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    Towards a Royal Commission into the treatment of asylum seekers, refugees and immigration detainees

Does Australia Need a Bill of Rights?

A speech by Hon Mr Justice David Malcolm, Chief Justice of Western Australia

Image: The Royal Seal, attached to the Australian Constitution and an asylum seeker in tears at the Woomera fence (2002)

I hope that the approaching millennium will see a rational and detailed national debate on the desirability, scope and content of a Bill of Rights.

While much has been achieved through the development of the common law, the courts have had to pay a price for this in terms of criticisms that they have taken too much power to themselves.

The guidance provided by a Bill of Rights would be one way of both assisting the courts as well as re-asserting the supremacy of Parliament.

This is a copy of the speech given to the Amnesty International Como Group on 16 July 1998 and published in the Murdoch University Electronic Journal of Law, Vol 5, No 3 (September, 1998).

Author: The Hon Mr Justice David Malcolm AC, Chief Justice of Western Australia
Subjects: Australia Constitution (Other articles)
Human rights (Other articles)
Human rights law and legislation (Other articles)
Issue: Volume 5, Number 3 (September 1998)
Category: Comment

The Hon Phillip Pendal MLC;
Ladies and Gentlemen

I am very pleased not only to have been invited here today to speak to you concerning an Australian Bill of Rights but also to provide my support for Amnesty's ongoing efforts to promote observance of human rights throughout the world. The guarantee of certain basic human rights to the individual is an important aspect of the observance of human dignity and integrity. There is however a broad range of approaches to human rights adopted by countries which share similar origins. The omission of a Bill of Rights from our Constitution is one of the elements which marked it as different to the United States Constitution from which a number of principles were derived. It was not however an omission by accident. The inclusion of a Bill of Rights was proposed and debated at the Constitutional Conventions which lead up to the drafting of the Australian Constitution. Its inclusion was defeated, somewhat ironically, on the basis that a 'due process' provision would undermine some of the discriminatory provisions in place at that time, including those laws which were enacted to the detriment of Aboriginals and Asian immigrants.

A number of attempts have since been made to amend the Constitution to include a Bill of Rights. Commonwealth Parliamentary enquiries in 1929 and 1959 rejected the proposal. A referendum in 1942 which proposed inter alia a limited measure of protection for freedom of expression and the extension of freedom of religion to the States was also defeated [1]. In 1985 the Australian Government introduced into the Commonwealth Parliament the Australian Bill of Rights Bills. Following a strong and lengthy debate in the Parliament the Government decided on 18 August 1986 not to proceed with the Bill. In 1988 the Constitutional Commission recommended an entrenched Bill of Rights of the kind adopted in Canada and proposed that a new chapter be added to the Australian Constitution for that purpose. [2] This proposal was not taken up by the Government. However, referendums on a number of proposals were held late in 1988. There were three human rights provisions which bound the Commonwealth which it was proposed should also bind the States, namely freedom of religion, compulsory acquisition of property only on just terms and trial by jury. These proposals attracted a vote in favour of only 30 per cent. This was the lowest "Yes" vote in any Commonwealth referendum to date.

The context in which the current debate over a Bill of Rights is occurring is the impending celebration of the centenary of Australia's existing Constitution in 1901. This event has helped stimulate a series of reflections on the Constitution which have found their main political expression in the debate over whether and, if so, when Australia should become a Republic. From the standpoint of constitutional lawyers and the future of democracy in Australia a more significant issue has been raised by the discussion of the need for fundamental reforms to the Australian system of government. In the latter context, a Bill of Rights has began to loom large as one of the component parts of an overall package of recommended reforms. [3] At the Constitutional Centenary Conference of 1991 to celebrate the Sydney Constitutional Convention of 1891 a proposal to incorporate a guarantee of basic rights was put at the forefront of the agreed statement of the Conference. The Conference said:

"There was strong support for a guarantee of basic rights in some form, entrenching basic rights and especially democratic basic rights." [4]

A similar consensus has been demonstrated at subsequent conferences and conventions organised by or in conjunction with the Constitutional Centenary Foundation which was established following the Sydney Conference.

Prior to considering the merits and pitfalls of a Bill of Rights it is important to understand that certain individual rights are already recognised at common law. The "common law", in its broadest sense, means judge-made law and judge-developed law. As such, I include the interpretation of statute law, that is, the law as enacted by parliament, and the interpretation of constitutional provisions by the judiciary. The common law has protected civil and political rights in four main ways. First, it has recognised and protected a number of rights and freedoms which it has seen as fundamental. Secondly, responding to the avalanche of legislation which regulates our conduct, it has developed rules of statutory construction which limit the degree of legislative encroachment onto our rights and freedoms. Thirdly, the Australian High Court has in recent years begun to give new life to express guarantees in the Constitution. Fourthly, some judges have suggested that limitations on legislative competence to contravene fundamental rights are to be found in the "peace, order and good government" formulae in our Constitutions, or in implications to be drawn from the structure of the Australian Commonwealth Constitution and the free and democratic nature of Australian society. [5]

For example, in the context of the right of an accused person to a fair trial, the High Court has applied this as a general principle and found a new set of circumstances which have been to held to have deprived an accused of that right. This is a shift away from the traditional approach of looking at specific circumstances, such as a misdirection to the jury or the wrongful admission of evidence, to see whether the accused was deprived of a fair trial. In McKinney v The Queen the majority said that:

"The central thesis of the administration of criminal justice is the entitlement of an accused person to a fair trial according to the law." [6]

This was the justification for laying down a rule of practice requiring a trial judge to give a warning to the jury about uncorroborated police evidence of a confession. This was in the context where corroboration was readily available by means of video recording of interviews with the police. Brennan J dissented on this point saying that the improvement sought to be made by laying down a rule of practice, which would in future require investment in the necessary equipment by the executive government, was not a proper function of a court and was "more appropriate to the exercise of legislative power than it is to the exercise of judicial power". [7]

The right to a fair trial was also the basis for holding in Jago v District Court of NSW [8] that a court has the power to permanently stay proceedings if by reason of undue delay there will be a situation in which there will be "nothing a trial judge can do in the conduct of the trial (which) can relieve against its unfair consequences" [9]. This approach was taken a substantial step further in Dietrich v The Queen [10] in which it was held that while the common law of Australia did not recognise the right of an indigent accused person on trial for a serious offence to be provided with counsel at public expense, a court had power to stay criminal proceedings that will result in an unfair trial. This power extends to a case in which representation of the accused by counsel is essential to a fair trial. This will be so in most cases in which an accused is charged with a serious criminal offence. In such a case an application for an adjournment or a stay by an accused who is indigent and who is unable to obtain representation through no fault of his or her own should be granted until representation is available. This requires a prognosis to be made about the likely unfairness of the trial if the accused is unrepresented. If the trial goes ahead without representation and is unfair, the conviction will be liable to be quashed on the ground that there has been a miscarriage of justice. This was so held by Mason CJ, Deane, Toohey, Gaudron and McHugh JJ. Brennan J dissented, again asserting that the court was making an unwarranted intrusion into executive and legislative functions by declaring a common law entitlement to legal aid. [11].

In terms of international human rights norms, Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights has brought "to bear on the common law the powerful influence of the Covenant and the international standards it impacts". [12] It may be expected that the results of individual petitions to the United Nations Committee could have similar results in Australia to those which have occurred in England as a result of the accession of the United Kingdom to the European Convention on Human Rights and the decisions of the European Court. It must be acknowledged, however, that many of the rights recognised by the International Covenant on Civil and Political Rights are not currently protected by the common law.

In Australia, some recent developments in the common law have been expressed to be made consistently with international norms. In Mabo v Queensland [No 2] in which Brennan J (with whom Mason CJ and McHugh J agreed) said:

"The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of a civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands. [13]

This was a significant part of the rationale for abandoning the fiction of terra nullius which was the basis for the "discriminatory rule" of the common law departed from in Mabo.

Australia is a party to the United Nations Convention on the Rights of the Child under which the best interests of the child are declared to be a "primary consideration" in all relevant actions concerning children. [14] In Minister for Immigration v Teoh [15] it was held that the provisions of the Convention were relevant to a decision to deport the father of children. While such provisions were not incorporated into domestic law, accession to the Convention resulted in an expectation that those making administrative decisions in actions concerning children would take into account as a primary consideration the best interests of the children, who were themselves Australian citizens. Their father was not, although he had applied for resident status. Mason CJ and Deane J [16] said that the provisions of an international Convention to which Australia was a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law. It was acknowledged, however, that courts should act in this fashion with due circumspection, when the Parliament itself has not seen fit to incorporate the provisions of a convention into domestic law. A departmental instruction which, in effect, ignored the interests of the children was held to render the proceedings invalid for want of procedural fairness.

While the common law has developed to protect some civil rights, the question of the ability of the common law to develop so as to deal with ongoing infringements of those rights was examined by the Chief Justice of South Australia, the Hon John Doyle (then Solicitor General of South Australia) and Ms Belinda Wells in 1992. They strongly suggested that "no-one should underestimate the capacity of the common law to adapt to change in society. [17] It was conceded, however, that there are two "obvious limitations" on the ability of the common law to protect human rights. The first is the principle of parliamentary supremacy which, in the context of common law protection of civil rights, holds that parliament may legislate to alter, restrict or negative any protection created by the common law. The second is the basic approach of the common law to the question of rights in terms of the identification of what is left after the limitations and restrictions imposed by law. For example, freedom of speech is a residual right, being what is left subject to the application of the law of defamation, contempt, sedition, official secrets, confidentiality, etc.

To these limitations, two further limitations might be added. The first is that, while the courts are increasingly responding to society's attitude to human rights, the capacity of the common law is limited to the extent that it is opportunistic. No general statement of relevant rights can be developed in response to the individual case. The Court is restricted to a declaration of rights as between the parties before it. The second is that the development of the common law is dependent upon the doctrine of precedent. To the extent that the courts develop an approach based upon general rights such as the right to a fair trial or the right to freedom of speech or expression, the approach must be a reasoned and principled, based on a balancing of the interests involved and with an eye to consistency [18] with previous decisions.

In England, the limited capacity of the common law to adapt and change is illustrated by the decision of the House of Lords in relation to blasphemous libel in R v Lemon: R v Gay News [19]. The question was whether an intent to blaspheme was an element of the offence. It was held that it was not. Lord Scarman observed that it was his duty to state "the existing law in a form conducive to the social conditions of the 20th century" [20] and for "a plural society which recognises the human rights and fundamental freedoms of the European Convention". [21] His Lordship, however, was not prepared to extend the principle of blasphemy to any religion other than Christianity. This would involve a change in the law which he was prevented from making because it was "shackled by the chains of history". [22] In other words, if there was to be a change it was a matter for the legislature not the courts.

Apart from the limitations upon the development of the common law to protect human rights that I have outlined, it should also be remembered that there is also a current controversy in Australia regarding the extent to which the judiciary should be entitled to develop and make new law. In recent times, the judiciary, an in particular the High Court, has been the subject of a great deal of criticism by the public, politicians and some media for seeking to make new law. This is said to be the exclusive function of Parliament. The process of judges and courts developing, making and occasionally changing the common law has been going on for a very long time. The common law developed and modified by judges over the centuries is as much a part of our law as an Act of parliament. Parliament is supreme however. Within the limits of its constitutional power parliament can change the law which has been declared by the Courts. There is no reason to change this system. As Justice McHugh of the High Court pointed out in 1988:

"Law-making by judges is likely to remain controversial, but its existence seems essential. The need for and the right of the judge to make law in appropriate cases is now well-established."[23]

Doyle and Wells, however, caution that:

"In considering the proper rule of the common law in the protection of human rights we have to bear in mind that in Australia the High Court is working within a system in which there is no Bill of Rights, entrenched or unentrenched, to guide it. The court has no clear mandate from society to strike down legislation for contravening human rights and no guidance as to the rights to be protected. The courts might act more confidently in this area if parliament provided some indication of the rights which are to be given the greatest weight." [24]

A systematic and extensive survey of popular opinion conducted in 1993 found that 54 per cent of Australians did not think that human rights are well protected under the existing system. Seventy-two per cent were in favour of the Adoption of a Bill of Rights and 61 percent believed that the final decision in relation to human rights matters should rest with the courts rather than the Parliament. [25] The same survey also found that the views of most politicians were significantly different from those of the people they represent. Thus 78 per cent of Members of Parliament, at both Commonwealth and State levels, concluded that human rights were already well protected within Australia.

Not surprisingly, 76 per cent also considered that Parliament rather than the courts should be the final arbiters in matters affecting human rights. While the views of Labor Parliamentarians (89 per cent of whom favoured a Bill of Rights) were radically different from those of their Liberal Party and National Party colleagues (with 68 and 78 per cent, respectively, opposed), there are presumably at least some who support the views expressed by the former Commonwealth Minister of State, Mr Gary Johns. According to Mr Johns, "the debate about the rights of individuals and the rights of minority groups . . . has now reached a point of diminishing returns". In his view, there is, there are "no more great gains that can be made in the battle for rights . . . for women, migrants, blacks, homosexuals or every other subgroup". In Mr Johns' opinion, this view is shared by most Australians: "the majority don't associate with any of these groups and there is a point at which the vast majority say, 'I have had enough, society is reasonably fair . . .'." [26]

This approach seems to rest on two assumptions. The first is that the status quo will not deteriorate any further and therefore no additional protection is required. The second is that the rights of groups such as women, Aborigines, gays and migrants are already protected to the greatest extent possible, or at least feasible, within our society. Anti-discrimination legislation exists at both State and Commonwealth levels. Other commentators have also expressed the view that the existing degree of protection is essentially adequate. Thus, for example, one author has concluded that "we have not been blind to the threat to liberty and we have developed our own ways of dealing with it. In practice our civil rights are as safe here as anywhere on earth." [27]

This perspective finds scant support in other quarters. In 1986, the then Chief Justice of the High Court of Australia, Sir Anthony Mason, wrote that:

". . . the common law system, supplemented as it presently is by statutes designed to protect fundamental human rights, does not protect fundamental rights as comprehensively as do constitutional guarantees and conventions on human rights . . . The common law is not as invincible as it was once thought to be". [28]

This view is echoed by Hilary Charlesworth who considers that:

"Common law protection of rights is minimal; the Commonwealth government's power to legislate to implement international obligations with respect to human rights has been only partially and inadequately exploited; the States generally have given the protection of human rights a low legislative priority; and Australian participation in international human rights instruments has often been diffident." [29]

The question whether Australia should have a Bill of Rights and, if so, in what form and with what content is essentially a political question. Opinions differ regarding whether it is proper for a judge to express an opinion one way or another on the question. In 1988 a former Chief Justice of the High Court, Sir Anthony Mason, announced that he had changed his mind on the answer to the question and was now in favour of a Bill of Rights. He did so because Australia was going against the international trend and was getting out of step with comparable countries such as Canada. [30]

The former Chief Justice, Sir Gerard Brennan, has been more circumspect when he said in 1992:

"We could introduce a Bill of Rights and have it administered by our existing courts, but would Australians wish that to be done? The voting at the last referendum suggests that the answer is resoundingly negative. However, non-party political interest in and discussion of the Constitution in the last decade of this century, restores the question to the agenda. I do not propose an answer to the question for reasons which I shall mention. The question is essentially political and should be answered by reference to the political needs that might be satisfied by an entrenched Bill of Rights and the burdens which might be imposed by its introduction." [31]

When considering what we mean by a Bill of Rights, Lord Browne-Wilkinson has provided some useful terminology. He uses the term "the full Bill" to refer to the rights that are judicially enforceable and that cannot be overridden by Act of Parliament. An example of this is the Bill of Rights of the United States of America. What His Lordship calls a "half-way Bill" would be enforceable against the executive and, in the absence of clear statutory enactment to the contrary, it would be presumed that Parliament in passing legislation did not intend to infringe these rights. However, a half-way Bill would not give the courts the power to invalidate an Act of Parliament. The half-way Bill is typified by New Zealand's Bill of Rights. [32]

The arguments for and against a Bill of Rights have been well expounded in the 1987 Report of the Advisory Committee to the Constitutional Commission on Individual and Democratic Rights. [33] I now briefly outline these arguments, some of which I have already touched upon.

The arguments in favour of a Bill of Rights include the following:

  1. The Inadequacy of Present Constitutional Provisions. Many submissions made to the Committee drew attention to the narrow scope and interpretation of existing Constitutional guarantees. Section 80 of the Constitution provides that "The trial on indictment of any offence against any law of the Commonwealth shall be by jury . . .". This guarantee has been side-stepped by the Commonwealth Parliament legislating to have offences tried summarily, ie, without indictment, even when offences attract the possibility of substantial terms of imprisonment. In 1928 the High Court held that the Parliament was not bound to provide for a trial on indictment for offences carrying more than one year's imprisonment. [34] This situation led Deane J to comment that: "The guarantee of trial by jury which is contained in s.80 of the Constitution has been drained of most of its strength by the combined effect of the Parliament and the decisions of this Court . . .". [35] Other concerns include the right to vote and freedom of religion. There is no direct right confirmed by section 41 of the Commonwealth Constitution. The right is derivative and dependent upon the right to vote at an election "for the more numerous House of the Parliament of the State". Freedom of religion may be cut down by State laws except to the extent restricted by anti-discrimination legislation.
  2. The Inadequacy of the Common Law. I have already dealt with the debate surrounding this issue, so I will not dwell on it except to say that the Committee noted that usually such rights that are recognised under the common law are those left after all the exceptions and limitations to them have been dealt with. Take the example of free speech: the right to free speech at common law is that which is left after the censorship laws, defamation, contempt of court, contempt of parliament, sedition, criminal libel, blasphemy, radio and television programme standards, and many other minor limitations have made frequently and quite proper but occasionally excessive inroads.
  3. Statutory Erosion of Rights Upheld by the Common Law. It was also emphasised to the Committee that all common law rights and freedoms can be overridden by otherwise valid Commonwealth, State and local government legislation. The will of the legislature is paramount and no matter how harsh or oppressive it can override the individual's common law rights and freedoms.
  1. As Millhouse J said in Grace Bible Church v Reedman [36]:
  2. ". . . in the absence of a Bill of Rights . . . the citizens of this State do not have rights which may not be overridden by Act of the South Australian Parliament."
  3. It is sometimes said that Parliament is the great bastion of our liberties. However, a government wishing to be seen as doing something decisive when confronted with a problem that is inconveniencing many people or causing public pressure for a response can and will infringe fundamental rights and freedoms of all. It is argued that the approach of the Parliamentary process to human rights is illustrated by the relative absence of any safeguards in the law-making system itself as against infringements of these rights. Much legislation passes through Parliament at considerable speed, most of it has not been looked at in any great depth, except by a small number of public servants and possibly the opposition spokesperson's relevant Minister. The amount of legislation enacted by Parliaments has increased greatly, and that increase is exceeded only by the amount of delegated legislation that is produced.
  4. Legislation is supposed to be scrutinised by the Parliament, but the strong party discipline and the entrenched power of the executive have diminished the safeguard significantly. In most of our legislatures there is little or no evidence of effective safeguards in respect of delegated legislation. In recent times, however, lack of control by the party in Government in the Senate has seen much closer scrutiny of Commonwealth legislation.
  1. Enhancement of Democratic Government. The twentieth century trend toward judicial review of governmental actions would be extended by entrenching limits on governmental power in the Constitution. The idea that governments are not rulers but the servants of the people has only slowly gained acceptance in Australia. Once it is appreciated that governments exist to govern for the people, it follows that individuals have rights which governments cannot transgress or transgress only to the extent necessary to uphold the rights of other people.
  2. The Educative Role of Constitutional Rights. It was suggested to the Committee that the entrenchment of rights into the Constitution would have a crucial educative role. It would be more than a legally enforceable catalogue of fundamental rights and freedoms. It would alert people to their own rights and confront them with the rights of others and the need to develop compromises between conflicting rights. Australians would also have a comprehensive means of educating themselves about the significance of their fundamental rights and freedoms, and so they would acquire a readily accessible set of principles by which to measure the conduct of the government.
  3. An Additional Guide for Judicial Interpretation. Some submissions put to the Committee suggested that the inclusion of a Bill of Rights in the Constitution would provide a statement of rights which could be used in the interpretation of legislation. At present there is no touchstone which judges can use to interpret legislation so that it can achieve its objectives.
  4. A Means of Meeting Australia's Treaty Agreements. It was submitted to the Committee that the growth of international concern about human rights had given rise to an expectation that civilised countries will guarantee for their citizens clearly stated and readily enforceable rights.

When in Government, both major political parties have undertaken obligations on behalf of Australia in international law by ratifying treaties such as the International Covenant of Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights, the International Convention on the Elimination of All Forms of Discrimination Against Women, the International Convention on the Elimination of All Forms of Racial Discrimination and the International Convention on the Rights of the Child. Australia has also signed numerous International Labour Organisation Conventions. To date Australia has met its international obligations to varying degrees. In some cases it was suggested to the Committee that Australia had failed to fulfil its obligations to protect relevant human rights, and constitutional entrenchment of a Bill of Rights would ensure that these obligations are fulfilled. The entry into international treaties has no direct impact on Australian domestic law in the absence of legislation to implement the treaty, particularly when the international obligation undertaken by the Commonwealth can only be implemented by a State. The significance of an international treaty to which Australia is a party was discussed by Mason CJ and Deane J in Minister for Immigration v Teoh. [37]

The arguments against a Bill of Rights in Australia have principally relied upon the protection afforded by the common law. Sir Harry Gibbs, former Chief Justice of the High Court, has said:

"In Australia there seems to be no reason to fear such gross violations of human rights as those which regularly occur in some other countries. . . . The common law has proved to be a flexible and effective instrument for the protection of freedom and the mitigation of injustices that might otherwise be brought about by ill-considered legislation. [38]

Some of the arguments are based on the contention that a Bill of Rights would confer too much power on the courts and, in particular, the High Court. Others contend that existing constitutional protections are sufficient.

Another argument against a written Bill of Rights is that many rights may be left out and over the course of time, those that are left out may be perceived to be of lesser value and consequently more readily susceptible to extinction. [39]

Another perceived problem with a Bill of Rights is that rights and freedoms tend to be stated in very general terms. Many of the articles in the defeated Australian Bill of Rights granted "rights" and "freedoms" in very general terms without qualification. The United States allow influences such as the political philosophy or values of the person called upon to interpret such legislation to result in widely differing interpretations. This has often been used as an example of the danger inherent in broad statements of principle.

When legislation such as the proposed Australian Bill of Rights gives very wide powers to courts to decide issues which may involve questions of social policy, the fear is expressed that results may differ according to the social or political philosophy of the judges that decide each case. In these circumstances it is argued uncertainty and injustice may be introduced into the law. This seems to be the most fundamental argument against constitutional entrenchment of a Bill of Rights. A number of commentators see the issue of rights the subject of a Bill of Rights as the exclusive domain of the elected representatives of the people. An active judicial role in relation to a Bill of Rights is therefore seen as an affront to "Parliamentary sovereignty" and the inherently democratic nature of the operation of Parliamentary system. It is contended that the judges are not elected, not representative and not sufficiently accountable. This argument proceeds on the basis that broad written principles entrenched in the Constitution will probably result in incompatibility with the present structure of the common law and will involve judges in the policy and politics of a nation to an excessive extent. [40]

Australia, without a Bill of Rights, is now outside the mainstream of legal development in English speaking countries, particularly those most comparable in their political and legal systems, including New Zealand and Canada. [41] While it is true that the United Kingdom lacks a domestic Bill of Rights, the possibility and increasingly the fact of recourse to the European Court of Human Rights and the flow-on effect to decisions by United Kingdom courts, means that the United Kingdom does, in effect, have a Bill of Rights. The European Court has not regarded the common law in a number of areas as protecting human rights adequately. The new United Kingdom Government has announced its intention to legislate to make the Convention a part of the domestic law.

It is disappointing to note that to date in Australia there has been very little sustained thought or research devoted to the fundamental issues of the detailed nature and content of a Bill of Rights. As Professor Philip Alston has pointed out:

"As long as this continues to be the case, Australia runs a strong risk of either acquiring a Bill of Rights by default, or by sanctioning the adoption of one on the basis of poorly informed and ill-thought through political deal-making. It is therefore time to grasp the nettle and engage in a sustained national debate over the options which are realistically available to us as we enter into the twenty-first century. [42]

In the various debates regarding the Australian Constitution in the lead up to the Centenary of Federation in 2001 the main focus has been on the questions whether Australia should become a republic and, if so, when and in that event how should the Head of State be selected, elected or appointed. The question whether there should be a Bill of Rights does not seem high on the national agenda, despite the opinion polls, because of the current level of controversy regarding the extent of the judicial power. There are also critical views expressed in the States regarding the external affairs power of the Commonwealth. This criticism has been directed to accession to the United Nations Convention on the Rights of the Child and other treaties without adequate consultation with participation by the States. This has been a recurring issue at Constitutional Conferences and Conventions and other discussions promoted by the apolitical Constitutional Centenary Foundation. Issues of human rights tend to be debated in a context where the real questions are sometimes obscured by economic, racial and other issues which lead to those promoting the cause of fundamental rights being referred to as "bleeding hearts" and "do-gooders".

I hope that the approaching millennium will see a rational and detailed national debate on the desirability, scope and content of a Bill of Rights. While much has been achieved through the development of the common law, the courts have had to pay a price for this in terms of criticisms that they have taken too much power to themselves. The guidance provided by a Bill of Rights would be one way of both assisting the courts as well as re-asserting the supremacy of Parliament. At the same time it will need to be acknowledged by Parliament that the courts will become more involved in the weighing of competing considerations, including those of a policy nature in the interpretation and application of a Bill of Rights, whether entrenched or unentrenched. This is what has occurred in Canada. While some decisions have been controversial, the status of the Supreme Court of Canada has been enhanced by its work in this area.


[1] Sir Anthony Mason, "A Bill of Rights for Australia - But Do We Need It?", (1995) 32 Briefing; Australian Institute of Jewish Affairs Inc 1 at 2.

[2] Final Report of the Constitutional Commission, 435-888 (1988); and draft Bill No 17 for "An Act to Alter the Constitution so as to guarantee certain rights and freedoms" at 1018-1021

[3] Alston, P (1994) "An Australian Bill of Rights: By Design of Default?", in Towards an Australian Bill of Rights, Ed. Alston, P., Centre for International and Public Law, Canberra and Human Rights and Equal Opportunity Commission, Sydney 1 at p.3

[4] Constitutional Centenary Conference, Sydney (April 1991)

[5] Doyle J. & Wells B., "How Far Can the Common Law Go Towards Protecting Human Rights?", in supra n. 3 at p. 109

[6] (1991) 171 CLR 468 at 478 per Mason CJ, Deane, Gaudron and McHugh JJ

[7] Ibid at p.486

[8] (1989) 168 CLR 23

[9] Barton v The Queen (1980) 147 CLR 75 at p.111 per Wilson J

[10] (1992) 177 CLR 292

[11] Ibid at p.323-324

[12] Mabo v Queensland [No 2] (1992) 175 CLR 1 at p.42 per Brennan J

[13] Mabo v Queensland [No 2] at p.42

[14] At p.31

[15] (1995) 69 ALJR 424

[16] Ibid at pp.430-431

[17] Supra n. 5 at p.107

[18] Supra n. 5 at p.116. The tendency of material published before trial to prejudice a fair trial led to a finding of contempt in Hinch v Attorney General of Victoria (1987) 164 CLR 15. A different balancing of interests led to the conclusion that the directions given by the trial judge about that same material meant that the trial which took place was not unfair: Glennon v The Queen (1992) 173 CLR 592. It was held that there was no need to stay the trial

[19] [1979] 1 All ER 898

[20] Ibid at p.922

[21] Ibid at p.927

[22] Ibid at p.922

[23] The Hon Justice McHugh, The Law-Making Function of the Judicial Process: Part II (1988) 62 ALJ 116 at p.127

[24] Supra n. 5 at p.110

[25] Galligan, B (1993) "Protection of Rights", in Constitutional Centenary at p.17 cited in supra n. 3 at p.6

[26] Taylor, L "Minorities Rights Irk Most: Mabo Minister", The Australian (16 June 1994) cited in supra n. 3 at p.1

[27] Hirst, J (1994) A Republican Manifesto, Oxford University Press: Sydney at p.30 cited in supra n. 3 at p.6

[28] Mason, Sir Anthony, (1986) "The Role of A Constitutional Court in A Federation. A Comparison of the Australian and United States Experience", The Federal Law Review, Vol. 16, 28 at p.12 cited in Australia, Advisory Committee on the Individual and Democratic Rights Under the Constitution Report, Canberra AGPS, 1987 at p.13

[29] Charlesworth, H (1994) "The Australian Reluctance About Rights", cited in supra n. 3 at p.21

[30] The Hon Sir Anthony Mason, A Bill of Rights for Australia?; Address to the Australian Bar Association Bicentennial Conference (1988)

[31] The Hon Sir Gerard Brennan, The Impact of a Bill of Rights on the Role of the Judiciary: An Australian Response; Supra n. 3 at p.184

[32] Browne-Wilkinson (1992), "The Infiltration of a Bill of Rights" PL 397 at p.398-399 cited in Wright, A (1996), A Bill of Rights: Does it Matter?, Vol. 1, Conference Papers, New Zealand Law Conference, Dunedin, New Zealand 79 at p.79

[33] Commonwealth of Australia (1987)

[34] R v Archdall (1928) 41 CLR 128 at 139-140 per Higgins J

[35] Clyne v Director of Public Prosecutions (1984) 58 ALJR 493 at p.498

[36] (1984) 54 ALR 571 at p.585

[37] (1995) 69 ALJR 423 at pp.430-431

[38] A Constitutional Bill of Rights, in Baker, K: An Australian Bill of Rights, Pro and Contra, Institute of Public Affairs, 1986

[39] Parliament of Western Australia (1991), Joint Select Committee of the Legislative Assembly and the Legislative Council on the Constitution, Final Report, Vol. 1 at p.6

[40] Supra n. 33 at pp.26-27

[41] Burdekin, B (1994) "The Impact of a Bill of Rights on Those Who Need if Most", in Towards an Australian Bill of Rights, Ed. Alston, P., Centre for International and Public Law, Canberra and Human Rights and Equal Opportunity Commission, Sydney 147 at p.150

[42] Supra n. 3 at p.17

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