committee under the ICCPR, the Committee on the Elimination of Racial Discrimination, and the Committee against Torture under the Convention Against Torture) about violations of treaty obligations.
This occurred in the Toonen v Australia (Toonen's case) (Communication No 488/1992). Nicholas Toonen, an activist for homosexual rights in Tasmania, took up the opportunity and complained to the committee that his rights were infringed by the Tasmanian Criminal Code Act 1924 , of which Chapter XIV regarding 'Crimes Against Morality' made sexual activity between consenting adults males a crime by establishing the offence of having 'carnal knowledge of any person against the order of nature'. The UN committee upheld Toonen's claim that the law was inconsistent with the right of privacy set out in Article 17 of the International Covenant on Civil and Political Rights. The finding did not form part of Australian law, so there were no resulting legal consequences. However, the federal parliament responded by passing the Keating government's Human Rights (Sexual Conduct) Act 1994 to override the Tasmanian legislation by the operation of Section 109 of the Constitution. The High Court did run a test case regarding the law, however, the relevant provisions in the Tasmanian legislation was then repealed by Tasmanian parliament, and the case was dropped.
D Kinley and P Martin, The Institutional Mediation Of Human Rights In Australia, in P Boreham, G Stokes, R Hall (eds), The Politics of Australian Society, (2004) 2nd ed, Pearson Longman Australia.
The provisions of international treaties, including the ICCPR and the ICCSR, and resolutions or declarations of international bodies, which have not been formally enacted in statute, are scheduled to the Human Rights and Equal Opportunity Commission Act 1986(Cth). Inclusion in the schedules, and influence on policy decisions, does not, however, confer legislative force or legal rights. Penelope Mathews, International Law And The Protection Of Human Rights In Australia: Recent Trends, (1995) 17 Sydney Law Review 178, 183.
It is important to understand the Commonwealth Constitution and the common law system that underpins it subscribes to the so-called transformation theory of international law. This means that international law has no force in Australian law until it is transformed into domestic law by the enactment of legislation. As such, the government could elect largely to disregard a human rights instrument, not matter that this would be in violation of international law.
To have legal effect upon the rights and duties of Australian citizens the provisions of a treaties have to be enacted as part of our domestic law, either by Commonwealth or state legislation. In the absence of legislative or constitutional provision, the High Court has determined that treaties entered into by Australia have no direct effect, such as the creation of legal obligations, in municipal law unless given effect by an act of parliament. See for example: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183, CLR 273, Coe v Commonwealth (1993) 118 ALR 193, Kruger v Commonwealth (1997) 146 ALR 126, Bertran v Vanstone (2000) 173 ALR 63.
The High Court has determined that in the absence of a statutory or executive indication to the contrary, an affected party may argue that a treaty may give rise to a 'legitimate expectation' on the part of the person affected by a decision that the decision will conform to the terms of the treaty or convention. The decision was made in an administrative law context. Minister for Immigration and Multicultural Affairs v Teoh (1995) 183 CLR 273. Similar reasoning has been used in New Zealand: Tavita v Minister for Immigration [1994] 2 NZLR 257; and in the UK: R v Secretary of State for the Home Department; ex parte Briand [1991] 1 AC 696. This issue is not settled, both the executive and parliament has condemned the decision, and the High Court has stated that the authority in Teoh may require revision, see Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6, regardless Teoh is a significant judicial step.
Presently, there are two principles of statutory construction that have been construed by the High Court to invite reference to international legal principles. The first is the principle of statutory construction that in the case of ambiguity, courts should favour a construction that is in accordance with Australia's international obligations. Polites v Commonwealth (1945) 70 CLR 60. However this issue is yet to be settled, see for example Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 which appears to be moving toward a narrower formulation of the principle, and the comments of Callinan J in Western Australia v Ward (2002) 192 ALR 433 at 273. regarding the type and source of international law to be considered under this principle. The second is the presumption against legislative intention to abrogate or curtail fundamental rights and freedoms, unless such an intention is clearly manifested in unmistakable and unambiguous language, see Potter v Minahan (1908) 7 CLR 277.
The High Court has also determined that customary international law and treaties reflecting customary international law are a source for the development of the common law. This principle achieved general acceptance in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42., where Brennan J stated; " International law is a legitimate and important influence on the development of the common law, especially when the international law declared the existence of universal human rights." Note that despite the general acceptance of international law in Australia, there is a problem regarding the reception of international customary law (CIL) in Australian law. In cases including: Dietrich v R (1992) 177 CLR 292; Teoh; and Nulyarimma v Thompson (1999) 96 FCR 153, the court has been uncharacteristically inconsistent in its use of CIL and the issue is in need of resolution by the High Court for it to thus remain in a 'serviceable condition', per Brennan J in Dietrich v R at 402.
The extent to which the High Court may refer to international law in the interpretation of the Australian Constitution is still a contentious issue. Kirby J made general reference to the use of international principles through the use of an 'interpretive principle', in Newcrest Mining Ltd v Commonwealth (1997) 190 CLR 513 at 657-658. However this approach has been challenged on the bench, a recent rejection of the principle is by Callinan J in Western Australia v Ward (2002) 193 ALR 433 at 275 on the grounds that the application of international law in this way would lead to a loss of Australia's sovereignty. However, the use of international law has significant advantages, and the High Court has generally been willing to reinterpret the Constitution to meet its own perceptions of the needs of Australian society and to apply the text of the instrument to new ideas. See for example: Grain Pool of WA v Commonwealth (2000) 74 ALJR 648.
Moreover, this activity has made the public, media and government nervous. The anxiety about international law has generated inflated and simplistic understandings about the international legal system. Judges who have recognised the relevance of applying international law to out legal system have been characterised in the popular media as '[like] some rich kid discovering the Church of Scientology'. Janet Albrechtson, Justices Leave the Door Wide Open to Killers, The Australian (4 December 2002): www.theaustralian.news.com.au. Clearly, not every one is convinced of the benefits of this trend. There are five main areas of concern: the concern that the rising profile of international law is causing a democratic deficit' in our system of government; that the use of international law is contributing to a gradual erosion of states' rights, upsetting the federal balance; that the use of international law in domestic will cause a loss of sovereignty; that international law is being used as a tool for improper judicial activism; and other practical concerns, arising from the onerous number and nature of international obligations undertaken. These fears are largely unsustainable.
A Mullins and C Saunders (eds), Economic Union in Federal Systems (1994) at 35.
Section 41 provides the right to vote in federal elections is granted to "any adult person who has or acquires a right to vote at elections for the more numerous House of Parliament of a State", where a state law already allows a person to vote.
Section 80 provides that "trial on indictment of any offence against any law of the Commonwealth shall be by jury".
Section 116 provides the right to freedom of religion. There are four ways in which the Constitution provides protection: the federal parliament cannot "make any law for the establishing of any religion"; impose "any religious observance"; prohibit "the free exercise of any religion" and "no religious text shall be required as a qualification for any office or public trust under the Commonwealth".
Section 117 prohibits governments from imposing "any disability or discrimination" on the basis of an individual's place of residence. For example, the section may prevent the NSW parliament excluding the residents of any other state from its universities.
Section 75(v) provides that "in all matters...in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth...the High Court shall have original jurisdiction."
Section 92 provides that 'trade, commerce and intercourse among state...shall be absolutely free."
Section 51(xxxi) provides the Commonwealth may only acquire "property" on "just terms". Interests protected under this section include native title rights, intellectual property rights, the rights to bring an action against another person.
For example ss92 and 51(xxxi). See the Bank of New South Wales v Commonwealth (Bank Nationalisation Case) (1948) (1948) 76 CLR 1 in regard to s92. The High Court struck down the Chifley government's attempt to nationalize banking on the ground that the progressive prohibition of carrying on of banking business by private banks was inconsistent with the 'freedom' to conduct interstate trade under section 92.
It has been suggested that the silence is a surprise from a historical perspective, as the US Constitution, on which Australia's constitution was modeled contains a formal bill of rights. It has been suggested that this was because, unlike in the US, at Federation Australia was peaceful, it little need was perceived for a formal entrenchment of individual rights. See RCL Moffatt, Philosophical Foundations of the Australian Constitutional Tradition, 5 Syd Law Review (1965) 59 at 85-88. Another suggestion is that the inclusion of a bill of rights would have conflicted with racist laws existing at the time, such as the Western Australian prohibition on Africans or Asians being employed as miners, which was continued through such government action as the "White Australia" policy.
For example, section 41 only guarantees the right to vote where a person 'has or acquires a right to vote at the elections for the more numerous House of the Parliament of a State'. See for example R v Pearson; Ex parte Sipka (1983) 152 CLR 254 where it was held that section 41 only applies in certain circumstances. Another example is section 80, which has been severely limited by the High Court since its inception and now only provides for a jury trial where, confusingly, the trial [is] on indictment. The significance of this is that there is currently no real individual entitlement to a jury trial, even where a person is charged with a crime punishable by a lifetime in prison. See also, R v Archdall and Roskruge (1928) 41 CLR 128.
See for example section 75(v) which states that "in all matters...in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth...the High Court shall have original jurisdiction." The language is arcane, but the effect is clear. It means that a person has the right to seek High Court review of government decisions in regard to the listed remedies.
In R v Bernasconi (1915) 19 CLR 629, it was stated that the limited right to trial by jury provided by s80 of the constitution is not available to residents of the territories. Other examples include s117 which only protects a 'resident in any State' where he or she is subject 'in any other State to any disability or discrimination.' Section 92 only protects 'trade commerce and intercourse among states' and residents of territories do not get their votes counted in a separate state count, like the States, which was expanded in 1989 in Street v Queensland Bar Association (1989) 168 CLR 461. The High Court relied on the section to invalidate a rule of Queensland Supreme Court that restricted the right to practice of barristers resident in other Australian states. Members of the court adopted a broad construction of the section on the basis that is was designed to protect individual liberty.
See for example, Kruger v Commonwealth (1997) 190 CLR 1. In this case an ordinance of the Northern Territory authorized the removal of Aboriginal children from their families. The High Court doubted whether the guarantee of section 116 of the Constitution inhibited the Commonwealth's power to legislate with respect to the territories.
For example, despite the Court developing a fixed and protective view of what it means to have a 'jury trial' (see eg Cheatle v R (1993) 177 CLR 541) section 80 remains a 'mere procedural provision', Spratt v Hermes (1965) 114 CLR 244 (Barwick J). Similarly the protection of the 'free exercise of any religion' in s116 remains bound by an interpretation that owes more to form than substance. In Kruger v Commonwealth (Stolen Generations Case)(1997) 190 CLR 1, members of the High Court adopted the test developed earlier in Attorney-General (Vic) Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559, that is: 'To attract invalidity under s116, a law must have the purpose of achieving an object which s116 forbids". Stolen Generations Case (1997) 190 CLR 1, 40 per Brennan CJ. There has yet to be a case in the High Court in which s116 has been applied Such decisions as Street v Queensland Bar Association, (1989) 168 CLR 461 which attempted to reinterpret s117, and the strong language used by the High Court to develop an interpretation strongly protective of human rights, suggested that the Court might adopt a wider construction of other civil and political rights. This has not proved to be the case. See for example Krygger v Williams (1912) 115 CLR 366 in regard to conscientious objections to military training on the basis of religion. It should be noted that few laws have been passed in Australia, as opposed to France for example, which might infringe this section.
(1920) 28 CLR 129.
The first case in which an implication protective of human rights was derived from the Constitution was in 1912 in R v Smithers; Ex parte Benson (1912) 16 CLR 99 In that case, Griffith CJ and Barton J found an implied freedom of movement between states and of access to government and to the seat of government. Significant recognition of implied constitutional rights began with the appointment of Lionel Murphy the High Court by the Whitlam government after its failed Human Rights Bill in a series of decisions, which held that the Constitution contains what almost amounted to an implied Bill of Rights. See for example, R v Director-General of Social Welfare (Vic); Ex parte Henry (1975) 133 CLR 369. In other cases, freedoms of movement and communication, a right to be heard before being subject to an adverse order, and a freedom from 'cruel and unusual punishment'were found to be implied, see Sillery v R (1981) CLR 353, 362. Murphy J's approach has not been overtly popular amoungst the judiciary, see for example the comments in Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556, 581-2 per Murphy J.
Australian Capital Television Pty Ltd v Commonwealth (195) 177 CLR 106. Lange v Australian Broadcasting Commission (1997) 189 CLR 520. In recent decisions, the Court has been careful to ensure that this guarantee is carefully tied to and limited by the text of the Constitution, rather than being a free-standing right.
Leeth v Commonwealth (1992) 174 CLR 455.
Kruger v The Commonwealth (Stolen Generations Case) (1997) 190 CLR 1, 91 per Toohey J, 115 per Gaudron J, 142 per McHugh J.
For example, see the decision of Justice McHugh in McGinty v Western Australia (1996) 186 CLR 140 regarding the implied freedom of political communication. McHugh J described the reasoning in Australian Capital Television Pty Ltd v Commonwealth (195) 177 CLR 106 as 'fundamentally wrong and as an alteration of the Constitution without authority of the people'. He stated that the boundaries of what must be 'necessarily implied' were perceived as set by the text of the Constitution, at 204.
For example, in 1992, the High Court acknowledged that the Constitution requires some degree of freedom from political communication. See Australian Capital Television Pty Ltd v Commonwealth (195) 177 CLR 106.
See the competing views of Gleeson CJ and Kirby J. Chief Justice Gleeson has cautioned against judicial adventurousness with implied rights, arguing that 'we are bound by [the framers of the constitution] choice not to say certain things, if they remained silent on a matter, and legitimate techniques of interpretation cannot fill that gap they have left, and we are bound by their silence'. M Gleeson, The Rule of Law and the Constitution, ABC Books Sydney p16.
Cheng v Queen (2000) 175 ALR 338. This approach is yet to gain majority support.
(War Crimes Case) (1991) 172 CLR 501.
A majority held that the Commonwealth could not enact a Bill of Attainder, a law by which a parliament, rather than a court, judges a person to be guilty of a crime. Deane J and Gaudron J also found that the Commonwealth parliament could not establish criminal offences that operate retrospectively. This did not attract the support the bench. The significance of this may have implications for the operation of the recent anti-terrorist legislation.
For example, the interpretive principle that such rights should be interpreted so far as is possible in a manner protective of human rights. This approach has been adopted by individual members of the High Court, but has not yet received wide support . Justice Kirby stated in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 at 657: "Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of fundamental rights rather than an interpretation which would involve departure from such rights." See also Murphy J in R v Pearson; Ex parte Sipka (1983) 152 CLR 254, 268, 274 and Gaudron J in Stolen Generations Case (1997) 190 CLR 1 at 123, 131.
The Human Rights Act 2004 (ACT), which commenced 1 July 2004.
Premier Carr argued that a Bill of rights would undermine the sovereignty of parliament, and that the "protection of rights lies in the good sense, tolerance and fairness of the community".
A copy of the report is available at www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/3dabe. This was reflected in the conclusion to its October 2001 report: "[Some] of the arguments put forward by advocates of a Bill of Rights have merit. During this inquiry, there have been examples given where human rights of individuals or of minority groups have been neglected. Some of the examples occurred in other jurisdictions, but there have also been failures by NSW governments to address individual and at times systematic problems. The Committee agrees that the common law is not a sufficient protection of individual rights in the absence of legislative action."
This committee was actually formed in 2003 and, in line with similar committees in other Australian parliaments, it advises parliament on the implications of proposed new laws. Submissions are not taken from the public but a panel of legal experts. On the topic of human rights, in the absence of a bill of rights, the principles against which the committee should assess new laws are unclear. It is required to report on whether a proposed law "trespasses unduly on personal rights and liberties," but has been given no definition of those rights and liberties. In any event, reports of the committee are not binding upon government or parliament.
Under the proposal, the guarantees would only have operated for a period of five years. The referendum was lost on the national vote with a 45.39% "yes" vote.53.30% "no" vote. It received a majority "yes" vote in only two states. See www.aec.gov.au for a full copy of results from the referendum.
With the support of 89.34% of the voters, the referendum was carried overwhelmingly in every state. This did not amount to the granting of "equal rights" to Indigenous peoples. For example, it was not until 1983 when the Commonwealth Electoral Amendment Act 1983 made enrolment for and voting in Commonwealth elections compulsory for Aboriginal Australians. Moreover, equalities still exist. As discussed inn the Hindmarsh Island Case, the races power exists in the Constitution without any indication that the power can be applied only for their benefit.
The Bill met strong opposition, and lapsed in early 1974. It was introduced by Senator Lionel Murphy. Interestingly, the bill declared that the listed rights could be enforced not only against governments but also against the private sector. It was at this time that the Racial Discrimination Act 1975 was introduced.
Senator Gareth Evans, Attorney-General in the Hawke government sought to take up where Murphy had left off. The Bill had cabinet support but was not introduced into parliament. It was passed by the House of Representatives, but withdrawn on 28 November 1986. It has been suggested by EG Whitlam that the bill was withdrawn because of a deal between PM Hawke and Western Australian Labor premier, Brian Burke, regarding potential electoral implications for the Burke government, s EG Whitlam, Human Rights Around the Pacific - And Mabo, Chinese Studies Association of Australia Conference at Griffith University 5-8 July 1993, Opening Speech by Gough Whitlam.
The commission recommended a new chapter be inserted into the constitution containing a range of fundamental rights drawn heavily from the Canadian Charter of Rights and Freedoms 1982.Oit proposed remedies for breaches of human rights and rejected the idea of allowing the Commonwealth or states to pass legislation in contradiction with those rights. The government designed a proposal for referendum which included the extension of the operation of existing guarantees in the Constitution and the right to vote. These proposal were defeated nationally and in every state - for example, only 30.33% of voters said "yes" to the extension of existing constitutional rights. This result was affected by strong opposition, lack of community understanding and lack of bipartisan support.
The 1998 Convention did not focus on human rights, but the republic. However, there was some effort to include concepts of human rights in earlier drafts of the proposed preamble, which were later edited out. In any event, the proposals were soundly rejected by the Australian people.
Other examples include the Human Rights Bill 1982 introduced by Democrats Senator Janine Haines, the Australian Bill of Rights Bill in 2000 and the Parliamentary Charter of Rights and Freedoms Bill in 2001 by then Australian Democrats Senator Meg Lees; as well as the Australian Bill of Rights Bill by Andrew Theophanous. These bills have lacked government support and/or the backing of a major party, and were not enacted and have generally not been give time for much debate.
This relates to parliamentary sovereignty inherited from the UK and the tradition of responsible government. There is little doubt that a Bill of Rights has the capacity to shift power from parliament to the judiciary, from elected representatives to unelected judges. Many past and contemporary politicians subscribe to the theory that to introduce a bill of rights would be not only unjustified, but undemocratic. Premier Bob Carr stated "A bill of rights is an admission of the failure of parliament, governments and people to behave in a reasonable, responsible and respectful manner - I do not believe we have failed." In the Australian, 9 January, 2001, p17. On the subject, the Commonwealth Attorney General reflected on how the Parliament make decisions about competing rights and freedoms are balanced. This refers to the utilitarianism ideology in Australia public life.
Attempts to introduce some form of charter of rights into the Australian Constitution have failed due to concerns that guarantees of rights into the Constitution would limit and impinge upon the sovereignty of the States since the 1970s. It remains a potent argument with both major political parties, who apparently accept that States and Territories should be free to enact legislation that breaches international human rights standards.
For a good summary of bills of rights in foreign jurisdictions see G Griffith, The Protection of Human Rights: A Review of Selected Jurisdictions, Briefing Paper 3/2000 at www.parlliament.nsw.gov.au/prod/parlment/publications.nsf/o/64C47BC4A6FC. See also, H Charlesworth, Human Rights in Australian Law, Public Law Review, (2002) 13 September 155 at 156-9.
See J Elkind, New Zealand's Experience with an Non Entrenched Bill of Rights, in P Alston (ed), Towards An Australian Bill of Rights, (1994) Centre for International and Public Law and HREOC p 235.
Note that the NZ equality rights or 'freedom from discrimination' provision (section 19), does not refer to 'equal protection of the law' or 'equality before and under the law'. It was suggested that to include such measures would invite undesirable judicial activism in areas of substantive policy. This is not the case in the US Constitution and the Canadian Charter of Fundamental Rights and Freedoms.
Part III, Miscellaneous provisions, the Bill of Rights Act 1990.
Similar provision exists in the to the UK Human Rights Act, and the New Zealand model which can not invalidate secondary legislation. This is in contrast to the Canadian model, under which inconsistent legislation can be declared invalid. Really, this is a question of balance between judiciary power and parliamentary sovereignty.
See Curran v Police (1991) 7 CLRNZ 323; NZ Underwater Association Incorporated v Auckland Regional Council (No A131/91, 16 August 1971). Note that there has been a conflicting interpretation in Ministry of Transport v Noort [1992] 3 NZLR 260 (NZCA).
M Taggart Tugging on Superman's Cape: Lessons from Experience with the New Zealand Bill of Rights Act 1990 (Summer 1998) Public Law 266 at 274.
PA Joseph, New Zealand's Bill of Rights Experience, (1996) Public Law Review 7 162, at 168. Taggart (above) has written in this regard of the sheer volume of case law involving the Bill of Rights and the Court of Appeal's insistence that its terms are to be 'interpreted and applied generously and purposefully, rather than narrowly and technically'. He went on to say that 'in a series of landmark cases, the Court of Appeal 'constitutionalised" rights relating to search, arrest and detention. M Taggart at 274. Indeed in 1996, Joseph concluded that 'with the benefit of creative lawyering the Act has acquired a 'constitutional' standing as a politically, if not legally, entrenched document.'' PA Joseph, at 173.
M Taggart ibid at 274.
Individual Province human rights codes or charters exist alongside, and sometimes pre-date the Canadian statutory bill of rights 1960 and the Canadian Charter. Other examples include the US, Canada and Germany. In the US, equivalent protection at a sub-national level was one of the reasons why a bill of rights was not included in the US constitution originally. In fact, the first draft of the bill of rights was based on George Mason's 'Declaration of Rights' for Virginia's Constitution of 1776, a sixteen provision document that remains part of Virginia's present Constitution. See G Griffith, ibid, at p5.
Section 33(3) provides that a declaration or provision in an Act operates notwithstanding that a relevant provision of the Charter may cease to have effect 5 years after it comes into force.
For example, the broad interpretation of the right to equality in s15 of the Charter has sparked debate in regard to discrimination against groups subject to stereotyping, historical disadvantage and social prejudice.
Although similar problems have been complained of in regard to ordinary legislation. For example workers will not be protected from unemployment, the threats to strike and bargain collectively or the increasing mobility of global corporations.. See J Bakan, Just Words: Constitutional Rights and Social Wrongs (1997) University of Toronto Press, Toronto Ch 5.
Corporations have manipulated new regulation for their own ends, resulting in an effect unintended by the legislature at the time of drafting.. For example, in R v Big M Drug Mart Ltd [1985] 1 SCR 295, R v Zundel [1992] 2 SCR 731.
Section 1 of the Act provides that Articles 2 to 12 of the ECHR, along with Articles 1 to 3 of the First Protocol and Articles 1 and 2 of the Sixth Protocol are to 'have effect for the purposes of this Act subject to any designated derogation or reservation...'. Omitted are Articles 1 and 13 of the Convention. The omission of Article 13, which provides for 'an effective remedy' before a 'national authority' was held to have significant ramifications. The government claimed that remedies were already provided for under the act, making art 13 unnecessary.
This includes private bodies who are exercising public function.
For a discussion of this see K Ewing, The Human Rights Act and Parliamentary Democracy, (January 1999) 62 (1) The Modern Law Review, 79 at 89.
The National Coalition for Gay and Lesbian Equality v Minister for Home Affairs 3 BCLR 280 (1999).
6 BCLR 665 (1995).
Government of the Republic of South Africa v Grootboom (Case 11/00). In Government of the Republic of South Africa v Grootboom (Case 11/00), a group of squatters (500 children and 400 adults) on land in the Western cape brought a case under the Constitution challenging their eviction. They argued that the South African government was required to provide them with adequate basic shelter or housing under the Bill of Rights. The Constitutional Court unanimously decided that the Bill of Rights required the state to devise and implement a program to progressively realise the right of access to reasonable housing. Given the crisis situation with so many people living in the intolerable conditions, the court held that the programs in place were clearly inadequate.
Ibid.
Australian Law Reform Commission, Equality Before the Law, Report No 69 (1994) A copy can be found at www.alrc.gov.au.
It is often argued in Australia that the interpretation of a Bill of Rights is an inappropriate task to assign to an unelected body of judges; that it is not only undemocratic because there is no accountability, but that also making decisions on great moral, social or economic issues is often beyond the expertise of judges with their narrow legal training and backgrounds.
The United Kingdom model is a straightforward adoption of international standards. It is confined to asset of civil and political rights. The Canadian and South African models are a mix of some rights drawn from the United Nations Human Rights treaties and some rights that respond to the particular national context.
But note that under s122 of the Australian Constitution, the Commonwealth government has the power to override any state or territory laws. See for example, when the Commonwealth overturned the Northern Territory's euthanasia law in 1997.
For example, the Victorian Constitution has been amended 79 times between 1975 and 2002. The South Australian Constitution has had 66 Acts amending it since 1934. Such comparatively numerous reform activity is no doubt reflective of the fact many of the changes have been minor and have bipartisan support. J Williams, Constitutional reform: Significant issues to be considered, Law Society Bulletin, August 2003, p 25.
A copy of the report can be found at www.jcs.act.gov.au/prd/rights/ documents/report/BORreport.pdf.
The Prime Minister has defended the right of the Northern Territory to breach international human rights standards in the case of mandatory sentencing laws on the basis that it was up to the Territory to decide such matters for itself. See The Canberra Times, 19 February, 200, p1.
Euthanasia Laws Act 1997 (Cth).
Sir Anthony Mason, Rights, Values and Legal Institutions: Reshaping Australian Institutions, (1997) Volume 13 Australian International Law Journal pages.
EG Whitlam, In His Own Words, SBS Television Documentary, quoted in G Williams, The Whitlam Government and Constitutional Reform, delivered at Thirty Years Later: The Whitlam Government as Modernist Politics, Old Parliament House, Canberra, 3 December 2002. A copy of the paper can be found at www.whitlam.org.au.
B Galligan and I McAllister, Citizen And Elite Attitudes Towards An Australian Bill Of Rights, in B Galligan and C Sampford (eds), Rethinking Human Rights, Federation Press, 1997 p149. in 1993, 54 per cent of Australians did not think human rights were well protected under the existing system, 72 per cent agreed with the introduction of a Bill of Rights and 61 per cent were in favour of any final decisions in relation to human rights matters being the responsibility of the Court rather than Parliament.
NSW Parliament Standing Committee on Law and Justice, Report on a NSW Bill of Rights (2001) para 5.15.
Encouragingly, Senator Brian Harradine has commented that the increased political potency arising from the Government's increased lower house representation and control of the Senate "offers a great opportunity to tackle the difficult issue of social exclusion" Brian Harradine, People Are Only Disabled By Our Response To Them, October 25, 2004 posted at www.onlineopinion.com.au.
S Ozdowski OAM, Human Rights: A Report Card For Australia And Tasmania, Address to the United Nations Human Rights Conference University of Tasmania Hobart 21-23 October 2004.

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