Question: Should Australia Have a Bill of Rights?Part A: Knowing and understanding the lawHuman rights are rights inherent to all human beings that aim to guarantee a life free from fear, harassment or discrimination, and outline specific rights in order to be applied to legal cases.
Currently, Australia does not have a Bill of Rights. However, attempts to protect human rights may be found in the Australian Constitution (1901), the Australian Human Rights Commission (AHRC), legislation passed by the Commonwealth Parliament, international treaties, or common law precedent. The AHRC is a statutory national human rights institution, responsible for the federal anti-discrimination and human rights legislation. There are five legislative acts, which include the Racial Discrimination Act (1975) and the Sex Discrimination Act (1984). Additionally, there are five explicit individual rights in the Constitution, which include the right to trial by jury (Section 80), and can be interpreted to protect freedom of political communication. As well, judicial precedent (common law), inherited from the United Kingdom, can be applied to court cases, however, lacks the force of law to take active measures to protect human rights. Furthermore, Australia is a party to the seven international human rights treaties, which include the International Covenant on Civil and Political Rights (ICCPR) and the UN 1954 Convention Relating to the Status of Stateless Persons. Despite Australia being signatory to these treaties, there is evidence of legislative court cases which contravenes the country’s treaty responsibilities.
The absence of a clear human rights bill causes many Australians, especially minority groups to wrongfully experience injustice. It is thus in the best interest of Australia to introduce a bill of rights into action.Part B: Investigating legal issues It is apparent that the few human rights that are listed in the Constitution are impromptu rather than comprehensive, meaning that many basic rights receive no constitutional protection. Although the Australian Constitution can be interpreted to protect freedom of political communication, it lacks an explicit right of free speech. The absence of clarity forces judges to unfairly apply these rights based on personal opinion rather than a unanimous bill of rights. Such is the case in the High Court ruling of Comcare v Banerji, in which a government public servant was fired for her critical posts regarding Australia’s treatment of immigration detainees. This case was unjust, as it failed to recognise the common law right of freedom of expression and the ICCPR treaty obligations. Banerji was wrongfully discharged, which could have been avoided if not for the lack of specific freedom of speech rights in Australia. Another case negatively affected by the absence of a coherent bill of rights is the 2004 case of Al-Kateb v Godwin. In this case, Kateb applied for a temporary protection visa, on the grounds that the UN 1954 Convention Relating to the Status of Stateless Persons obliged Australia to protect him.
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However, his application was rejected and upheld by the Federal Court of Australia, and was declared stateless and detained without any foreseeable prospect of release. Although indefinite detention is considered arbitrary and illegal due to article 9 of the ICCPR and the common law right to liberty, the High Court of Australia held that the Migration Act 1958 permitted Al-Kateb to be detained indefinitely, failing to recognise the country’s treaty responsibilities and common law precedents. This case’s harmful outcome for Al-Kateb and ensuing refugees can be attributed to the lack of legally binding human rights protections that can be clearly applied to court cases. Part C: Responding to the Law These cases are clear examples of how the scattered sources of law are not effective in protecting Australian’s human rights, and thus proves the desperate need for a clear bill of rights to prevent these major injustices against Australia’s population, specifically minority groups. In the ruling of Comcare v Banerji, the High Court acknowledged that, had this case arisen in Canada, the Canadian Charter of Rights and Freedoms may have provided some protection for human rights. Canada’s Charter is written into the Constitution to outline and protect the human rights, which fall into seven distinct categories; fundamental freedoms, democratic rights, language rights, mobility rights, minority language educational rights, legal rights, and equality rights.
The Constitution requires all laws to be consistent with the rules set out in it, meaning that the charter is binding on the federal government, and the territories under its authority, outlined in Section 32. If Canada’s human rights protections were implemented into Australia, both the cases of Banerji and Al-Kateb would have been protected from the injustice they suffered without a bill of rights. This is because Section 9 guarantees the right against arbitrary detainment and imprisonment, and Section 2 outlines freedom of expression as a “fundamental freedom”, however, also permitting the Government to restrict the right “reasonably” in the case of hate speech, obscenity, and defamation.However, arguments against a bill of rights often mention the failing United States (US) Constitutional rights. This is because a bill of rights protected under the Constitution is difficult to change, as a proposed amendment must be passed by two-thirds of both houses of Congress, then ratified by the legislatures of three-fourths of the states. This is particularly problematic with the fifth amendment right to bear arms, making it almost impossible for the US parliament to legislate for gun control. However, this can be resolved by implementing human rights under a federal legislative act, rather than under the Australian Constitution. This would mean that instead of having to pass through parliament and being voted on through a referendum to change the Constitution, an Act of Human Rights could be changed if parliament approves a proposed bill that amends the current legislation. By implementing a human rights legislative act, the issue faced in the US would be prevented. Furthermore, introducing a federal court to hear human rights cases would be particularly beneficial in guaranteeing justice for victims whose offenders unlawfully acted against the proposed Human Rights Act. A court dedicated to seeing human rights issues would resolve these specific cases quicker than if the case was heard through normal statute or federal courts, thus preventing the overcrowding of cases in courts.Therefore, implementing a federal legislative act based on Canada’s human rights bill, that amends opposing legislation, would offer greater protections for Australia’s population, especially for minorities.
Additionally, introducing a human rights court would avert the issue of court overcrowding. If the above legislation is adopted Australia as a whole will benefit, in an ethical way that sufficiently protects both the majority and minorities human rights and strengthens the clarity and justice of the legal system.
