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Does Australia Need a Bill of Rights?

photograph of Australia High Court building

Rights are one of the most recognizable ethical tools of the modern world. They have increasingly dominated the way we think about our moral lives – as individuals, as nations and in international relations. Nearly every mature, liberal democracy has a constitutional bill or a charter of rights to which lawmakers and keepers must defer. 

Rights language has become entrenched in the way we speak, that it is often taken as fundamental. A claim that “I have a right to X” will often trump other arguments. A right is an entitlement. A right entails a duty – the right to freedom of expression entails the duty not to impede expression. In theory, if not always in practice, rights have been very important in guaranteeing the dignity, self-determination of persons. They are important because they promote those conditions necessary for well being, for humans to flourish and for society to promote that flourishing. 

But there can be a dark side to rights claims – for example a claim to the right of free speech can be used to protect racism and lies, the right to freedom of religion can be used to protect discriminatory practices and the right to bear arms, enshrined in the US constitution, has made it nearly impossible to tackle the scourge of gun violence in America. 

Some important philosophical questions about rights – what they are grounded in, what things should be considered rights, how they are protected and what to do when rights appear to clash with one another – remain a challenge. Some of these questions are central to the current national debate in Australia over whether a bill or charter of rights should be instituted. 

Australia is the only mature liberal democracy that does not have a charter or a bill of rights. Many feel that the introduction of constitutional rights is long overdue, yet others do not believe that a bill of rights is needed. In fact, many feel that such a bill might even be a hindrance to the administration of justice.  

This has manifested as a tension between ‘old constitutionalists’ who believe that the combined functions of the parliamentary and judicial system provide the best, most flexible and most democratic protections for Australians, versus those who think that the system is failing in some key areas which a bill of rights would help to rectify. 

At the time Australia’s constitution was written, early in the twentieth century, having a bill of rights as part of the constitution was rejected. It was argued that, in the words of former High Court Justice Michael Kirby, “a due process provision in such a bill of rights would undermine some of the discriminatory provisions of the law at that time.”

Some constitutional provisions function as rights provisions– such as freedom of religion. But it is the government’s legislative power which has expanded federal legislation and protected fundamental rights by creating specific statutes dealing with human rights questions or the removal of various kinds of discrimination. Many of these have been based upon Australia’s ratification of international treaties. 

Various parties feel this process has worked well because it gives flexibility to the system, where charters of pre-existing, inalienable rights can make the system inflexible. Up to now, whenever this debate has arisen, the general sense has been that Australia’s parliamentary democracy usually works reasonably well, and its citizens have usually had a high degree of trust in legislators. If they do not act justly, particularly if they act oppressively, they will be dismissed from office at the next election. 

A further objection to the introduction of a bill of rights, that such a bill would lead to a kind of ‘judicial imperialism’ by way of transferring power currently held by the legislative body, to the courts – unelected (usually white, middle-aged, male) judges. The worry is that, a bill of rights could result in the entrenchment of values of said judges into law, in a way that would prevail even over Parliamentary statutes. 

However, the argument that it would politicize the courts and allow too much power in the hands of judges, who are unelected and therefore not as accountable in the democratic system, may be losing ground. One contributing factor is this era of increased populism, from which Australia, following the results of the most recent election, is certainly not immune. In that vein, one could also add the growing  sense that people’s trust in democracy has been eroded through the influence of many different, powerful forces from corporate lobby groups to misinformation spread on social media. 

Nevertheless, the issue of flexibility is still present. As the example of the right to bear arms in the US illustrates, things which may be important fundamental rights at one time, may not be appropriate in another. Having protections enshrined as rights can make them very difficult to amend later. The Australian constitution, like the US constitution, is very difficult to alter, so the worry is that the community could be stuck with rights that end up resulting in more harm than good. 

A bill of rights drawn up now may not have the capacity to deal with problems of the future. We live in an age of such exponential technological change, we may not yet know what problems internet technology, biotechnology, genetics or artificial intelligence may pose. It is not likely that a bill of rights drawn up now would be able to predict or manage all of the issues that these advances might bring. The argument is that it is better to leave rights and responsibilities associated with these issues to be dealt with as they arise by the parliament of the day through the enactment of specific legislation. Such legislation can typically be expressed in far greater detail and specificity. 

On the other hand, the democratic system may have its own flaws when it comes to equal protections for every person. It does, of course favor the majority, and for this reason it is felt by some that a bill of rights is necessary to ensure the interests of minorities and other vulnerable individuals are equally protected. As Justice Michael Kirby, a strong advocate for a bill of rights in Australia, said in a recent address on the subject:  

Democracies look after majorities. Democracies are good in looking after majorities… In America, if President Trump does something which is considered unjust, there is provision for the appeal to the federal courts and ultimately the Supreme Court. But in Australia we have very few weapons if politicians in the majority don’t feel it is a matter they are interested in or that there are no votes in it. 

Though it is true that rights can sometimes be inflexible, and that there are difficulties in deciding what rights to enshrine, how to enforce them, and how to manage situations where they may come into conflict with one another, from the perspective of the question of how a society can best protect minorities or vulnerable individuals it is prudent to remind ourselves about the philosophical case for rights. 

The notion of inalienable rights is based on an ethical principle of equality and dignity. It is a deontological principle which has at its core the imperative to treat persons with respect, as ends in themselves but never as means to an end. This fundamental tenet is at the center of the notion of human rights. 

There have been cases in Australia over recent years in which the government, for largely political reasons, has failed in its duty to treat all people with respect and dignity. A prominent example is Australia’s treatment of refugees, holding them in indefinite detention in substandard conditions for basically political reasons. Justice Kirby argues that: 

Basically, the idea of finding the fundamental principles that bind us together and that our rules for a fair society are principles that should be bipartisan and not consigned to one side of politics.

A bill of rights would ensure that basic protections, like the right to freedom from discrimination and freedom of expression, would be guaranteed for all Australians, and all those under Australia’s protection. Minorities and the vulnerable would be protected from the possibility of legislation which would undermine these things. These protections communicate our convictions about principles like equality, justice and kindness, which is the essence of a good and free society.