Constitutional Bill of Rights

A Constitutional Bill of Rights could be utilised to include an explicit recognition of the indigenous peoples by not only including it in the Constitution, but including surrounding human rights to acknowledge that recognition.

A Constitutional Bill of Rights is one that is entrenched into the Constitution. This means that it can only be removed or abrogated under rare and high threshold circumstances. Every other becomes subservient to it as it is part of the Constitution.[1] This model of human rights inclusion allows judges to invalidate laws that are incompatible with the rights listed. [2]

Bill of Rights in Australia

Australia is the only developed country to not possess a judicially enforceable Bill of Rights. [3] Two jurisdictions within Australia however do have charters of rights, Victoria (Victorian Charter of Human Rights and Responsibilities Act 2006) and the Australian Capital Territory (Human Rights Act 2004). [4] They do not grant stand-alone rights, but are utilised by courts to interpret statutes in awareness of human rights. [5]

Referendums

Australian citizens have emphatically said ‘No’ at each referendum held on including a bill of rights. This indicates that there is either a satisfaction with the system, or that there is consistent objection to the constitutional inclusion of human rights. In 1944 Australians were asked in the s 128 amendment referenda whether they wanted a constitutional Bill of Rights. The answer was a resounding ‘No.’ [6]

In the 1988 referendum four proposals were put to the public, all of which were defeated nationally and in every State. The fourth proposal, which would have embodied the biggest human rights guarantees, received the lowest national ‘Yes’ vote of any referendum ever, receiving only 30.33 percent. [7]

This repetition of referendum failure indicates that it would seem very difficult to include a Bill of Rights into the Constitution as the Australian public seems reluctant to vote for one.

National Human Rights Consultation Commission

In 2009, the Labor federal government opened the National Human Rights Consultation Commission, to see if there was support for a Bill of Rights. There did not end up being a proposal for a Bill of Rights. This could have been due to strong opposition from other major political parties. The Liberal Party for example has strongly opposed any Bill of Rights in 1944, 1973, 1986, 1988 and 2009. [8] Accordingly, it could be extrapolated that were this issue to arise again, the Liberal Party and affiliated parties would also oppose this Bill.  

Defining the recognition and the rights

In order to include a Bill of Rights in the Constitution, the recognition and the rights to be adopted must be defined and settled upon. As rights are essentially moral standards, they are inherently indeterminate and amorphous, and can rarely be agreed upon by individuals. [9]  Defining rights limits them, as you have chosen which rights are more important than others to enshrine. [10] Additionally, once these rights are applied to specific scenarios, it becomes apparent that their application, scope, range and relative ranking are still highly controversial. [11] This is a significant issue in both implementation and creating a Bill of Rights.

Amendment

Entrenching rights into the Constitution makes them extremely hard to amend or remove. [12] While on the one hand this is extremely positive as it entrenches recognition of indigenous peoples, there are issues if there are problems with it.  

The difficulty with entrenching recognition within a Bill of Rights is that any Bill written today could be outdated quite quickly. [13] It would be nearly impossible to secure amendments for it to remain a ‘living document’ and respond to changing issues. [14] In order to try and attempt to keep up with changing times, parliament could legislate in regards to new rights through specific legislation, but this would still be placed underneath constitutionally protected rights in the hierarchy of statutes. [15]

             Enshrinement of rights which may no longer be appropriate

The other issue with entrenchment is that certain rights might become inappropriate to the changing times, but still be applicable. [16] As Phillip Ruddock enunciated, ‘Bills of Rights are inevitably rooted in time.’ [17] What might be considered the most appropriate way of wording recognition, and the rights designed to protect that, may not be appropriate in the future.  

Shift of power from legislature and executive to the judiciary

The effect of adopting a Bill of Rights is also institutional, moving primary responsibility for rights claims from legislatures to the courts.[18] It could be argued that this is a positive shift as the courts are forced to make decisions at the time of asking, rather than leaving it to the legislature to decide when the pressure to change things is overwhelming the convenience of leaving things as they are. [19] However, the overwhelming point is that parliament and its legislation become subservient to judicial interpretation on indeterminate, moral ideas. [20]

Additionally, judges appointed by the government of the day, which has two interconnected problems; firstly that they are unaccountable to the people they preside over, and they can be appointed due to certain views which align with the governments. The concomitant problem, other than judges are unelected, is that they are generally conservative, middle-aged men.[21] As judges are required to be guided by their own morality as well as that of the populous in interpreting the words of the Bill of Rights, this means that a Bill of Rights could help entrench judges own personal values into the universal law of Australia.[22] Further, while judges might seek to give voice to the ‘will of the people,’ there is no real way for them to know what this is. This is easier discovered by the parliament, because if the majority believe the decision is unacceptable, the community will express this at regular elections. [23]

 

References  

[1] Australian Law Dictionary, “Entrenched (rights, legislation)” oxfordreference.com http://www.oxfordreference.com.ezproxy.uow.edu.au/view/10.1093/acref/9780195557558.001.0001/acref-9780195557558-e-1212 (2010) accessed 3 October 2014.

[2] Deb Anderson, “Does Australia need a bill of rights?”, The Age, 21 September 2010, 1.

[3] Galligan and Morton, “Australian Exceptionalism: Rights Protection Without a Bill of Rights”, 37.

[4] Australian Law Dictionary, “Charter of rights” oxfordreference.com http://www.oxfordreference.com.ezproxy.uow.edu.au/view/10.1093/acref/9780195557558.001.0001/acref-9780195557558-e-0574 (2010) accessed 3 October 2014.

[5] Mirko Bagaric, “Separation of Powers Doctrine in Australia: De Facto Human Rights Charter”, International Journal of Punishment and Sentencing 7:1 (2011) 25.

[6] James Allan, “You Don’t Always Get What you Pay For: No Bill of Rights for Australia”, New Zealand Universities Law Review 24:1 (December 2010) 180.

[7] George Williams, A Bill of Rights for Australia, 32.

[8] Julian Leeser, “Responding to Some Arguments in Favour of the Bill of Rights”, in Don’t Leave Us with the Bill: The Case Against an Australian Bill of Rights, eds. Julian Leeser and Ryan Haddrick (Barton: The Menzies Research Centre Limited, 2009) 53.

[9] Allan and Cullen, “A Bill of Rights Odyssey for Australia: The Sirens are Calling Australia”, 174.

[10] Michael Kirby, “A Bill of Rights for Australia – But do we need it?”, Commonwealth Law Bulletin 21:1 (January 1995) 278.

[11] Allan and Cullen, “A Bill of Rights Odyssey for Australia: The Sirens are Calling Australia”, 178.

[12] Allan and Cullen, “A Bill of Rights Odyssey for Australia: The Sirens are Calling Australia”, 178. 

[13] Kirby, “A Bill of Rights for Australia – But do we need it?”,  278 – 279.

[14] Paul de Jersey, “A Reflection on a Bill of Rights”, in Don’t Leave Us with the Bill: The Case Against an Australian Bill of Rights, eds. Julian Leeser and Ryan Haddrick (Barton: The Menzies Research Centre Limited, 2009) 8-9.

[15] Ibid.

[16] Kirby, “A Bill of Rights for Australia – But do we need it?”, 279.

[17] Belinda Tasker, “Fed: Ruddock rules out need for bill of rights in Australia”, Australia Associated Press General News Wire, 13 November 2006, 1.

[18] Galligan and Morton, “Australian Exceptionalism: Rights Protection Without a Bill of Rights”, 18.

[19] Michael Zander, A Bill of Rights? (London: Sweet & Maxwell, 1985) 39.

[20] Allan and Cullen, “A Bill of Rights Odyssey for Australia: The Sirens are Calling Australia “, 175.

[21] Kirby, “A Bill of Rights for Australia – But do we need it?”, 278.

[22] Allan and Cullen, “A Bill of Rights Odyssey for Australia: The Sirens are Calling Australia”, 174.

[23] George Brandis, “The Debate We Didn’t Have to Have: The Proposal for an Australian Bill of Rights”, 25 – 26.