2017 - SO2 - POL10001 - Australian Politics Assessment 3b - Research Essay.

Does Australia need a bill of rights?

AUSTRALIAN POLITICS
Research Essay 3b

Abstract
Does Australia need a bill of rights? Is it necessary for Australia to adopt the charter or bill of
rights? Or is the current separation of powers cover individuals human rights adequately.
This paper will discuss these issues to determine if as a nation do we in fact require one.

Benjamin Gough
09/10/2017

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2017 - SO2 - POL10001 - Australian Politics Assessment 3b - Research Essay.

The bill of rights was designed to protect the freedoms and liberties of the countries citizens.
Australia does not have a bill of rights, and this paper will critically assess and argue from
each angle why Australia should or should not adopt a bill of rights. Some Australians
believe that a bill of rights will not introduce any new fundamental rights that Australians do
not already have through the existing system that protects the human rights of people in
Australia, such as common law or human rights commission and that these laws protect our
human rights. Others argue that Australia should join other countries in introducing a bill of
rights. However, as we see on numerous occasions and accounts, we are failing in Australia
to provide for those freedoms satisfactorily and legally on many levels. This debated topic
has been highly controversial for some time. Arguments for and against the bill have both
apparent advantages and disadvantages, and I intend on highlighting these issues and facts in
further detail and putting forward a compelling evidence as to why belief in the bill of rights
would be beneficial or non-beneficial to Australia and why. This essay will cover these ideas
in further detail to determine whether Australia would, in fact, benefit for adapting these
changes or whether Australia should keep things the same.
The constitution of Australia first written in 1890 has been widely debated by politicians
whether or not the adoption of a bill of right was inherently necessary for Australia and has
continued to be argued well into the late 20th century until the implementation in the
Australian Capital Territory (ACT) of the Human rights commission act 1986. The early
decision makers at the time were against adopting the bill of rights during that period due to
nature of, and in agreement that the constitution, along with the separation of legislative,
executive and judiciary were adequate to protect human rights in Australia. Fenna (2014, p.
13) states that Australia has not adopted a constitutional bill of rights. The decision to not
pass a charter or bill of rights was considered unnecessary due to the key concepts and
practices approved when drafting the Australian constitution by the meshing of both the
American and English interpretations of government. Australias constitution currently
known as Washminster a combination of the American law and bill of rights, and the
English Westminster way of conducting parliament. By not adopting a bill of rights
internationally, Australia is seen to be bucking the international trend. Furthermore,
conservatives in Australian politics, politicians like Richard Di Natale for example as well as
leftwing party members are advocating for a charter of the right to be implemented.
Di Natale (2017) Leader of the Greens party while advocating the charter of rights states that
Australia is the only western democracy that does not yet enforce a bill that reflects the
fundamental human rights and freedoms from either a legislative or constitutional attitude.
The Adoption of a bill of rights or charter of rights would illustrate that Australia defends
and respects the human rights and liberties of each person regardless of religion or status. The
freedoms that have been hard fought and won and ones yet to be challenged and should be
bound by law so not to be in a position to be wound back. The examples of attacks on
fundamental human rights being committed are various and numerous, Metadata laws, the
northern territory intervention, Torture of refugees on Manus Island, to name a few. The
countless examples above provides the necessary information needed to adopt bills of rights
in Australia to protect fundamental human rights and the relationship with the law, and this
has been the case for legal academics in Australia.

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2017 - SO2 - POL10001 - Australian Politics Assessment 3b - Research Essay.

Legal academics have been arguing the case for a bill of rights for some time. Legal scholars,
along with the Australian public perceive lack of democratic processes within the Australian
parliament have identified and displayed a weakness of contemporary parliament at the
federal level (Gilligan, 2007). The evidence here suggests that the academics and legal
scholars arguments have a persuasive case to have a bill drafted and passed in the Senate.
With the instability felt by the public along with the lack of confidence in government
currently being seen in Australia the stability of protecting human rights may be the what is
required to return confidence. Former chief justice Sir Anthony Mason (1997) wrote that the
adoption of a bill of rights would bring Australia in from the cold. Furthermore, the
adaptation of this philosophy of law would make the human rights applicable to the body and
systems of law that other international countries and elsewhere that use a constitutional
framework enjoy (Australian Human Rights Commission, 2017). Australian left-wing
conservatives such as The Greens Party and Labour Party are advocating for the charter of
rights, although labour not as loudly. With the current perceived lack of trust in government
and the Australian parliamentary system, the discussion needs to head and answer a primary
question. Is a bill of rights necessary for the human protection rights or is the justice system
enough?
Raylene DCruz (2017) writes in an article assessing the need for a constitutionally
entrenched bill of rights in the advantages, and disadvantages of adopting a Bill of Rights.
She States that the broad general scope could allow judges to misuse their power, which
would negatively affect human rights, and as a nation, we need to consider whether we want
to grant more control to the judiciary. In this instance, it can confer that a charter of rights fits
to protect these fundamentals. However, she extends on that asserting that although there is
scope to entrench a bill of right constitutionally, there are measures in place such as the
human rights act that does not necessarily require them rooted in the constitution. John
Howard (2003) states during his term as one of Australias most influential Prime ministers
said that he resolutely opposed a bill of rights. The basis of the argument was that the nation
had three great pillars of democratic society, being a stable and robust essentially Australian
parliamentary system, an honest, incorruptible, independent judicial system, and a free media,
that were consistently sceptical (Gilligan, 2007). These words from such a popular politician
would have resonated throughout the halls of parliament and trickled down to the state level.
However, left-wing conservatives still opposed to liberal ideas tend to disagree due to party
agendas and are again pushing for the charter. Contemporary Australia needs assurances
protection of individual rights are foremost in parliaments minds when considering
legislation or repeals to the law in changing times.
The question that needs answering now is when the framers of the constitution 100 years ago,
were debating the issue was the future of its citizens in mind. Fundamentally back then and in
different times problems that are arising today would not have even been contemplated in the
early 1900s, as with the American constitution, for example, the right to bear arms back in
those times and the issues at hand were inherent at the time. In Australia Post world war I, II
times have and do change and so does our nation and the legislation needs to modernise these
ideas to bring into line with modern issues that our parliaments are dealing with issues such
as the threat of terror, religious fanatics Asylum seeker, and refugees and Aboriginals. Would
it be such a bad thing if the politician and judges were held accountable to each other and
both to the public? Would it be best to legislate a charter or entrench with the constitution?

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2017 - SO2 - POL10001 - Australian Politics Assessment 3b - Research Essay.

And most importantly would the Australian Aborigines be recognised in the drafting of the
new constitution and charter or bill of rights? And are these measures going to disrupt the
status quo, or open new doors, that open new problem such as the gay marriage legislation.
Australia is currently more unfortunate for the fact that it does not have a bill of rights.
Parliament needs to protect individuals. Research shows it is clear that the country requires to
some degree legislative action to align constitutionally as the issue has been ongoing for
nearly 100 years, however, what that may mean would have to align to the wants and needs
and consultation with the Australian public.
With little understanding of the parliamentary system, the constitution let alone bill of rights
is complicated. Some individuals do not even know we dont have a bill of rights,
automatically believing that the freedoms and individual rights currently enjoyed in Australia.
The public is aware human rights exist covered by legislation and the principle of responsible
government nevertheless not to what level. With this considered, the constitution is
fundamentally based on what the government is allowed or not allowed in consideration of
the majority with very exceptions for minor amendments. With such little understanding of
how the composition of the constitution works, it is easy to see how the rights of individuals
can suffer when misinterpretation of the law can exist that denies fundamental human rights.
It's remains a situation of democracy versus human rights. The executive and Parliament, our
democratic institutions are justifiably concerned about majorities, common interests, popular
views. However, human rights are by definition addressing issues relating to Australian
minorities, the vulnerable an unpopuler individuals. And the judiciary is the arm of
government best placed to protect them ( Anderson, D. 2010).
To summarise, Victoria and ACT have been the first to install a charter of rights or bill of
rights at the state level due to mounting pressure from proponents of the human rights
charters along with the people of the above states. Although Victorias and the ACTs human
rights charters are federally meticulously scrutinised for success, it stands to reason and only
natural, that in time along with appropriate consultation with the Australian public they
should succeed. It seems inevitable that a Charter or bill of rights will eventually appear
alongside the constitution at a federal level. At this time however ambiguous the issue may
look to the laymen, the research suggests that for the time being we are and will be covered
by the principle of responsible parliament in conjunction with the Human Rights Commission
Act 1986. With the issue, continually being debated and then rescinded in promises made
during election campaigns it looks as if these enactments are going to be the best protection
for Australian Human Rights for the foreseeable future. The inception of a federal Charter of
rights or bill of rights seems to have a long journey politically speaking until the issues are
resolved. However, it looks to be on track to eventually happen, and in doing so will bring
Australia out of the cold and trend with other democratic societies internationally.

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References.

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Australian Human Rights Commission, 2017. "How Are Human Rights Protected In
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