Department ofthe 1iWi INFORMATION AND RESEARCH SERVICES · 2011. 2. 3. · Published by the Department ofthe Parliamentary Library, 2000. INFORMATION AND RESEARCH SERVICES Research

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Research PaperNo. 20 1998-99

The Federal Parliament and the Protection ofHuman Rights

ISSN 1328-7478

© Copyright Commonwealth of Australia 2000

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Published by the Department of the Parliamentary Library, 2000

INFORMATION AND RESEARCH SERVICES

Research PaperNo. 20 1998-99

The Federal Parliament and the Protection of Human Rights

George Williams, ConsultantLaw and Bills Digest Group11 May 1999

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Contents

Major Issues i

Introduction 1

Rights in the Australian Constitution 2

Federal Human Rights Legislation 2

The Statutes 2

The Constitutional Dimension 3

The Scope for Further Legislation 5

Attempts at Refonn 5

The 1944 Referendum 5

The 1967 Referendum 6

The Human Rights Bill 1973 7

The Evans and Bowen Bills 8

The Constitutional Commission and the 1988 Referendum 8

The 1998 Constitutional Convention 10

Arguments For and Against 11

A Gradual Path Forward 14

Parliamentary Leadership ' 14

A Statutory Bill of Rights 15

Refonn of the Committee System 16

Constitutional Protection in the Longer Tenn? 17

Which Rights? 19

Conclusion 20

Endnotes 20


Major Issues

The Federal Parliament has a central role to play in the protection of the basic rights of theAustralian people. To date, this role has not been fully realised. While the Parliament hasenacted important legislation such as the Racial Discrimination Act 1975 (Cwlth), and itscommittees, such as the Senate Standing Committee for the Scrutiny of Bills, determinewhether bills trespass unduly on personal rights and liberties, no statute lists the core rightsattached to Australian citizenship. Neither does the Australian Constitution protect thebasic rights of the Australian people. It does not contain a Bill of Rights, but only a fewscattered provisions, such as the right to engage in the free exercise of any religion andfreedom of interstate trade.

The lack of an Australian Bill of Rights reflects the views of the framers of the AustralianConstitution expressed in the 1890s. The prevailing view was that Australia did not need aBill of Rights because basic freedoms were adequately protected by the common law andby the good sense of elected representatives, as constrained by the doctrine of responsiblegovernment. It is arguable, that nearly one hundred years after the Australian Constitutioncame into force, a Bill of Rights would make a positive contribution to the modemAustralian State. Such an instrument could enhance Australian democracy by expressingthe core rights of the Australian people, such as the right to vote and freedom ofexpression, as well as promoting tolerance and understanding in the community of issuessuch as cultural and racial diversity. The merit of this argument is reflected in the recentenactment of a Bill of Rights by nations that had previously relied upon the common lawtradition, such as Canada, New Zealand and the United Kingdom.

There have been many attempts to bring about a Bill of Rights for Australia. These havebeen either in the form of a statutory Bill of Rights enacted by the Federal Parliament or asamendments to the Australian Constitution. Every attempt has failed. Most recently, the1988 attempt to amend the Australian Constitution to extend freedoms such as religiousfreedom gained the lowest 'Yes' vote ever recorded in a national referendum.

The record of failed reform in this area, as well as recent decisions of the High Court thathave held that certain freedoms can be implied from the Australian Constitution,demonstrate the need for parliamentary leadership in any future attempt to bring about ascheme of rights protection. An attempt to introduce an Australian Bill of Rights should


not be based upon judicial innovation. Instead, it should be built upon the commitment andparticipation of the Australian people and their elected representatives. Hence, reform thatseeks to bring about a statement of the rights of the Australian people should be facilitatedby the Federal Parliament, and not by the courts. This process might be initiated byconvening a joint parliamentary committee or a special commission consisting of bothparliamentary and non-parliamentary members. This body might examine models such as theHuman Rights Act 1998 (UK) and the New Zealand Bill ofRights Act 1990, to detemiinewhether a modified form of either statute would be appropriate for Australian conditions andthe extent to which the parliamentary committee system could play a role under such astatute. The body should also be empowered to identify core rights and freedoms consistentwith the values of contemporary Australians.

The 1988 referendum demonstrated that any move to bring about an Australian Bill ofRights should follow a gradual and incremental path. Certain core rights should beprotected before others, and then in legislation, subject to a legislative override, before anyconstitutional entrenchment. This approach is a pragmatic means of protecting a limitedrange of the fundamental rights of the Australian people. Importantly, this approach wouldallow the oversight of the Federal Parliament at every step and would maximise theopportunity to create a workable balance between enabling the judiciary to foster the rightsof Australians and not vesting misplaced faith in the courts to solve Australia's pressingsocial, moral and political concerns.

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Introduction

The role that the Federal Parliament can play in the protection of human rights has beenfrequently neglected. Instead, attention has tended to focus upon the possibility of a Bill ofRights incorporated in the Australian Constitution and upon the High Court's finding thatrights can be implied from the current document. This should not be surprising. Since1988, Australian courts and not parliaments, have taken the lead in the protection ofhuman rights under Australian law; However, this cannot be sustained indefinitely, lestundue stress be placed upon the structure of government and the separation of powerscreated by the Constitution.

In 1988, the Australian people voting at a referendum defeated proposals for new rights inthe Constitution. The results were poor, with a national 'Yes' vote ranging from 30 to 37percent. In the decade since, the parliamentary process has been largely silent on a Bill ofRights. This vacuum has been filled by the courts, which have responded to developmentssuch as the emergence of Bills of Rights in nations including Canada and New Zealandand the creation of an international Bill of Rights in treaties and conventions. The HighCourt has lead the way in limiting the legislative power of Australian parliaments byrecognising a constitutionally protected freedom of political communication,1 as well asother rights such as a right to procedural fairness in the exercise of judicial power? Someindividual judges have even interpreted the Constitution as a document embodying manyrights, indeed almost an implied Bill of Rights.3

However, the Constitution was not drafted to include a Bill of Rights. To interpret it ascontaining a general scheme of protection for fundamental freedoms would compromisethe legitimacy of the High Court as the arbiter of the Constitution. It would alsocompromise the role of the Federal Parliament as the only body able to initiate and theAustralian people as the only body able to sanction changes to the text of the Constitutionunder section 128 of the instrument.4 In such circumstances, an effective scheme of rightsprotection can only be brought about by a process that has the Federal Parliament at itscentre.

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Rights in the Australian Constitution

Although the Australian Constitution does not contain a Bill of Rights, it does guaranteesome important freedoms. Most significantly:

1. section 80 guarantees the right to trial by jury (although the High Court has severelylimited the protection offered by this provisions)

2. section 116 provides for a range of religious freedoms, including the right to engagein the free exercise of any religion

3. section 117 prohibits the imposition of 'any disability or discrimination' on account ofState residence

4. section 92 provides that 'trade, commerce and intercourse among the States ... shall beabsolutely free', and

5. as a consequence of section 51(xxxi), the Commonwealth may only acquire property on'just terms'.

It is apparent from this list that the few rights that are listed in the Constitution arescattered about the text and are ad hoc rather than comprehensive. The result is that manybasic rights receive no constitutional protection. This is obvious from a quick cross-referencebetween the Australian Constitution and other instruments, such as the Canadian Charter ofRights and Freedoms 1982. For example, the text of the Australian Constitution does notinclude anything amounting to a freedom from discrimination on the basis of sex6 or race,and, while the Constitution has been interpreted to protect freedom of politicalcommunication,7 it lacks a more general right of free speech. The Constitution does not evencontain an express guarantee of the right to vote.

Federal Human Rights Legislation

The Statutes

There are many statutes at both the Commonwealth and State level that protect certainhuman rights, although there is no one statute that sets out the basic rights and freedoms ofthe Australian people. Human rights legislation may play a separate complementary roleeven where a constitution contains a Bill of Rights. While constitutional rights aregenerally only concerned with imposing limitations upon governmental action, humanrights legislation commonly also establishes rights and obligations as between privateindividuals, such as between employer and employee or between landlord and tenant. Thismeans, for example, that the enactment of the Canadian Charter of Rights and Freedoms in

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1982, or even the New Zealand Bill ofRights Act 1990, has not diminished the importanceof statute law in either Canada8 or New Zealand.9

The most significant Federal rights orientated legislation lies in the area of anti-discrimination legislation. lO Commonwealth legislation includes the Racial DiscriminationAct 1975 (Cwlth), the Sex Discrimination Act 1984 (Cwlth)l1 and the DisabilityDiscrimination Act 1992 (Cwlth). These Acts operate throughout Australia and areenforced, to the extent possible given the separation of powers in the AustralianConstitution,12 by the Human Rights and Equal Opportunity Commission. 13 In someinstances the scope of this legislation is very broad. For example, section 9(1) of theRacial Discrimination Act 1975 (Cwlth) provides:

It is unlawful for any person to do any act involving a distinction, exclusion, restrictionor preference based on race, colour, descent or national or ethnic origin which has thepurpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on anequal footing, of any human right or fundamental freedom in the political, economic,social, cultural or any other field ofpublic life.

The impact of such legislation should not be overstated. It is arguably inadequate indealing with problems of systematic discrimination and in promoting substantive, asopposed to merely formal, equality.14 In addition, the parallel provisions to section 9(1) ofthe Racial Discrimination Act in the Sex Discrimination Act and Disability DiscriminationAct are more limited as they only allow a complaint to be made on more specific grounds.For example, the Sex Discrimination Act lists protected grounds including sex, maritalstatus and pregnancy and prohibits discrimination in fields such as employment,education, accommodation and the provision of goods and services. The SexDiscrimination Act also contains a number of exemptions, such as in relation to religious,charity and voluntary bodies, competitive sport and tribunal decisions.

Perhaps the most significant weakness of Federal anti-discrimination legislation is that it issubject to amendment or repeal by subsequent Federal legislation. Once the· FederalParliament has bestowed a right or entitlement in a statute, it is equally competent, underthe doctrine of parliamentary sovereignty, to take such a right away.15 However, despitethis clear legal position, significant political problems may arise from any such move. Thiswas demonstrated by the political difficulties experienced by the Howard Government, inseeking to enact a response to the High Court's decision in Wik Peoples v Queenslani6

that arguably lessened the protection offered by the Racial Discrimination ACt,17

The Constitutional Dimension

The constitutional validity of Federal anti-discrimination legislation mainly depends uponthe Commonwealth's power to legislate with respect to 'external affairs' under section

3


51(xxix) of the Constitution. In the Tasmanian Dam Case18 and in subsequent decisions,19the High Court has held that this power enables the Federal Parliament to pass legislationto implement obligations that it has incurred by becoming a party to internationalinstruments such as treaties and covenants. It may implement such instruments to theextent that its laws are 'capable of being reasonably considered to be appropriate andadapted' to meeting the treaty obligation.2o If there is not sufficient conformity, orproportionality, between the law and the obligation, the law will be invalid. The Court hasshown flexibility in leaving the scope and means of implementation to Parliament. Forexample, the Racial Discrimination Act relies upon the International Convention on theElimination of All Forms of Racial Discrimination2l , the Sex Discrimination Act upon theConvention on the Elimination of All Forms of Discrimination Against Women, and theDisability Discrimination Act upon International Labour Organisation Convention 111-Discrimination (Employment and Occupation) Convention, the International Covenant onCivil and Political Rights 1966 and the International Covenant on Economic, Social andCultural Rights 1966.

Commonwealth anti-discrimination legislation has another important constitutionaldimension. Where Federal legislation is inconsistent with State legislation, it renders theState legislation 'invalid' in accordance with section 109 of the Constitution.22 The widthof the Commonwealth's anti-discrimination legislation, together with the broadinterpretation given to section 109 of the Constitution by the High Court, means that thereis significant scope for such legislation to protect human rights, at least as against actionby the States and Territories. Sir Harry Gibbs, a former Chief Justice of the High Court,commented that in section 9 of the Racial Discrimination Act 'we may already have whatappears to be a bill of rights, limited it is true in scope, which is effective[ly] entrenchedagainst the States,.23 This has proved correct in the field of native title, whereinconsistency with the Racial Discrimination Act rendered inoperative legislative attemptsby the Queensland and Western Australian Governments to extinguish or limit the nativetitle held by indigenous peoples in their State.24 It is also true of the Human Rights (SexualConduct) Act 1994 (Cwlth), section 4(1) of which provides: 'Sexual conduct involvingonly consenting adults acting in private is not to be subject, by or under any law of theCommonwealth, a State or a Territory, to any arbitrary interference with privacy withinthe meaning of Article 17 of the International Covenant on Civil and Political Rights.'Section 4(1) was clearly designed to override, under section 109 of the Constitution,sections 122 and 123 of the Criminal Code Act 1924 (Tas), which made homosexual sexualactivity between consenting adult males a crime. A matter was brought before the HighCourt to test whether the Commonwealth law was effective in achieving this. However,before the High Court could decide the issue, the provisions were repealed by theTasmanian Parliament.25

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The Scope for Further Legislation

Statutes such as the Racial Discrimination Act, the Sex Discrimination Act and theDisability Discrimination Act demonstrate the important role that the Federal Parliamenthas already played in the protection of human rights. However, these statutes go only asmall way to meeting Australia's international obligations under treaties such as theInternational Covenant on Civil and Political Rights 1966. Further opportunities exist forthe Federal Parliament to exercise its constitutional powers, through legislation and othermeans, to foster the protection of basic rights. To date, the protection provided is ad hocand of limited reach in focussing upon discrimination on the basis of race, sex ordisability. There is therefore scope for the Parliament to enact a regime of rights protectionunder its power over 'external affairs' that would protect other basic rights listed in theInternational Covenant on Civil and Political Rights 1966 and the International Covenanton Economic, Social and Cultural Rights 1966, such as the freedoms of speech, assemblyand movement.

Attempts at Reform

Several States and Territories have made faltering steps towards enacting a Bill of Rights.Despite several reports advocating a Bill of Rights,26 and even the introduction of suchBills into State Parliaments,27 the necessary State or Territory legislation has yet to bepassed. At best, State or Territory statutes have recognised rights on an ad hoc basis, suchas the right of peaceful assembly in the Peaceful Assembly Act 1992 (Qld). This has leftmuch of the focus for change at the FederalleveI.

There have been several attempts by the Federal Parliament to bring about a statutory Billof Rights or to amend the Constitution to recognise new basic freedoms.28 Amendment ofthe Constitution is provided for by means of a referendum under section 128. Areferendum proposal must be passed by an absolute majority of both houses of the FederalParliament, or by one House twice, and then by a majority of the people and by a majorityof the people in a majority of the States (that is, in at least four of the six States).29 Fortytwo proposals, only a few of which have concerned human rights, have been put to theAustralian people under section 128. Of these, only eight have been passed.3o

The 1944 Referendum

In 1942 it was proposed at the Constitutional Convention held in Canberra that theCommonwealth be given a series of new powers. Such powers were to include the powerto make laws with respect to:

carrying into effect the guarantee of the four freedoms, that.is to say:

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(i) freedom of speech and expression

(ii) religious freedom

(iii) freedom from want, and

(iv) freedom from fear."

This proposal would not have amounted to new guarantees of rights, but would have giventhe Commonwealth the power to legislate to guarantee such rights from abrogation byState legislation. Under section 109 of the Constitution, inconsistent State legislationwould have been rendered inoperative.

This provision did not emerge in the proposal that went to the people in a referendum held on19 August 1944. Instead the referendum proposal put to the people after being passed bythe Federal Parliament was that the Constitution be amended to grant the Commonwealthfourteen new heads of power over post-war reconstruction. The proposal also sought toinsert guarantees of speech and expression as well as extend the guarantee of religiousfreedom in section 116 to the States.32 These powers and guarantees would only haveoperated for a period of five years. The referendum was lost on the national vote with a45.39 per cent 'Yes' vote to a 53.30 per cent 'No' vote. It received a majority 'Yes' vote inonly two States.

The 1967 Referendum

The referendum that has received the highest 'Yes' vote was a proposal put to the peopleon 27 May 1967. That referendum gained the support of 89.34 per cent of voters and wascarried overwhelmingly in every State.33 Previously, section 51(xxvi) of the Constitutionhad empowered the Parliament to make laws with respect to: 'The people of any race,other than the aboriginal race in any State, for whom it is deemed necessary to makespecial laws'. The 1967 referendum deleted the words in italics. It also repealed section127 of the Constitution, which had provided: 'In reckoning the numbers of the people ofthe Commonwealth, or of a State or other part of the Commonwealth, aboriginal nativesshall not be counted'. .

Although these changes to the Constitution have been popularly seen as grantingAboriginal people 'equal rights' and in particular the right to vote,34 this is not correct. Theright to vote in Federal elections had been denied to Aboriginal people by section 4 of theCommonwealth Franchise Act 1902 (Cwlth), and, even where Aboriginal people mighthave been entitled to vote under section 41 of the Constitution,35 in practice the vote wasdenied to them.36 This was reversed and the franchise extended to Aboriginal .people byamendments to the Commonwealth Electoral Act 1918 (Cwlth) made in 1962,3 although

6


even then it was not compulsory for Aboriginal people to enrol to vote. While the 1967changes to the text of the Constitution extended the races power to Aboriginal people andrepealed the discriminatory section 127, they did not actually grant Aboriginal people anyrights. Indeed, it remains unclear whether the extension of the races power in section51(xxvi) to Aboriginal people gave the Federal Parliament the power to legislate for thedetriment, as well as the benefit, of Aboriginal people.38

The Human Rights Bill 1973

Despite the success of the 1967 referendum, the next two attempts to bring about greaterprotection for fundamental rights came in the form of statutory Bills of Rights. In 1973Senator Lionel Murphy, as Attorney-General in the Whitlam Labor Government,introduced the Human Rights Bill 1973 (Cwlth) into the Federal Parliament. The Billsought to implement the International Covenant on Civil and Political Rights 1966 inAustralia and would have protected a range of· rights such as freedom of expression,freedom of movement, the right to marry and found a family and individual privacy.39 Iteven sought to prohibit 'Any propaganda for war,.40 Murphy promoted the Bill on the basisthat the Constitution provides scant protection for rights, arguing that 'although we believethese rights to be basic to our democratic society, they now receive remarkably little legalprotection in Australia,.41 He stated:

What protection is given by the Australian Constitution is minimal and does not touchthe most significant of these rights ... Ideally, in my view, a Bill of Rights should bewritten into the Australian Constitution ... [T]he enactment of this legislation will be asignificant milestone in the political maturity of Australia. It will help to make Australian

. fred ·42socIety more e an more JUSt.

The rights listed in the Bill would have overridden inconsistent State legislation undersection 109. The Bill provided that Commonwealth legislation would also be ineffective ifit breached any of the rights listed in the Bill unless the Commonwealth statute expresslyprovided that it was to operate notwithstanding the Human Rights BiII.43 It also wentfurther than subsequent attempts at statutory Bills of Rights in one critical respect. Therights listed could be enforced not only against governmental action, but also againstprivate action.44 The Human Rights Bill met strong opposition and was never enacted,lapsing with the prorogation of Parliament in early 1974. Murphy was appointed soonafter to the High Court, where he broadly interpreted the express rights in the Constitutionand held that a number of other rights could be implied by the instrument.45

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The Evans and Bowen Bills

The failure of the Human Rights Bill did not end attempts to bring about rights protectionby Federal implementation of international instruments. The Whitiam Government, forexample, was successful in enacting the Racial Discrimination Act, while the Hawke LaborGovernment enacted the Sex Discrimination Act. Senator Gareth Evans, as Attorney-Generalin the Hawke Government, sought to take up where Murphy had left off in promoting astatutory Bill of Rights. In 1983 he oversaw the drafting of a Bill of Rights Bill that, like its1973 predecessor, would have implemented international rights instruments. However, the1983 model was weaker than its 1973 predecessor in several ways,46 most significantly inthat it would only have applied to governmental action, whereas the Murphy Bill would haveapplied to any action that infringed the protected rights. Although the Evans Bill was givenCabinet support, it was not introduced into Parliament. Attorney-General Lionel Bowenreplaced Evans after the December 1984 Federal election. After being redrafted and itsoperation watered down,47 the Bill was introduced into the Federal Parliament in November1985 as the Australian Human Rights Bill 1985 (Cwlth). It was passed by the House ofRepresentatives but failed to gain majority support in the Senate. Encountering strongopposition, the Bill was finally withdrawn in November 1986.48

The Constitutional Commission and the 1988 Referendum

The Bills promoted by Murphy, Evans and Bowen sought to enact a statutory Bill ofRights. In the wake of the failure of the Bowen Bill, the Hawke Government changed tack.It established the Constitutional Commission in December 1985 to report on the revisionof the Australian Constitution in order, inter alia, to 'ensure that democratic rights areguaranteed,.49 The Commission was assisted by an Advisory Committee on Individual andDemocratic Rights under the Constitution. This Committee reported in 1987.50 It did notrecommend a Bill of Rights as such, but recommended the insertion of several new rightsscattered throughout the Constitution. Overall, the proposal was a relatively modest one.While it proposed new rights such as 'a right to a speedy trial,51 and a right to vote, ratherthan suggesting that the Constitution should guarantee freedom of expression generally,the Committee found that it should only protect expression 'concerning government,public policy, and administration, and politics,.52 Moreover, it recommended that under anew section 117A a Commonwealth or State Parliament should be able to abrogate therights listed in the Constitution by passing legislation expressly stating that a statute was to'operate notwithstanding' the constitutional guarantee.53 .

The Constitutional Commission responded in an interim report in April 1987,54 in which itmade recommendations to expand the scope of the express rights already in theConstitution, but also foreshadowed the need for wider change. For example, it wasrecommended that the protection of religious freedom in section I 16 of the Constitution be

8


extended to laws passed by the States and Territories. The Commission's final report wasprovided in June 1988,55 and was far more ambitious. It proposed significantly greaterprotection for rights by constitutional means than had its Advisory Committee. TheCommission recommended that a new Chapter (Chapter VIA - Rights and Freedomsi6 beinserted into the Constitution, containing a wide range of fundamental rights drawnheavily from the Canadian Charter of Rights and Freedoms.57 It also recommended that aperson whose rights were breached should be able to gain an appropriate remedy in thecourts. The Commission rejected the limited guarantee of expression proposed by itsAdviso~ Committee, and instead recommended a freedom of expression not limited as tocontent. 8 The Commission also rejected the insertion of a provision that would allow theCommonwealth or the States to pass legislation 'notwithstanding'· a guarantee in theConstitution. A majority of the Commission found that a power to 'opt-out' or overrideconstitutional guarantees 'is inconsistent with the whole process of entrenching rights inthe Constitution,.59

Bowen had requested that the Commission provide an interim report so that a referendumto amend the Constitution could be held in 1988, the bicentenary of white settlement ofAustralia. Accordingly, after the interim report had been provided, but before theCommission had completed its final report, the Hawke Government announced that itwould initiate constitutional change. Legislation was introduced to this effect on 10 May1988, with four proposals put to the Australian people on 3 September 1988. Theproposals were derived, with some variations,6o from the recommendations of theConstitutional Commission in its interim report. The first and third proposals concernedfour-year maximum terms for the Federal Parliament and recognition of local government,respectively. The second proposal sought to guarantee 'one vote, one value' by requiringthat the population count in each electorate not deviate by more than 10 per cent. Thisproposal would also have inserted a right to vote into the Constitution.61 The fourthproposal also sought to guarantee basic freedoms, but only by extending the operation ofexisting guarantees in the Constitution.62 Section 80 would have been repealed andreplaced with a provision guaranteeing trial by jury for offences under Commonwealth,State and Territory laws 'where the accused is liable to imprisonment for more than twoyears or any form of corporal punishment'. New sections 115A and 115B would haveextended the guarantee of 'just terms' for any 'acquisition of property' to State laws andlaws made in respect of the Territories by the Commonwealth under section 122 of theConstitution. Finally, section 116 would have been deleted and replaced with a sectionguaranteeing the religious freedom already spelt out in section 116 not just in regard toCommonwealth laws but also in respect of laws passed by a State or Territory.

All four proposals were defeated nationally and in every State. For the proponents ofchange, the results were dismal. The highest national 'Yes' vote for any of the proposalswas 37.10 per cent, which was in respect of the proposal on 'one vote, one value'. Thefourth proposal received an astonishingly low vote, the lowest of any of the proposals.Nationally, 30.33 per cent of voters registered a 'Yes' vote, while 68.19 per cent voted 'No'.

9


This was the lowest 'Yes' vote ever recorded in Australia. In South Australia the 'Yes' votewas only 25.53 per cent, while in Tasmania it was 25.10 per cent. The failure of the 1988referendum undermined any move to insert other rights into the Constitution or toimplement the final report of the Constitutional Commission.

The 1998 Constitutional Convention

The failure of the 1988 referendum was a factor in the lack of headway on rights issues atthe 1998 Constitutional Convention.63 That Convention was called by the FederalGovernment to debate an Australian republic. It was premised on a restricted view of whatit means to be a republic by being based upon the assumption that Australia would becomea republic once there is an Australian as Head of State. The focus of the Convention wason change to the symbols and traditions of the Constitution. Although some delegateswere elected to the Convention on the basis that Australia could not be said to be arepublic unless the Constitution were to protect fundamental freedoms, there was littlesupport for the canvassing of rights issues at the Convention. This was due to the agendaof the Convention being limited to issues concerning whether, when and how Australiamight make the transition to a republic. It was also due to the belief of many republicans atthe Convention, who might otherwise have supported a Bill of Rights, that to consider therepublic and a Bill of Rights concurrently would be to load the republican option with amillstone at any subsequent referendum.

There was, however, some recognition at the 1998 Convention of the need to protect basicrights. The Communique of the Convention64 recognised the need to incorporate a newpreamble to the Constitution in the event of a shift to a republic. It was agreed that thispreamble should include, among other things, affirmation of the rule of law andacknowledgment of the original occupancy and custodianship of Australia by Aboriginalpeoples and Torres Strait Islanders. The Convention left open whether the followingshould also be recognised: affirmation of the equality of all people before the law;recognition of gender equality; and recognition that Aboriginal people and Torres StraitIslanders have continuing rights by virtue of their status as Australia's indigenous peoples.Any force such provisions might have had as an aid to constitutional interpretation wasmuted by the decision of the Convention that the preamble should be of symbolicrelevance only, and should not have any legal effect. To this end, it was resolved thatChapter III of the Constitution should be amended to state that the preamble could not beused to interpret other provisions of the Constitution.

The second way in which the need for greater change was reflected at the Convention wasthat the delegates supported an ongoing constitutional review process. The Conventionresolved that, if a republican system of government were to be introduced by referendum,at a date not less than three years or more than five years thereafter, the Commonwealth

10


Government should convene a further Constitutional Convention. This Convention wouldreview the operation and effectiveness of the republican system of government introducedby a constitutional referendum, as well as address any other matter related to the operationof the Australian system of government under repUblican arrangements, including therights and responsibilities of citizenship and constitutional aspects of indigenousreconciliation. If the Australian people support a repUblic at a referendum, this ongoingconstitutional review process might be an appropriate forum in which to debate the meritsof an Australian Bill of Rights.

Arguments For and Against

There are strong arguments for and against a Bill of Rights for Australia. The mostsignificant arguments are set out below.6

The main arguments for a Bill ofRights are that:

• Australian law affords inadequate protection to fundamental freedoms

• it would give recognition to certain universal rights

• it would give power of action to Australians who are otherwise powerless

• it would bring Australia into line with the rest of the world

• it would meet Australia's international obligations

• it would enhance Australian democracy by protecting the rights of minorities

• it would put rights above politics

• it would improve government policy making and administrative decision making

• it would serve an important educative function, and

• it would promote tolerance and understanding in the community.

The main arguments against a Bill ofRights are that:

• rights are already well protected in Australia

• the political system itself is the best protection of rights in Australia

• it would be undemocratic to give unelected judges the power to override the judgment of aparliament

• it would politicise the Australian judiciary

• it would be very expensive given the amount of litigation it would be likely to generate

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• it would be alien to the Westminster tradition of parliamentary sovereignty

• it would actually restrict rights that is, to define a right is to limit it

• it would ignore legitimate differences between different regions of Australia

• rights listed in constitutions or statutes actually make little or no difference to theprotection of fundamental freedoms

• it would be unnecessary as the High Court is already protecting rights through itsinterpretation of the Constitution and its development of the common law, and

• it would be unable to take account of changing conceptions of rights and would protectsome rights (for example, the right to bear arms) that might not be so important to futuregenerations.

In 1967 Sir Robert Menzies argued that 'the rights of individuals in Australia are asadequately protected as they are in any other country in the world,.66 His position was thatAustralia did not need a Bill of Rights, as basic freedoms were adequately protected by thecommon law and by the good sense of elected representatives as constrained by thedoctrine of responsible government. This reflected the views of the framers of theAustralian Constitution expressed in the 1890s. Sir Owen Dixon, a former Chief Justice ofthe High Court, suggested that the framers questioned why 'doubt be thrown on thewisdom and safety of entrusting to the chosen representatives of the people ... alllegislative power, substantially without fetter or restriction,.67 For these, and other, lessacceptable, reasons (notably the desire to enable the States to pass laws that discriminatedin employment on the basis of race), the framers rejected a clause adapted from the UnitedStates Bill of Rights that would have meant that a State could not 'deprive any person oflife, liberty, or property without due process of law, or deny to any person within itsjurisdiction the equal protection of its laws,.68 .

The rejection of a Bill of Rights by the framers and Menzies, was influenced by the worksof two nineteenth century English constitutional commentators, J Bryce69 and AV Dicey.70Both were sceptical of rights guaranteed in written constitutions. Writing in the context ofresponsible government, Dicey argued that civil liberties could be adequately protectedthrough the common law and political processes.71 The failure to include a Bill of Rightsin the Australian Constitution was consistent with the notion of parliamentary soverei~nty,which Dicey described as the 'dominant characteristic of our political institutions,.7 Byparliamentary sovereignty, Dicey meant 'that Parliament ... has ... the right to make orunmake any law whatever and, further, that no person or body is recognised by the law ofEngland as having a right to override or set aside the legislation of Parliament'.73 This wasexpressed in a diluted form in the Australian Constitution with the grant of plenary powerto the Commonwealth in the specified areas listed mainly in sections 51 and 52, butsubject to the adoption of the United States notion of judicial review, under which theHigh Court can invalidate legislation inconsistent with the Constitution?4 Parliamentary

12


sovereignty found clearer expression in the unwillingness of the Convention delegates tofetter the power of the new Federal and State Parliaments to abrogate human rights.75

This view of a Bill of Rights has not gone unchallenged. Dicey's position has beenundermined in the United Kingdom, where the Human Rights Act 1998 has beenenacted.76 Even among the framers of the Australian Constitution, there were supporters ofentrenched rights. The most notable was Andrew Inglis Clark, a former TasmanianAttorney-General and author of the draft 1891 constitution upon which much of thepresent document is based.77 Richard O'Connor, one of the first justices of the High Court,unsuccessfully argued that rights attaching to the citizenship of the Australian people wereneeded:

We are making a Constitution which is to endure, practically speaking, for all time. Wedo not know when some wave of popular feeling may lead a majority in the Parliamentof a state to commit an injustice by passing a law that would deprive citizens of life,libertY, or propertY without due process oflaw.78

A Bill of Rights has many weaknesses and limitations. Legally protected rights can be'blunt tools for redressing social injustice,.79 Some of these weaknesses are apparent in theCanadian Charter of Rights and Freedoms and, perhaps more clearly, in the United StatesBill of Rights. However, this does not negate the importance of such an instrument inprotecting fundamental rights against the exercise of arbitrary power in a modem State. Astatement of human rights enacted by the Federal Parliament would have the potential tomake a positive and lasting contribution to the liberty of Australians and could promoteimportant values such as tolerance of cultural diversity. Arguably, such a contribution isneeded today, nearly one hundred years after the Australian Constitution came into force.

The statement of Menzies set out above, while accurate when made 30 years ago, arguablycould not be repeated with the same conviction today. Sir Anthony Mason, a former ChiefJustice of the High Court, has become a strong proponent of a Bill of Rights.8o He hasremarked:

the common law system, supplemented as it presently is by statutes designed to protectparticular rights, does not protect fundamental rights as comprehensively as doconstitutional guarantees and conventions on human rights ... The common law is not asinvincible a safeguard against violations of fundamental rights as it was once thought tobe.S!

Brian Burdekin, a former Australian Human Rights Commissioner, also commented in1994 that: 'It is beyond question that our current legal system is seriously inadequate inprotecting many of the rights of the most vulnerable and disadvantaged groups in ourcommunity,.82 Such comments reflect the need to shield basic rights from the exercise ofarbitrary power, such as that exercised in the past to remove indigenous children from theirfamilies. The correctness of these statements has now been recognised in other nations thathad relied upon the common law tradition to protect rights, but have subsequently passedstatutory Bills of Rights. For example, the United Kingdom Parliament has enacted the

13


Human Rights Act 1998 (UK), while the New Zealand Legislature has passed the NewZealand Bill ofRights Act 1990.

AGradual Path Forward

Parliamentary Leadership

A rights regime cannot be imposed upon the Australian people. Neither should it be. Animposed regime would not achieve the aims of a Bill of Rights. Rights are meaninglessunless they exist within an appropriate legal, political and cultural environment. After all,the 1936 USSR Constitution contained a Bill of Rights at the height of the great purgesinitiated by Joseph Stalin. What is necessary is change that engenders a culture of rightsprotection, including a tolerance and respect for rights, built upon the fundamental valuesheld by the Australian people. Accordingly, any scheme that is designed to better protectcivil liberties by way of constitutional or statutory change must be judged according to itsscope, not only to change the text of the law but also to bring about a culture of rightsprotection in Australia. This has been a notable success of the Canadian Charter, whichhas been praised for its 'success in enhancing the 'culture of liberty' in Canada,.83

Any system of rights protection based upon the High Court implying a Bill of Rights fromthe Constitution is inadequate. Implied rights are unlikely to become matters of commonknowledge and invocation if they are created by the High Court, even if they are soundlybased in the text of the Constitution. They lack the sense of community participationpossible as a result of the Federal Parliament bringing about either a statutory orconstitutional Bill of Rights. While judicial leadership on rights is better than noleadership at all, it is a poor substitute for political and popular leadership. It will beextremely difficult to bring about a rights culture in Australia except where rights arefounded upon the commitment of the Australian people and their elected representatives.

The failed 1988 referendum to change the Australian Constitution demonstrated thedifficulty of gaining a 'Yes' vote.84 It showed that bipartisan support is essential forconstitutional change and that the support of the Australian people cannot be assumedeven for a proposal that is designed to protect the rights of Australians as againstgovermnent. Hence, to achieve reform in the area of constitutional rights it will benecessary to build a broad political and popular base for change underpinned by realunderstanding of the issues and proposals. The result of the 1967 referendum, as well as arecent successful referendum in New South Wales that entrenched judicial independenceand the security of tenure of judges in the Constitution Act 1902 (NSW),85 shows that it ispossible to gain the support of the Australian people in favour of changing theConstitution to protect human rights. However, the 1988 result shows that this is by nomeans easy and that any attempt to insert new rights into the Constitution should becarefully considered and prepared.

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AStatutory Bill of Rights

The experience of the New Zealand Bill of Rights Act 1990 demonstrates the potentialeffectiveness of a statutory Bill of Rights and the value, at least initially, of protectingrights using this means rather than by amendment of the Constitution. The UnitedKingdom experience under the Human Rights Act 1998 (UK), which has many similaritiesto the New Zealand model, may also bear this out in the near future. As statutory Bills ofRights, being instruments that are not constitutionally entrenched, they can be repealed oraltered by parliament. They accordingly do not amount to an irrevocable transfer ofsovereign power from the legislature to the judiciary. Despite this limitation, the NewZealand instrument, in the hands of a cooperative judiciary, has made an importantcontribution to the protection of basic freedoms.

The New Zealand Bill of Rights Act offers little on its face value in the way of rightsprotection. It is an ordinary unentrenched Act of the New Zealand Parliament. The Actrecognises a number of rights, ranging from the freedoms of expression (section 14) andassociation (section 17) to the 'right not to be subjected to medical or scientificexperimentation without that person's consent' (section 10). The protection afforded tosuch rights by the statute is limited. Section 2 states that: 'The rights and freedomscontained in this Bill of Rights are affirmed' and section 3 that the Act applies to acts doneby the legislative, executive, or judicial branches or by a person or body in theperformance of a public function carried out under law. Under section 5, the listed rights'may be subject only to such reasonable limits prescribed by law as can be demonstrablyjustified in a free and democratic society'. However, under section 4:

No court shall, in relation to any enactment (whether passed or made before or after thecommencement of this Bill of Rights), -

(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be inany way invalid or ineffective, or

(b) Decline to apply any provision of the enactment -by reason only that the provision is inconsistent with any provision of this Bill ofRights.

At best, the statute allows the judiciary, under section 6, to interpret an enactment of theNew Zealand Parliament so as to prefer 'a meaning that is consistent with the rights andfreedoms contained in this Bill of Rights'. While the meaning of each of sections 4, 5 and6 is clear, they produce a difficult and confusing interaction.86 For example, it is not easyto reconcile the protection afforded to the rights listed in the Act by section 5 with thelimits placed by section 4 upon the power of a court to actually protect such rights. Despitethe apparently limited protection granted by section 6 to the rights listed in the NewZealand Bill ofRights Act, judicial application has meant that the Act has played a prominent,and perhaps unexpected, role in fostering civil liberties.87 The former President of the NewZealand Court of Appeal, Sir Robin Cooke, in a moment of hyperbole, described section 6 as

15


a 'key and strong section' that is 'a weapon of justice' for the judiciary.88 Generally, the Acthas been 'regarded by judges as a fundamental constitutional document which must be givenwhat has been called a purposive interpretation'.89

The effectiveness of the New Zealand Bill ofRights Act suggests that if the goal is to bringabout an effective scheme of rights protection in Australia, there should not be any immediatemove to insert a Bill of Rights in the Constitution. The 1988 referendum and the lack of basicknowledge of Australians about their constitutional system 90 repudiates such a course. Arecent survey also found a 'deep partisan divide among legislators over a bill of rights' andconcluded from this that 'any possibility of constitutional entrenchment by means ofreferendum is out of the question,.91 Instead, a more gradual course should be adopted thatseeks to build and marshal community support and understanding so as to effect social,political and legal change. The Federal Parliament must playa central role in this process.

A first step for the Federal Parliament might be to convene a joint parliamentary committee,or a special commission consisting of both parliamentary and non-parliamentary members, topublicly examine ways in which the Federal Parliament could work to enhance the level ofprotection afforded to fundamental freedoms in Australia. The terms of reference of the bodyshould be drafted to enable it to examine models such as the United Kingdom's HumanRights Act and the New Zealand Bill of Rights Act, and to determine whether a modifiedform of either statute would be appropriate for Australian conditions and the extent to whichthe parliamentary committee system could playa role under such a statute. The body shouldalso be empowered to identify core rights and freedoms consistent with the values ofcontemporary Australians that are the most deserving of protection.

Reform of the Committee System

Parliamentary committees can play an important role in examining legislation forcompliance with human rights principles.92 The Federal Parliament's existing committeesystem reflects this. The Senate Standing Committee for the Scrutiny of Bills examines allbills that come before the Parliament. Under Senate Standing Order 24(l)(a) theCommittee is charged with reporting whether Bills and Acts:

(i) trespass unduly on personal rights and liberties

(ii) make rights, liberties or obligations unduly dependent upon insufficiently definedadministrative powers

(iii) make rights, liberties or obligations unduly dependent upon non-reviewabledecisions

(iv) inappropriately delegate legislative powers, or

(v) insufficiently subject the exercise oflegislative power to parliamentary scrutiny.

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This Committee does not examine delegated legislation. Under Senate Standing Order 23a separate committee, the Senate Standing Committee on Regulations and Ordinances,examines delegated legislation by applying like criteria.

Each of the Canadian Bill ofRights 1960, the New Zealand Bill ofRights Act 1990 and theHuman Rights Act 1998 (UK) contains a non-judicial means of securing compliance.Under section 3 of the Canadian Bill of Rights, section 7 of the New Zealand Bill ofRights Act and section 19 of the Human Rights Act, the Federal Minister of Justice, theAttorney-General or a Minister of the Crown, respectively, are required to report onlegislation introduced into parliament, so as to highlight any inconsistencies andincompatibilities with the rights protected under the relevant instrument. The weakness inthis approach is that it entrusts the responsibility for detecting breaches of the instrumentsto the government that has proposed the legislation. A Canadian commentator hassuggested that: 'To put real teeth into such a provision, a standing committee of the Houseof Commons would have to be established,.93

The Australian committee system might be adapted to make a greater contribution to theprotection of fundamental rights. A joint standing committee of the Federal Parliament, orstanding committees of both the Senate and the House of Representatives, might becreated to examine legislation and delegated instruments for compliance with a statutoryBill of Rights or, in the absence of such a Bill, with an agreed list of fundamental rights.Alternatively, the mandates of the existing Senate Standing Committee for the Scrutiny ofBills and the Senate Standing Committee on Regulations and Ordinances might beextended by expanding the meaning of 'personal rights and liberties' to include a definedset of basic freedoms.

The creation of a committee in the Commonwealth Parliament or the expansion of thebrief of existing committees would serve two primary purposes. It would allow the vettingof legislation before enactment so as to reduce the likelihood of Commonwealthlegislation breaching basic freedoms. It would also build parliamentarians into the rightsprotection process. This latter aspect should contribute to a greater understanding of suchissues by representatives and, through media coverage of committee deliberations,submissions and reports, by the Australian people.

Conslilutional Protection in the Longer Term?

It is difficult to see that any proposal for a Bill of Rights in the Constitution could succeedwithout some process of familiarisation for both the players in the political process and thecommunity. Over time, a statutory Bill of Rights enacted by the Federal Parliament andsupervised through the committee system, perhaps supplemented or even preceded bystatutory Bills of Rights enacted by State and Territory governments,94 would contributepositively to a rights culture within Australian society. This process should also help toestablish which rights are deserving of protection and which are not. In the longer term,

17


those rights that are generally accepted might be incorporated into the Constitution by areferendum held under section 128.

Even after certain rights have been incorporated into the Constitution, it may beappropriate to follow the example of the Canadian Charter of Rights and Freedoms andallow the Federal Parliament to override some or all of such rights by passing legislationexpressly indicating an intent to change the law notwithstanding the constitutionalposition, or by requiring that the Parliament achieve a specified majority.95 In its 1988report, a majority of the Constitutional Commission found that a power to overrideconstitutional guarantees 'is inconsistent with the whole process of entrenching rights inthe Constitution,.96 However, a final decision on whether an override clause would beappropriate in the Australian Constitution would depend upon the operation of a likeclause within a statutory Bill of Rights.

Section 33(1) of the Canadian Charter of Rights and Freedoms provides that: 'Parliamentor the legislature of a province may expressly declare in an Act of Parliament or of thelegislature, as the case may be, that the Act or a provision thereof shall operatenotwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.' Adeclaration made under section 33(1) has, under section 33(3), an operation of five years,after which time the declaration may be re-enacted. It is important to note that the'notwithstanding' clause requirement in section 33(1) does not apply to all of the rightslisted in the Charter, just to the rights listed in sections 2 and 7 to 15. This means that alegislature can abrogate rights such as 'the right not to be arbitrarily detained orimprisoned' (section 9), the rights to equality under the law and freedom fromdiscrimination on the basis of race (section 15), and even the fundamental freedoms listedin section 2 (which include 'freedom of thought, belief, opinion and expression, includingfreedom of the press and other media of communication'). On the other hand, other rightssuch as the right to vote in federal elections (section 3) and the right to 'enter, remain inand leave Canada' (section 6(1» are beyond the reach of a notwithstanding clause. .

Since 1982, the override clause has onl/7 been applied by the Quebec,98 and has neverbeen invoked by the Canadian Parliament. The political price to be paid in invokingsection 33(1) has been too high. For example, a government desiring to override the 'rightnot to be subjected to any cruel and unusual treatment or punishment' in section 13 of theCharter must be jrepared to meet strong and organised resistance from many sections ofthe community,9 This does not necessarily mean that section 33(1) has been a failure. Itcontinue·s to offer an escape valve should the interpretation of the Charter by the Canadianjudiciary ever stand in the way of overriding public policy objectives. An override clausemay thus enable basic rights to be defined and understood as part of a dialogue betweenParliament and the Judiciary, without giving sole responsibility for their protection toeither arm of government.100

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Which Rights?

In protecting rights by statutory means or by constitutional entrenchment difficultdecisions must be made about which rights should be protected. Again, this would best bedetermined over time, step by step. Before seeking to protect a wide range of rights, theParliament might move to protect a few core rights that are obviously regarded as basicand fundamental to Australian democracy. This should not include rights such as 'dueprocess of law' in the Fifth and Fourteenth Amendments to the United States Constitution,which has a highly developed meaning in the United States context but no resonance inAustralia.101 Core rights might include the right to vote, freedom of expression andfreedom from discrimination on the basis of race, sex or disability, or perhaps collectiverights such as the cultural rights of Australia's indigenous peoples. 102 In each case suchrights should be carefully defined and limited. The success of legislation such as theRacial Discrimination Act may mean that it will soon be possible to gain popular andpolitical support for inserting a guarantee of freedom from discrimination on the basis ofrace in the Australian Constitution. Otherwise, a good place to start would be to examinethe rights protected under the International Covenant on Civil and Political Rifhts 1966, orthose favoured by the Constitutional Commission in its 1988 report lO or by theQueensland Electoral and Administrative Review Commission in its 1993 report. 104 Otherrights, such as those in the International Covenant on Economic, Social and CulturalRights 1966, might be examined once a culture of rights protection by way of statutory orconstitutional means has begun to emerge.

Difficult issues arise as to whether the Constitution should ultimately guarantee rights asbetween citizens rather than merely as between citizen and government. Traditionally,constitutional rights in Australia have conferred protection from government action, ratherthan as between private actors, such as landlord and tenant or employer and employee.Where there has been a desire to protect rights between citizens, this has been proposednot by constitutional means, but by statute, such as the Sex Discrimination Act. Thisdelineation needs to be reassessed. Today, the exercise of private rather than public powermay pose the greater threat to the basic rights of Australians. The increasing privatisationof government and the corresponding exercise of what had been considered to be publicpower by large corporati'ons means that it may be appropriate to constitutionally guaranteerights as against non-governmental action. For example, the right to privacy is arguably ingreater danger of abrogation by secret surveillance undertaken by large corporations thanby the actions of government. Given also many Australian prisoners are held in privaterather than ;mblic prisons105 and that there are now more private than public police inAustralia,1O it may no longer be appropriate to limit the protection conferred by theConstitution to protection from governmental action.

19


Conclusion

An incremental approach to protecting rights by statutory means before constitutionalmeans and of protecting certain rights before others is a pragmatic and potentiallyachievable means of bolstering rights protection in Australia. Importantly, it is also aprocess that would allow the oversight of the Federal Parliament at every step incontinuing to build a culture of rights protection. This would maximise the chances ofachieving a workable balance between, enabling the judiciary to foster the rights ofAustralians and not vesting misplaced faith in the courts, to solve Australia's pressingsocial, moral and political concerns.

Endnotes

1. See, for example, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR106.

2. See, for example, Leeth v Commonwealth (1992) 174 CLR 455 at 470.

3. See G. Williams, 'Lionel Murphy and Democracy and Rights' in M. Coper and G. Williams,eds, Justice Lionel Murphy - Influential or Merely Prescient? Federation Press, 1997, p. 50.

4. Amendment of the Australian Constitution is provided for by section 128 of the instrument,which allows for a referendum of electors initiated by the Federal Parliament. This is the onlyway that the text of the Constitution can be altered, section 128 providing that 'ThisConstitution shall not be altered except' in the manner set out in that section.

5 See G. Williams, Human Rights under the Australian Constitution, Oxford University Press,1999, pp. 103-10.

6. Compare Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237, p.267 per Murphy J. (The Constitution makes no discrimination between the sexes. It may bethat an implication should be drawn from its terms that the Parliament's legislative powers donot extend to authorising arbitrary discrimination between the sexes).

7. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

8. P. Hogg, Constitutional Law ofCanada Carswell, 4th ed., 1997, p. 779.

9. See Human Rights Act 1993 (NZ).

10. See P. Bailey, Human Rights: Australia in an International Context, Butterworths, 1990,Chapters 6, 7; N. O'Neill and R. Handley, Retreatfrom Injustice: Human Rights in AustralianLaw, Federation Press, 1994, Chapter 17 see also Privacy Act 1988 (Cwlth).

11. See also Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cwlth);Equal Employment Opportunity (Comnwnwealth Authorities) Act 1987 (Cwlth); PublicService Act 1922 (Cwlth).

12. Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

20


13. Human Rights and Equal Opportunity Commission Act 1986 (Cwlth). See P. Bailey, HumanRights: Australia in an International Context Butterworths, 1990, Chapter 5. Note that theHuman Rights Legislation Amendment Bill 1998 and the Human Rights LegislationAmendment Bill No 2 1999 propose important changes to the Human Rights and EqualOpportunity Commission. For example, under the Human Rights Legislation Amendment Bill1998, the Commission's inquiry and determination functions would be repealed and replacedwith a scheme whereby complaints not resolved through conciliation could be continued inthe Federal Court in order to obtain an enforceable determination. Under the Human RightsLegislation Amendment Bill No 2 1999, the Commission would be restructured and renamedthe Human Rights and Responsibilities Commission.

14. K. Guest, The Elusive Promise of Equality: Analysing the Limits of the Sex DiscriminationAct 1984, Research Paper no. 16, Department of the Parliamentary Library, 1998-99.

15. Kartinyeri v Commonwealth (1998) 152 ALR 540.

16. (1996) 187 CLR 1.

17. Commonwealth v Tasmania (1983) 158 CLR 1.

18. ibid.

19. Richardson v Forestry Commission (1988) 164 CLR 261; Queensland v Commonwealth(Tropical Rainforests Case) (1989) 167 CLR 232; Victoria v Commonwealth (IndustrialRelations Act Case) (1996) 187 CLR 416.

20. Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 at 259 per Deane J.

21. Koowarta v Bjelke-Petersen (1982) 153 CLR 168.

22. Viskauskas v Niland (1983) 153 CLR 280; University ofWollongong v Metwally (1984) 158CLR 447. See generally A. R. Blackshield and G. Williams, Australian Constitutional LawAnd Theory: Commentary and Materials, Federation Press, 2nd ed, 1998, Chapter 7.

23. H. Gibbs, 'The Constitutional Protection of Human Rights' Monash University Law Review,vol. 9 (1), 1982, p. 13.

24. Mabo v Queensland (No 1) (1988) 166 CLR 186; Western Australia v Commonwealth (NativeTitle Case) (1995) 183 CLR 373. Recent amendments to the Native Title Act 1993 (Cwlth) bythe Native Title Amendment Act 1998 (Cwlth) may mean that these results would not now bereached by the High Court.

25. Criminal Code Amendment Act 1997 (Tas), sections 4, 5.

26. Australian Capital Territory Attorney-General's Department, A Bill of Rights for the ACT?(Australian Capital Territory, 1993; Constitutional Committee of the Victorian Parliament,Report on the Desirability or Othe/wise ofLegislation Defining and Protecting Human RightsGovernment Printer, 1987; Electoral and Administrative Review Commission, Report onReview of the Preservation and Enhancement of Individuals' Rights and Freedoms Electoraland Administrative Review Commission, August 1993; Sessional Committee onConstitutional Development, Final Draft Constitution for the Northern Territory LegislativeAssembly of the Northern Territory, August 1996. Compare Legal, Constitutional and

21


Administrative Review Committee, The Preservation and Enhancement ofIndividuals' Rightsand Freedoms: Should Queensland Adopt a Bill ofRights? (November 1998).

27. Constitution (Declaration of Rights) Bill 1959 (Qld); Constitution (Declaration of Rights andFreedoms) Bill 1988 (Vic). See Australian Capital Territory Attorney-General's Department,A Bill of Rights for the ACT? Australian Capital Territory, 1993, pp. 91-3; Electoral andAdministrative Review Commission, Report on Review of the Preservation and Enhancementof Individuals' Rights and Freedoms Electoral and Administrative Review Commission,August 1993, pp. 51-3.

28. See P. Bailey, Human Rights: Australia in an International Context, Butterworths, 1990, pp.51-5; H. Charlesworth, 'The Australian Reluctance About Rights' Osgoode Hall Law Journal,vol 31 (1), 1993, pp. 205-10; B. Galligan, 'Australia's Rejection of a Bill of Rights' Journal ofCommonwealth and Comparative Politics, vol. 28, 1990, p. 344; P. Hanks, 'ConstitutionalGuarantees' in H. P. Lee and G. Winterton, eds., Australian Constitutional Perspectives 1992,pp. 123--6; N. O'Neill and R. Handley, Retreat from Injustice: Human Rights in Australian LawFederation Press, 1994, pp. 79-83.

29. Voting in a referendum is compulsory under section 45 of the Referendum (MachinelYProvisions) Act 1984 (Cwlth).

30. For the results of each referendum, see A. R. Blackshield and G. Williams, AustralianConstitutional Law and TheOlY: CommentalY and Materials, Federation Press, 2nd ed, 1998,pp.1183-8.

31. Post-war Reconstruction: A Case for Greater Commonwealth Powers, Government Printer,1942, p. 116.

32. Constitutional Alteration (post-War Reconstruction and Democratic Rights) Bill 1944(Cwlth).

33. The 'Yes' vote is sometimes cited as being 90.77 per cent. However, this figure excludes thefact that 1.58 per cent of votes cast were informal.

34. See B. Attwood and A. Markus, The 1967 Referendum, or When Aborigines Didn't Get theVote, Aboriginal Studies Press, 1997, Chapter 5.

35. Section 41 of the Constitution states: 'No adult person who has or acquires a right to vote atelections for the more numerous House of the Parliament of a State shall, while the rightcontinues, be prevented by any law of the Commonwealth from voting at elections for eitherHouse of the Parliament of the Commonwealth'.

36. A.]{. Blackshield and G. Williams, Australian Constitutional Law and TheOlY: CommentalYand Materials, Federation Press, 2nd ed, 1998, pp. 160-1. See P. Stretton and C. Finnimore,'Black Fellow Citizens: Aborigines and the Commonwealth Franchise' Australian HistoricalStudies 1993, vol. 25, p. 521.

37. Commonwealth Electoral Act 1962 (Cwlth).

38. Kartinyeri v Commonwealth (1998) 152 ALR 540.

39. Human Rights Bill 1973 (Cwlth), sections 11, 16, 18, 19.

40. ibid., section 12.

22


41. Commonwealth Parliamentaly Debates, vol 58, Senate, 21 November 1973, p. 1972.

42. ibid., pp. 1972-4.

43. Human Rights Bill 1973 (Cwlth), section 5(3). As to the effectiveness of such a clause, see G.Williams, 'Locking in the GST Rate', Research Note no. i2, Department of the ParliamentaryLibrary, 1998-99.

44. Human Rights Bill 1973 (Cwlth), section 40.

45. See G. Williams, 'Lionel Murphy and Democracy and Rights' in M. Coper and G. Williams,eds., Justice Lionel Murphy -influential or Merely Prescient? Federation Press, 1997, p. 50.

46. H. Charlesworth, 'The Australian Reluctance About Rights', Osgoode Hall Law Journal vol. 31(1), 1993, pp. 208-9.

47. See ibid., p. 209; N. O'Neill and R. Handley, Retreat from injustice: Human Rights inAustralian Law, Federation Press, 1994, pp. 81-2.

48. The Government was, however, successful in enacting the Human Rights and Equal OpportunityCommission Act i986 (Cwlth).

49. Constitutional Commission, Final Report of the Constitutional Commission, AGPS, 1988,vol. 1, p. 1.

50. Constitutional Commission, Report of the AdvisOlY Committee on individual & DemocraticRights under the Constitution, AGPS, 1987.

51. ibid., p. 49.

52. ibid., p. 55.

53. ibid., p. 38.

54. Constitutional Commission, First Report of the Constitutional Commission, AGPS, 1988, 2vols.

55. Constitutional Commission, Final Report of the Constitutional Commission, AGPS, 1988, 2vols.


57. See G. Ferguson, 'The Impact of an Entrenched Bill of Rights: The Canadian Experience',Monash University Law Review, vol. 16, pp. 216-17.


59. ibid., p. 492.

60. See P. Hanks, 'Constitutional Guarantees' in G. Winterton and H. P. Lee, eds, AustralianConstitutional Perspectives, 1992, pp. 125-6.

61. Constitution Alteration (Fair Elections) Bill 1988.

62. Constitution Alteration (Rights and Freedoms) Bill 1988.

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63. See, on the Convention, G. Williams, 'The 1998 Constitutional Convention - FirstImpressions', Current Issues Briefno. 11, Department of the Parliamentary Library, 1997-98.

64. Report of the Constitutional Convention, vol. 1, Report of Proceedings, Commonwealth ofAustralia, 1998, pp. 42-50.

65. This list includes arguments from P. Bailey, Human Rights: Australia in an InternationalContext Butterworths, 1990, pp. 62-76; Constitutional Commission, Report of the AdvisoryCommittee on Individual and Democratic Rights under the Constitution AGPS, 1987,Chapters 3 and 4; M. Kirby, 'The Bill of Rights Debate' Australian Lawyer, vol. 29, no. 11,December 1994, p. 16; Legal, Constitutional and Administrative Review Committee, ThePreservation and Enhancement of Individuals' Rights and Freedoms: Should QueenslandAdopt a Bill of Rights? Legislative Assembly of Queensland, Issues Paper no. 3, September1997, pp. 8-9; M. Zander, A Bill ofRights? Sweet & Maxwell, 4th ed. 1997.

66. R. Menzies, Central Power in the Australian Commonwealth, Cassell, 1967, p. 54.

67. O. Dixon, Jesting Pilate, Law Book Co, 1965, p. 102.

68. G. Williams, Human Rights under the Australian Constitution Oxford University Press, 1999,pp. 37---42; J. M. Williams, 'Race, Citizenship and the Formation of the AustralianConstitution: Andrew Inglis Clark and the "14th Amendment"', Australian Journal ofPoliticsand History, vol. 42, 1996.

69. J. Bryce, The American Commonwealth, Macmillan, 1st ed. 1888, 3rd ed. 12 vols.

70. A. V. Dicey, Introduction to the Study of the Law of the Constitution, Macmillan, 1st ed.1885, 10th ed. 1959.

71. ibid., pp. 195-202.

72. ibid., p. 39.

73. ibid., pp. 39---40.

74. J. A. Thomson, 'Constitutional Authority for Judicial Review: A Contribution from theFramers of the Australian Constitution' in G. Craven, eds, The Convention Debates 1891-1898:Commentaries, Indices and Guide Legal Books, Sydney, 1986, vol. 6, p. 173.

75. See O. Dixon, Jesting Pilate, Law Book Co, 1965, p. 101-2.

76. See also E. Barendt, 'Dicey and Civil Liberties', Public Law, 1985, p. 596.

77. See J. M. Williams, 'With Eyes Open': Andrew Inglis Clark and our Republican Tradition'(1995), Federal Law Review, vol. 23, p. 149; J. M. Williams, 'Race, Citizenship and theFormation of the Australian Constitution: Andrew Inglis Clark and the '14th Amendment',Australian Journal ofPolitics and HistOlY, vol. 42, 1996, p. 10.

78. Official Record of the Debates of the Australasian Federal Convention, 1891-1898, reprintedLegal Books, 1986, vol. 4, Melbourne, p. 688.

79. J. Bakan, Just Words: Constitutional Rights and Social Wrongs, University of Toronto Press,1997, p. 152.

24


80. See A. Mason, 'A Bill of Rights for Australia?', Australian Bar Review, vol. 5, 1989, p. 79.Compare H. Gibbs, 'The Constitutional Protection of Human Rights', Monash University LawReview, vol. 9, 1982, p. I.

81. A. Mason, 'The Role of a Constitutional Court in a Federation: A Comparison of theAustralian and the United States Experience', Federal Law Review, vol. 16 (I), 1986. See J.A. Toohey, 'A Government of Laws, and Not of Men?', Public Law Review, vol. 4, 1993, p.163.

82. B. Burdekin, 'Foreword' in P. Alston, ed., Towards an Australian Bill of Rights Centre forInternational and Public Law, Australian National University, 1994, p. v.

83. R. Penner, 'The Canadian Experience with the Charter of Rights: Are there Lessons for theUnited Kingdom?', Public Law, 1996, p. 123.

84. See B. Galligan and J. R. Nethercote, The Constitutional Commission and the 1988Referendums, Centre for Research on Federal Financial Relations, Australian NationalUniversity, 1989.

85. Constitution Act 1902 (NSW), section 7B and Part 9, as amended by the Constitution(Entrenchment) Amendment Act 1992 (NSW).

86. A. S. Butler, 'The Bill of Rights Debate: Why the New Zealand Bill of Rights Act 1990 is aBad Model for Britain', Oxford Journal ofLegal Studies, vol. 17, 1997, p. 323.

87. P. A. Joseph, 'The New Zealand Bill of Rights', Public Law Review, vol.7, 1996, p. 162.

88. R. A. Cooke, 'A Sketch from the Blue Train: Non-Discrimination and Freedom of Expression:The New Zealand Contribution', New Zealand Law Journal, vol. 10, 1994, p. 10.

89. J. Elkind, 'New Zealand's Experience with a Non-Entrenched Bill of Rights' in Alston ed.,Towards an Australian Bill of Rights, Centre for International and Public Law, Canberra,1994, p. 252.

90. Civics Expert Group, Whereas the People: Civics and Citizenship Education, AGPS,1994.See K. Krinks, 'Creating the Active Citizen? Recent Developments in Civics Education',Research Paper no. 15, Department of the Parliamentary Library, 1998-99.

91. B. Galligan and I. McAllister, 'Citizen and Elite Attitudes Towards an Australian Bill of Rights'in B. Galligan and C. Sampford, eds, Rethinking Human Rights, Federation Press, 1997, pp.145-6. The same conclusions were reached by the Senate Standing Committee onConstitutional and Legal Affairs, A Bill ofRights for Australia? An Exposure Report for theConsideration ofSenators, AGPS, 1985, p. 35.

92. See D. Kinley, The European Convention on Human Rights: Compliance withoutInc01poration, Dartmouth, 1993.

93. P. H. Russell, 'A Democratic Approach to Civil Liberties' University ofToronto Law Journal,vol. 19, 1969, p. 126. See J. L. Hiebert, 'A Hybrid Approach to Protect Rights? An Argumentin Favour of Supplementing Canadian Judicial Review with Australia's Model ofParliame~taryScrutiny' Federal Law Review, vol. 26, 1998, p. 115.

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94. Following the enactment of the Canadian Bill of Rights 1960, statutory Bill of Rights werealso enacted by Alberta (Alberta Bill ofRights 1972 (Alberta)) and Quebec (Quebec CharterofHuman Rights and Freedoms 1975 (Quebec)).

95. M. R. Wilcox, An Australian Charter ofRights? Law Book Co, 1993, pp. 265-6 has suggestedthat an override might be permitted where it is supported by the Australian people voting at areferendum. However, this would set too high a standard. It would also achieve little given that,in any event, a referendum would be sufficient to amend the Constitution to expunge the right.


97. On one occasion, Saskatchewan also sought to take advantage of section 33(1), but thisultimately proved unnecessary when the Supreme Court of Canada held that theSaskatchewan law did not breach the Charter. See RWDSU v Saskatchewan [1987] 1 SCR460.

98. Quebec did not give its approval to the Canadian Charter of Rights and Freedoms. It arguedthat a federal Charter is unnecessary in Quebec given the Quebec Charter of Human Rightsand Freedoms 1975. Much of Quebec's use of section 33(1) came as a protest against theimposition of the Charter of Rights and Freedoms. Soon after the Charter came into effect, theQuebec Parliament passed An Act Respecting the Constitution Act 1982, which added astandard-form 'notwithstanding' clause to every statute then in force in Quebec. Each newpiece of legislation was also drafted to include the 'notwithstanding' clause. This latterpractice stopped with a change of government in Quebec in December 1985. When, undersection 33(3) of the Charter, the 1982 Act ceased to operate after five years in 1987, the newParliament also failed to re-enact the 'blanket override' in the Act. This government did,however, apply the notwithstanding clause in five pieces of legislation, including in An Act toAmend the Charter of the French Language 1988, which prohibited the use of the Englishlanguage on outside commercial signs. See J. L. Hiebert, 'Why Must a Bill of Rights be aContest of Political and Judicial Wills? The Canadian Alternative' Public Law Review vol. 10,1999, p. 34; P. Hogg, Constitutional Law ofCanada Carswell, 4th ed, 1997, p. 909.

99. P. Hogg, Constitutional Law ofCanada Carswell, 4th ed, 1997, p. 914.

100. J. L. Hiebert, 'Why Must a Bill of Rights be a Contest of Political and Judicial Wills? TheCanadian Alternative' Public Law Review, vol. 10, 1999, p. 22.

101. F. Brennan, 'An Australian Convert from a Constitutional Bill of Rights', Public Law Review,vol. 7,1996, p. 132.; F. Brennan, 'Thirty Years On, Do We Need a Bill of Rights?', AdelaideLaw Review, vol. 18, 1996, p. 123.

102. See F. Brennan, 'The Indigenous People" in P. D. Finn, ed., Essays on Law and Government:Principles and Values, Law Book Co, 1995, vol. 1, p. 33; F. Brennan, Securing a BountifulPlace for Aborigines and Torres Strait Islanders in a Modern, Free and Tolerant AustraliaConstitutional Centenary Foundation, 1994; Constitutional Commission, Report of theAdvisO/y Committee on Individual and Democratic Rights under the Constitution, AGPS,1987, Chapter 10; Sessional Committee on Constitutional Development, Final DraftConstitution for the Northern TerritO/y, Legislative Assembly of the Northern Territory,August 1996.

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103. Constitutional Commission, Final Report of the Constitutional Commission, AGPS, 1988, 2vols; See M. R. Wilcox, An Australian Charter ofRights? Law Book Co, 1993 pp. 249, 252-61.

104. Electoral and Administrative Review Commission, Report on Review ofthe Preservation andEnhancement of Individuals' Rights and Freedoms Electoral and Administrative ReviewCommission, August 1993. For a table comparing the rights recommended in this report asagainst the rights put forward in the 1988 report of the Constitutional Commission and therights listed in the Australian Human Rights Bill 1985 (Cwlth) and the Constitution(Declaration of Rights and Freedoms) Bill 1988 (Vic), see Legal, Constitutional andAdministrative Review Committee, The Preservation and Enhancement ofIndividuals' Rightsand Freedoms: Should Queensland Adopt a Bill of Rights? Legislative Assembly ofQueensland, Issues Paper no. 3, September 1997, pp. 10-2. Compare Legal, Constitutionaland Administrative Review Committee, The Preservation and Enhancement of Individuals'Rights and Freedoms: Should Queensland Adopt a Bill ofRights? November 1998.

105. See Corrections Act 1986 (Vic). In 1997-98, 15.4 per cent of the prisoner population(excluding periodic detainees) was held in privately operated prisons inAustralia (up from 7.9per cent in 1996--97): Steering Committee for the Review of Commonwealth/State ServiceProvision, Report on Government Services I999, volume I: Education, Health, Justice,AusInfo, 1999. In some jurisdictions, the percentage of prisoners in private gaols is muchhigher, such as in Victoria where the percentage is 50 per cent: R. Harding, 'Private Prisons inAustralia: The Second Phase', Trends and Issues in Crime and Criminal Justice no. 84,Australian Institute of Criminology, April 1998.

106. C. D. Shearing and P. C. Stenning, eds., Private Policing, Sage, 1987. According to T.Prenzler and R. Sarre, 'Regulating Private Security in Australia', Trends and Issues in Crimeand Criminal Justice no. 98, Australian Institute of Criminology, November 1998, p. I:'Police numbers have not declined relative to population, but have been outstripped bysecurity. The gap would be considerably wider if one were to include unlicensed personnel'.Prenzler and Sarre at 2 (Table I) give the number of police in Australia as at July 1997 as'42093 and the number of security personnel as 94 676.

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